Francis Sakala (Suing as Headman of the Busoli Royal Establishment ) and Ors v Chieftainess Chiawa and Ors (2024/HP/0792) [2025] ZMHC 22 (31 March 2025)

IN THE IDGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA ( Civil jurisdiction) BETWEEN: 2024/HP/0792 FRANCIS SAKALA (Suing as Headman of the Busoli Royal Establishment) FELIX CHIBOMBOMA (Suing as Headman of the Busoli Royal Establishment) RED IS NKOMESHYA (Suing as Senior Headman of the Busoli Royal Establishment) FRANK MAT AB AB ULA (Suing as Senior Headman of the (Busoli Royal Establishment) T PLAINTIFF 2ND PLAINTIFF 3RD PLAINTIFF 4TH PLAINTIFF AND CHIEFTAINESSCIIlAWA SINOMINE RESOURCES GEOLOGICAL LTD DECO LUCK INVESTMENT LIMITED 1 ST DEFENDANT 2ND DEFENDANT 3RD DEF'ENDANT For the . Plaintiffs: Mr. Waxon Shakalima ofTK Ndhlovu and Company For the pt Defendant: Mr. C. Nyangu of Mosha and Company _!or the 2"d & 3rd Defendants: Mr. L. C. Zulu of Malambo and Company RULING CASES REFERRED TO:_ 1. Felix Brian Mkumbwanyama Chasha and Others V Elizabeth Mulenje (Hrh Senior Chicftainess Nkomeshya Mukamambo Ii) and the Attorney General APPEAL N9 89 /2018. LEGISLATION REFFERED TO: 1. The Rules of the Supreme Court of England 1999 Edition 2. High Cou1t Rules Chapter 27 of The Laws of Zambia; OTHER WORKS REFERRED TO: 1. Zuckerman on Civil Procedw·e: Principles of Practice, 4th Edition; 2. Patrick Matibini on Zambian Civil Procedure: Commentary and Cases, Volume 1; 3. Loughlin and Gerlis on Civil Procedure 1st Edition (2004) 4. Halsbury's Laws of England, Fourth Edition 1.0 INTRODUCTION 1.1 This is a ruling on the 2nd and 3rd Defendant's application to set aside the injunction granted to the Plaintiffs by this Court on 23rd December, 2024 for failure by the Plaintiffs to provide an undertaking as to damages. It was made pursuant to order 32 Rule 1 as read with order 29 role 1(3) of the Rules of the Supreme Court 1999 Edition. 2.0 BACKGROUND 2.1 The background leading to this application is that on 6th June, 2024 the Plaintiffs commenced an action against the Defendants via writ of summons claiming the following; 1. An. Order that the use of the Plaintiff's Land by the Defendants without Consent of the Plaintiffs is illegal and Unlawful. 2. An Order to restrain the Defendants from illegal Mining, cutting of trees and Tearing of hills in the Plaintiffs Land. 3. An Order of Eviction against the 2nd and 3rd Defendant from Nkomeshya Chiefdom. 4. An Order that the Consent to mine by the pt Defendant is Null and Void. 5. Costs. 6. Interest. 7. Any other relief the court would deem fit. 2.2 On 23rd December, 2024, this Court granted the Plaintiffs' application for interim injunction pending the determination of this matter or further order of the Court. 2.3 Consequently, on 6th June, 2024 the 2nd and 3rd Defendants filed the herein application to set aside the aforen1entioned Injunction for failure by the Plaintiffs to provide an undertaking as to damages. R2 4.0 AFFIDAVIT IN SUPPORT OF THE APPLICATION 4.1 The affidavit in support of the application was filed into court on 25 th February, 2025. It was deposed by Huang Xiong Hui the administrator in the 3rd Defendant company. 4.2 He deposed inter alia that the 3rd Defendant is a holder of a Large-Scale Mining License Number 38673-HQ-LML covering the area in issue in these proceedings issued on 11 th November, 2024 by the Ministry of Mines and Minerals Development. A copy of the Large-Scale Mining License together with the accompanying conditions and a copy of the diagram of the area in issue were exhibited and marked "HXHl" and "HXH2" respectively. 4.3 Further, that the 3rd defendant had fulfilled all the conditions for the grant of the large-scale mining license hence it was destined to commence mining operations by the end of April 2025. That the Plaintiffs, however, obtained an interim injunction against the Defendants on 23rd December, 2024 restraining the Defendants from carrying on developments of the mine in the disputed area and all other activities specified in the ruling pending the determination of the main matter. 4.4 Furthermore, that he had been advised by Counsel for the 2nd and 3rd Defendants that it is a well-established principle oflaw that a party seeking an interim injunction must provide an undertaking as to damages to compensate the other party in the event that the injunction is later found to have been wrongly granted. That, however, the Plaintiffs have failed, neglected or refused to provide such an undertaking as to damages thereby rendering the interim injunction irregular and liable to be set aside. R3 4.5 It was his further averment that as a result of the injunction granted in favor of the Plaintiffs on 23Id December, 2024 all operations at the mining site ceased save for critical maintenance operations. That as a result, the Defendant has continued to incur loss and daily expenses for maintenance of the premises. He indicated the total loss incurred by the 3rd Defendant as at the date of this affidavit to be USSD28,054.20. As proof thereof, a copy of a spreadsheet detailing the daily losses was exhibited marked as "HXH3." Further that the Defendants stand to suffer irreparable harm and financial loss if the injunction remains in force without the Plaintiffs providing the requisite undertaking as to damages in the form of a performance bond as the said Plaintiffs do not have financial capacity to make good any losses currently being suffered by the 3rd Defendant. 4.6 He also deposed that the 3rd Defendant had been in the process of concluding construction of a mine plant, a processing Plaint and an access road prior to the injunction being granted in favor of the Plaintiffs. That the said mine plant and processing plant were 50 and 70 percent complete respectively. As proof thereof, photos of the mine and processing plant were exhibited collectively marked "HXH4." 4. 7 It was thus his averment that he was advised by Counsel that the order of injunction makes no provision for the protection of the Defendants' interests in the event that the injunction is later found to have been wrongly granted. 5.0 AFFIDAVIT IN OPPOSITION TO THE APPLICATION 5.2 The affidavit in opposition was filed into court on 10th March, 2025 and was deposed by Francis Sakata the 1st Plaintiff in this matter. R4 5. 3 He deposed that both the Plaintiff and 1st Defendant had applied for an interim injunction. That their injunction application was accompanied by an order that contained an undertaking. However, this Court decided both injunction applications by the parties by rendering a single ruling dated 23rd December 2024. As proof thereof, he exhibited a copy of the said ruling marked "FS 1." 5 .4 Further that in any event it is a well-known principal oflaw that the Court cannot set aside an Injunction on account of an undertaking as guided by superior Courts and that even if the Defendants are successful after full determination of the matter damages will follow the event. 6.0 AFFIDAVIT IN REPLY 6.1 The affidavit in reply was filed into Court on I Ph March, 2025 and was deposed by Huang Xiong Hui the Administrator in the 3rd Defendant C01npany. 6.2 He deposed that the Plaintiffs summons for an order of interim injunction did not contain an undertaking as to damages. That, the Plaintiffs claim that this application is a waste of Court's time is without merit as the Defendants are suffering irreparable harm and significant financial losses on a daily basis due to the injunction, which the Plaintiffs have no capacity to make good in damages. 6.3 Further that he has become aware of the demise of senior Headman Regis Nkomeshya who according to the official website for Chongwe Municipal Council, was reported to have passed away on Sunday 1st September 2024. That despite this, the Plaintiffs have omitted to disclose this material fact to the Court. As a result, the Late Regis Nkomeshya continues to be cited as the )!d Plaintiff in this action. As proof thereof, he exhibited a copy of RS a screenshot of the Chongwe Municipal Council website carrying the Notice of Demise of the 3rd Plaintiff marked "HXHla." 6.4 It was his averment that the Plaintiffs have not demonstrated any financial capacity to compensate the Defendants for on going losses which now exceed USD 1.7 Million (as of date of their affidavit) and will not do so unless ordered by the Court. 6.5 He said that the Plaintiffs failure to disclose the death of one of their Co Plaintiffs further demonstrates their lack of transparency and good faith in these proceedings and raises serious questions about their ability to fulfil any financial obligations including an undertaking as to damages given that their ranks have been diminished by the loss of a key member. That the death of . Senior Headman Nkhomeshya further weakens the remaining Plaintiffs collective financial standing as his estate may not be liable for any damages arising from this matter. 7 .0 SUBMISSIONS 7 .1 Both parties filed skeleton arguments which will be considered in the determination of this application. 8.0 HEARING OF THE APPLICATION 8.1 ARGUMENTS IN SUPPORT OF THE APPLICATION 8.1.1 The matter ca1ne up for hearing on 11 th March, 2025. At the said hearing, Mr. Zulu, Counsel for the Defendant, submitted that the application was supported by an affidavit filed into court on 25 th February, 2025 together with skeleton arguments. Further reliance was placed on the affidavit in reply filed into court on 11 th March, 2025 together with the accompanying skeleton arguments. R6 8.1.2 Counsel went on to argue that, it is trite law that an Applicant who seeks an order of Court for an injunction must give an adequate undertaking as to damages. He submitted that in the matter at hand, the 2nd and 3rd Defendants feel that they have not been protected since the order of injunction granted by this Court only took into consideration the interests of the Plaintiffs and in respect of the counter injunction, the interests of the 1st Defendant. 8.1.3 Further, that the 2nd and 3rd Defendants have raised a plea in the application to have the injunction discharged as the Plaintiffs have no capacity to make good any of the loses or damages that they may sustain as a result of the injunction. 8.1.4 Counsel argued that in the alternative, should the Court be inclined to maintain the injunction, the Plaintiffs must fortify their undertaking as it is the 2nd and 3rd Defendant's position that where the Court is in doubt about the enforceability of the undertaking it must require the Applicant to fortify their undertaking by providing adequate security especially where the Applicant is a nominal claimant as is the case herein where all the four ( 4) Plaintiffs are suing on behalf of the Busoli Royal Establishment. 8.1. 5 Counsel submitted that the exercise of a jurisdiction to grant an injunction is an equitable jurisdiction. Counsel urged the Court to strictly apply the doctrines of equity, and that in this particular case, he who seeks equity must do equity. 8.1.6 Lastly, that their understanding of the holding in the Court of Appeal decision of Felix Brian Mukumbwanyama Chasha cited by the Plaintiff R7 in their skeleton arguments is that failure to give an undertaking is not fatal to render an injunction ineffective. 8.1. 7 He augmented that the 2nd and 3rd Defendant's position is that the caption in that matter did not make a pronouncement of a legal principle applicable to all cases. That the caption cited with approval the learned authorities ofHalsbury Law of England which stated that un undertaking must always be given thus the cases cited by the Plaintiffs does not help their cause since it did not lay down a general principle of law but was restricted to that case. Counsel further relied on the affidavit and skeleton arguments filed into Court on 25th February, 2025 and the affidavit in reply dated 11 th March, 2025 together with the skeleton arguments of even date. He urged this Court to either set aside the injunction or order that the Plaintiff gives an undertaking. · 8.1.8 Mr. Ngungu Counsel for the ist Defendant supported the application. He submitted that the 2nd and 3rd Defendants will suffer loses and, therefore, it must be made clear as to who will bear the loses. 8.2 ARGUMENTS IN OPPOSITION OF THE APPLICATION 8.2.1 Mr Shakalima, Counsel for the Plaintiff relied on the contents of the affidavit in opposition and skeleton arguments filed into court on 10th March, 2025. He added that, as the record will show, when they filed the application for an injunction, they filed it together with an ex-parte order for injunction and a perusal of the same will show that an undertaking as to damages was included. 8.2.2 Counsel drew the Courts attention to the summons filed by the 2nd and 3rd Defendant especially prayer nu1nber 2 where it was observed that the Defendants are claiming in the alternative an undertaking which is already RS on record, and that even in a situation where an undertaking is omitted that can be regularized. 8.2.3 Further, that in the case of P Mukumbanyama Chasha & Others V Elizabeth Mulenye & Attorney General cited by Counsel for the 2nd and 3rd Defendants, the Court refused to set aside an injunction on the account of an undertaking. Furthermore, that it is trite law that rulings delivered by the Court after an inter-parte hearing in most cases have no indication as to undertakings. 8.2.4 He argued that what is noted is that this application is an afterthought and is irregular as they believe that if the 2nd and 3rd Defendants wanted an inclusion of an undertaking, they would have applied for a review. In this vein, it was their prayer that the application be dismissed as the same lacks merit. 8.3 ARGUMENTS IN REPLY TO THE APPLICATION 8.3.1 In reply, Mr. Zulu submitted that the 2nd and 3rd Defendants have not taken this application as an afterthought. That rather they have done so as a result of the colossal financial loses that they are sustaining on a daily basis as a result of the injunction as shown in the affidavit in support filed on 25 th February, 2025. 8.3.2 He argued that it is within the 2nd and 3rd Defendants rights when circumstances have changed, as is the case herein where they are sustaining loses, to apply to vary the injunction. It was their prayer that the injunction is set aside or in the alternative that the Plaintiff fortifies their undertaking. R9 9.0 DECISION 9.1 I have seriously considered the application together with the affidavit evidence and argun1ents advanced by the parties. The issue for my consideration herein is firstly, whether the injunction granted by this Court on 23rd December, 2024 should be discharged for failure to give an undertaking. Secondly, in the alternative, whether this Court should order the Plaintiffs to give an undertaking as to damages. 9.2 An undertaking as to damages is a promise by the party seeking an injunction that they will compensate the other party for any damages caused by the injunction if it is later found that the injunction should not have been ordered. Zuckerman in his book on Civil Procedure: Principles of Practice stated that: "As a condition for obtaining an interim injunction, a Plaintiff must give, unless the court orders otherwise, an undertaking to the court to pay any damages sustained by the respondent that the court considers the Plaintiff should pay." 9.3 The learned authors of The Halsbury's Laws of England, Fourth Edition, Re-issue at paragraph 804 on interlocutory injunctions, state that: "With limited exceptions, the person applying/or an interlocutory injunction must always give an undertaking to pay damages in case it should turn out at the hearing that he is in the wrong. " 9 .4 The origin of the practice of requiring an undertaking as to damages is explained by Peter Gibson L. J in the English case of Cheltenham and Gloucester Building Society v Rickett, as follows: " The practice of requiring an undertaking in damages from the applicant for such an injunction as the price for its grant was originated by the court of Chancery as an adjunct to the equitable remedy of an injunction. There is an R10 obvious risk of unfairness to a respondent against whom an interlocutory injunction is granted at a time when the issues have not been fully determined and when usually all the facts have not been ascertained. The order might subsequently prove to have been wrongly made but in the meantime the respondent by reason of compliance with the injunction may have suffered serious loss from which he will not be compensated by the relief sought in the proceedings." 9. 5 It is, therefore, a requirement for a party seeking an injunction to give an undertaking thatshould the cou1t after granting the injunction, find that it shouldn't have done so, that party would pay the other for all the losses that they would have incurred as a result of that injunction. 9.10 Further Mr. Justice Dr. P. Matibini, SC in his book Zambian Civil Procedure: Commentary and Cases addressed the issue of undertaking as to damages at page 779. He commented as follows:- ''The undertaking which is often referred to as a cross undertaking is in fact a promise to pay the defendant compensation if the Plaintiff later fails to establish his right to the interim injunction. The English case of Hoffman La Roche and Co AG V Secretary of State for Trade and Industry stated that: the undertaking in damages is given to the Court, not to the party against whom the interim order is obtained. " 9 .11 Therefore, an undertaking as to damages is given to the Court by the applicant for an injunction order and not to the other party in the action. Since the undertaking is given to. the court and not the other party, Loughlin and Gerlis on Civil Procedure stated the following regarding failure to comply with the undertaking that- "Accordingly, any failure to comp(v with the undertaking is not a breach of contract but will be punished by the court through the remedies available for contempt. " 9 .12 Furthem1ore, Order 29 rule L 30 of the Rules of the Supreme Court of England 1999 Edition has this to say concerning undertakings; Rll "The undertaking in damages is given to the Court and not to the party enjoined. However, ifit should be held at the trial that the Plaintiff had not been entitled by interlocutory injunction to restrain the defendant from doing what he was threatening to do, or if it is established before trial that the injunction ought not to have been granted in the first place the party enioined may apply to the court for the undertaking to be enforced. " 9 .13 Consequently, considering that an undertaking is intended to provide a means of compensating the party restrained if subsequently, the injunction is discharged, where there is no undertaking given by the Plaintiffs, there would be nothing for the Defendants to fall back on for enforcement. 9 .14 The Defendants herein have urged this Court to discharge the injunction granted by this Cou1t to the Plaintiffs on the basis that the Plaintiffs allegedly did not give an undertaking prior to the injunction being granted. I have noted that the order for ex-parte injunction that was filed on record by the Plaintiffs indeed had an undertaking as to damages as stated by their Counsel. I-Iowever, the said order was never endorsed by the Court as the application ended up being heard inter-parte. I, therefore, find that there is no undertaking before me that is capable of being enforced by the Defendants should it later be found that the injunction in issue should not have been granted to the Plaintiffs in the first place. 9 .15 The question that begs to be answered then is, what are the consequences of a party's failure to give an undertaking. Does it warrant a discharge of the injunction that was granted? On this, I am guided by the holding by the Court of Appeal in the Felix Brian Mkumbwanyama Chasha And Others V Elizabeth Mulenje (Hrh Senior Chieftainess Nkomeshya Mukamambo Ii) And the Attorney General case which was cited by both the Plaintiffs and the 2nd and 3rd Defendants, where it was stated that "In relation to the present case, we agree with the Appellants' argument that the Court below ought to have asked the 1st Respondent to make an R12 undertaking as to damages but it did not do so. We, however, acknowledge what is stated in the excerpt from the HALSBURY'S LAWS OF ENGLAND that we quoted, where the learned J20 authors state that an undertaking as to damages must always be given, with limited exceptions, which are later stated at paragraph 982, as matrimonial and children's matters. We are, however, of the considered view that the said omission is not fatal so as to render the iniunction ineffective. In the circumstances. therefore. we find that ground three only succeeds in part. to the extent of emphasizing the principle that an undertaking as to damages ought to have been made. On the other part of having the iniunction set aside due to the Court's omission. we find no merit in that limb." 9 .16 Based on the foregoing authority I find that the absence of an undertaking is not fatal so as to render the injunction ineffective or to warrant this Court to discharge the injunction that was granted to the Plaintiffs on 23 rd December, 2024. The Defendants argued that this position only applied in that matter but I do not see any reason to so find and none was given by the Defendants. 9 .17 Furthermore, the Defendants argued that in the alternative, should the Court be inclined to maintain the injunction, the Plaintiffs must fortify their undertaking as it is the 2nd and 3rd Defendant's position that where the Court is in doubt about the enforceability of the undertaking it must require the Applicant to fortify their undertaking by providing adequate security especially where the Applicant is a nominal claimant as is the case herein where all the four (4) Plaintiffs are suing on behalf of the Busoli Royal Establishment. 9.18 However, the Defendants have again not provided or directed this Court to any authority or provision of the law that allows it to make such an order at this stage of the proceedings. In the absence of any authority, therefore, this Court is constrained to give such an order. What is clear from the authorities cited above, is that in an application for an injunction, a party is required to give an undertaking as to damages which can be R13 enforced by the court should it later be found that the injunction should not have been granted. 9.19 It is not in dispute that an undertaking as to damages should have been given prior to the grant of the interim injunction. However, considering the losses that the 2nd and Yd Defendants are and will continue to incur as a result of the existence of the aforementioned injunction granted to the Plaintiff, I am of the considered view that it is in the interest of justice that the Plaintiffs are made to give the required undertaking even after the grant of the injunction. This has especially beco1ne pertinent upon considering the quantum of losses that are said to be incurred by the 2nd and 3rd Defendants as a result of the injunction that was granted to the Plaintiffs by this Court on 23rd December, 2024. This is also crucial bearing in mind that the Plaintiffs are not suing in their personal but representative capacities as representatives of the Busoli Royal Establishment. 9.20 In view of the above I am satisfied that this is a proper case in which I can invoke my powers under Order 3 Rule 2 of the High Court Rules, Chapter 27 of the Laws of Zambia, in the interest of justice. I accordingly, pursuant to the said provision order that the Plaintiffs must file into Court an undertaking as to damages within the next 14 days of this order. 9.21 Costs shall be in the cause. 9.22 Leave to appeal is granted. Delivered at Lusaka this 3l8t day of March 2025 C. Chinyanwa Zulu·· JUDGE ,, R14