Harrison Lupasa and Anor v Reuben Mumena (Sued in his capacity as Secretary General Of Consolidated Miners and Allied Workers Union Of Zambia (CMAWUZ) (2024/HP/0623) [2024] ZMHC 121 (18 June 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN HARRISON LUPASA MWEWA PAMESA AND 2024/HP/0623 1 ST PLAINTIFF 2ND PLAINTIFF REUBEN MUMENA (Sued in his capacity as Secretary General Of Consolidated Miners and Allied Workers Union Of Zambia (CMA vVUZ) DEFENDANT BEFORE THE HONOURABLE MRS. JUSTICE M. C. KOMBE For the Plaintiffs : For the De Jendant: Ms. M. Phiri - Messrs. PNP Advocates. Ms. N. Chansa - Messrs. Nyirongo & Company. RULING Cases referred to: 1. Edward Jack Shamwana v. Levy Mwanawasa ( 1994) Z. R. 93. 2. American Cyanamid Company v. Ethicon Limited (1975) AC 396. 3. Hilary Bernard Mukosa v. Michael Ronaldson (1993-1994) Z. R. 26. 4. Harton Ndove v. Zambia Educational Company (1980) Z. R.104. · 5. Shell and BP (Z) Limited v. Conidaris and others (1975) Z. R. 174. ' - - - -- - - - • 6. Arcades Developments Pie v. Elajics Limited (T / A Rhapsody's Cafe & Bar) (CAZ Appeal No.028/2018). 7. Ayub Fakir Mulla and 2 Others v. First National Bank and Another (Application No.5/2021). Legislation and other material referred to: 1. The High Court Rules, Chapter, 27 of the Laws of Zambia. 2. The Rules of the Supreme Court (RSC-White Book) 1999 Edition. 3. Halsbury Laws of England Volume 24, Fourth Edition. 1. INTRODUCTION 1.1 Pending the determination of this matter, the Plaintiffs filed an application for an order of interim injunction pursuant to Order 27 of the High Court Rules Chapter 27 of the Laws of Zambia as read with Order 29 rule 1 of the Rules of the Supreme Court of England, 1999 Edition. 1.2 By this Order, the Plaintiffs seek to restrain the Defendant, by themselves , their servants, agents, or howsoever otherwise, from suspending or expelling the Lumwana Branch. 2. PLAINTIFFS' AFFIDAVIT EVIDENCE 2 . 1 The application is supported by an affidavit deposed to by HARRISON LUPASA the 1st Plaintiff herein. -R2- \ I • 2.2 He deposed that they commenced an action against the Defendant clairning inter alia a declaration that the decision to place them on indefinite suspension by the Defendant was illegal and null and void as it was in contravention of the CMAWUZ constitution, the law and rules of natural justice and therefore they should be reinstated. 2.3 That the circumstances leading to the action were that on 18 th April, 2024, the Defendant acting by its President Mr. Kyebekela Ululi placed the Plaintiffs on indefinite suspension on allegations of insubordination, gross financial misappropriation and falsifying information. Copies of the letters by the Defendant were exhibited and marked "HLl- 2." 2.4 Prior to the suspension, he and the 2nd Plaintiff were the branch chairman and branch treasurer for CMA WUZ Lumwana Branch. That their suspension was in contravention of the CMAWUZ constitution which afforded members a right to be heard whenever an allegation was made before an adverse decision such as suspension could be made. A copy of the constitution was exhibited a11d marked "HL3.', -R3- 2.5 He deposed that they expected that if indeed there were disciplinary issues against them, the Defendant would inter alia appoint an independent auditor to scrutinize the books of the union and thereafter whoever was found wanting to be charged in accordance with the constitution. 2.6 Furthermore, that the Defendant did not adhere to the provisions and procedures provided in the constitution but proceeded to suspend them in breach of the rules of natural justice. 2. 7 Immediately after their suspension, the Defendant proceeded to call for elections to replace them. The decision of the Defendant to call for an impromptu election to replace them was in breach of the constitution on the treatment of officers of the union on the requirement that they ought to be charged and heard before any disciplinary sanctions could be meted on an officer. 2.8 Their advocates ,vrote a letter of demand to the Defendant demanding for inter alia their reinstatement and resumption of duties but the Defendant declined to heed the said demand. A copy of the letter of demand was exhibited and marked "HLS". -R4- 2.9 That the real intention of the Defendant in the unconstitutional actions it had taken was to suspend or expel them fron1 CMA WUZ and its desire that they should not participate in the elections by being disenfranchised. 2.10 I declined to consider the application ex-parte and directed that it be heard inter-partes. 3. DEFENDANT'S AFFIDAVIT EVIDENCE 3 . 1 In opposing the application, the Defendant filed an affidavit in opposition deposed to by REUBEN MUMENA, the Secretary General in the Consolidated Miners and Allied Workers Union of Zambia (CMAWUZ). 3.2 He deposed that it was not in dispute that on 18th April, 2024, the Plaintiffs were placed on suspension. However, the said suspension was necessitated by the need to carry investigations into the Plaintiffs' ultra vires conduct relating to handling of CMA WUZ Lumwana branch affairs. 3.3 As the Chief Executive Committee of the union, it came to their knowledge that the Plaintiffs were misappropriating union funds and incurring debts contrary to the CMAWUZ constitution which provides under article 6 that any member who misapplies funds shall be disqualified from holding -RS- • office. A copy of the CMAWUZ constitution was exhibited and marked "RM 1." 3.4 Further, that the Plaintiffs started incurring debts in the name of the union leading to civil proceedings against the union despite the fact that the Union was not allowed to borrow money from the public. A copy of the judgment summons under cause number 2023/SSV /331 was exhibited and marked "RM2." 3.5 It was discovered by the Chief Executive Committee that the Plaintiffs had been soliciting for land using the name of the Union. When requested to surrender all documentation relating to the said land in order for the Chief Executive Committee to regularjze the transaction in accordance with the constitution which provides that all union property shall be vested in the trustees, the Plaintiffs in an act of insubordination unjustifiably refused to comply with the request. This was evidenced by docu1nents marked "RW3". 3.6 It was further deposed that in any event, the Plaintiffs were elected on 16th March, 2020 for a term of four (4) years which ended on 16 th March, 2024. As such their continued stay in office was not supported by the CMA WUZ constitution and -RG- thus illegal. A copy of the letter for call of elections was exhibited and marked "RM4." 3.7 The deponent added that the Plaintiffs had only been on suspension for twelve (12) days at the time they wrote a demand letter for the Union a period which was less than 30 days fixed by the CMA WUZ constitution in which a formal charged should be dismissed. 3.8 Furthern10re, that the Plaintiffs had not demonstrated the irreparable damage they would suffer if the injunction was not granted. 3.9 That the Plaintiffs sought an injunction to restrain the Defendant from dealing with the affairs of CMA WUZ Lumwana Branch which would have the effect of creating the Lumwana Branch as an independent union which would be contrary to the labour laws on formation of unions. 3.10 The branch elections were conducted on 10th May, 2024 and new officials were elected and therefore the balance of convenience lay in favour of the Defendant as it would greatly cause inconvenience to the union branch and the many employees whose interests it represented if this injunction was granted. 4. HEARING -R7- .. J 4. 1 At the hearing of the application, learned counsel for the Plaintiff, Ms. M. Phiri relied on the affidavit and the skeleton arguments filed on 7th May, 2024 in support of the application. These were augmented with verbal submissions. 4.2 Learned counsel for the Defendant, Mr. N. Chansa also relied on the affidavit and the list of authorities filed on 13 th May, 2024. The same were augmented with verbal submissions. 4.3 I shall not replicate the submissions but will be referring to them as and when it is necessary. 5. CONSIDERATION AND DECISION 5.1 By this application, I have been called upon to determine whether the Plaintiffs are entitled to an order of interim injunction restraining the Defendant, by themselves, their servants, agents, or howsoever otherwise, from suspending or expelling the Lumwana Branch pending the determination of this action . 5.2 In doing so, I have carefully considered the caution given by Ngulube ~J (as he then was) in the case of Edward ~Jack Shamwana v. Levy Mwanawasa 111• This caution is that I should in no way pre-empt the decision of the issues which are to be decided on the merits and the evidence at the trial of the action . ·t .1 5 .3 The test to be applied when considering whether or not an injunction should be granted remains that laid down by the House of Lords in the seminal case of American Cyanamid Company v. Ethicon Limited 12 ). This case sets out a series of questions which should guide the court in making a detern1ination . These are: 1. Is there a serious question to be tried? 2 . Would damages be adequate? 3. Where does the balance of convenience lie? 5.4 However, I am mindful to the ' fact that the principles established in the American Cyanamid case a.re of general application and must not be treated as a statutory definition. This is because it is· possible to grant or refuse an interim injunction without applying the A"terican Cyanamid guidelines. 5 .5 In following the Ame1ican Cyanamid guidelines , the first question I should consider therefore is whether or not the Plaintiffs have raised a serious question to be determined at trial. This proposition c01nes down to the requirement that the claim must not be frivolous or vexatious. This is in line with the holding by the Supreme Court in the case of Hilary -R9- " Bernard Mukosa v. Michael Ronaldson 131 where it was held that: "An - injunction would only be granted to a pla.intiff who established that he had a good and arguable claim to the right which he sought to protect." 5.6 Further, in the High Court, Chirwa J, (as he then was) in the case of Harton Ndove v. Zambia Educational Company 141 held that: ·' "Before granting an interlocutory injunction it must be shown that there is a serious dispute between the parties and the plaintiff must show on the material before court that he has any real prospect of succeeding at trial." 5.7 In view of the above principles, for the application to succeed, the Plaintiffs ·must demonstrate that there is a serious question to be tried and that they have a good and arguable claim to the right they seek to protect. 5.8 I have perused the writ of summons, statement of claim and the defence filed. I have examined the above endorsement in the state1nent of claim and the affidavit evidence adduced by all the parties together with the exhibits. -RlO- l ,J 5.9 The Plaintiffs argun1ent is that the decision by the Defendant to place them on indefinite suspension on allegations of insubordination, gross financial misappropriation and falsifying information was in contravention of the CMAWUZ constitution which affords members a right to be heard whenever an allegation is made and a decision such as suspension can be made. 5.10 It is argued that the _Defendant did not adhere to the provisions and :procedures of the constitution but proceeded to suspend them in breach of the rules of natural justice and immediately. proceeded to call for elections to replace them in breach of the constitution on treatment of officers of the union . 5.11 The Plaintiffs also contend that the Defendant's real intention in its action to suspend or expel them was so that they do not participate in the elections by disenfranchising them. 5.12 The Defendant on the other hand contends that the suspension was necessitated by the need to carry out investigations into the Plaintiffs conduct of misappropriating union funds and incurring debts in the name of the union leading to civil proceedings against the union contrary to the -Rll- J CMAWUZ constitution. The Chief Executive Committee discovered that the Plaintiffs had also been soliciting for land using the name of the Union and refused to surrender all documentation relating to the said land which is supposed to be vested in the trustees. 5.13 The Defendant further argues that the Plaintiffs four (4) year term of office ended on 16th March, 2024 and their continued stay in office ,:vas in contravention to their constitution and thus illegal. 5.14 It is clear from the foregoing that the Plaintiffs are challenging the Defendant's decision to suspend them on allegations of insubordination, . gross financial misappropriation and falsifying , information without affording then1 an opportunity to exercise their right to be heard whenever an allegation contrary to the CMA WUZ constitution. 5.15 The Defendant justifies the action taken as being necessitated by the need to carry out investigations into the Plaintiffs conduct of misappropriating un10n funds, incurring debts and soliciting for land using the name of the Union. -P.12- t J 5.16 However, a determination whether the Plaintiffs are entitled to the reliefs sought can only be made after examining in more detail, the evidence and exhibits relied upon by both parties at the trial of this matter. 5.17 In view of the above, I find in line with the Harton Ndove case that there is a serious question to be tried by the Court. 5.18 That notwithstanding, the mere fact that there is a serious question to be tried is not enough. In order to succeed, the Plaintiffs must_~ satisfy the court that an injunction is necessary to protect them from irreparable damage. Thus, if the Plaintiffs can be fully compensated by an award of damages, no injunction should be granted. This consideration is made in the light of what was stated by Lord Diplock in the American Cyanamid case that: "If damages in · the measure recoverable at common law would be adequate remedy and the Defendant would be in the financial position to pay them, no interim injunction should normally be granted." 5.19 Further paragraph 955 of the Halsbury's Laws of England Volume 24, Fourth Edition provides that: -R13- "The Plaintiff must also as a rule be able to show that an injunction until the hearing is necessary to protect him against irreparable injury; mere inconvenience is not enough." 5.20 According to the Shell and BP {Z) Limited v. Conidaris and others (SI case irreparable injury means: "Injury which is substantial and can never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired". 5 .21 In this regard , an injunction will not be granted where damages would be an adequate remedy to the injury complained of in the event that the Plaintiffs later succeed in the main action. 5.22 According to paragraph 29 /L/ 5 of the Rules of the Suprem.e Court, where there is a doubt as to the adequacy of the respective remedies in damages then the question of balance of convenience arises. 5.23 On this question, the Plaintiffs contention is that they have a clear right to relief and therefore damages will not be an adequate remedy because once they are suspended or expelled from the union, monetary compensation cannot atone for the same. -R14- l 5.24 The Defendant on the other hand argues that the Plaintiffs have not sufficiently demonstrated the irreparable damage they will suffer if the injunction is not granted. 5.25 I have given careful consideration to the arguments advanced in this respect. The Plaintiffs argue that the Defendant's real intention in suspending or expelling them from CMA WUZ was so that they do not participate in the elections by disenfranchisi_ng them. The Defendant contends that at the time_ the matter was bro:ught to Court, the Union had already conducted elections on 10th May, 2024. 5.26 That the Plaintiffs had in fact already served their four (4) year term as the same ended in March, 2024, even though their letters of suspension came to them while they were purportedly holding office. Their holding office was not in accordance with the CMA WUZ constitution. That it was therefore not in the interest of the Union to have them reinstated. 5.27 The Plaintiffs further contend in this regard that they were still office bearers of the Union at the time they were suspended and the office could only be fully vacated after the election. -RlS- 5.28 From the foregoing, the Defendant's position is that the Plain tiffs have not satisfactorily demonstrated or established the irreparable damage they will suffer if the injunction is not granted as they have merely argued that damages will not be ·adequate because once they are suspended or expelled from the union, monetary compensation cannot atone for the same. 5.29 I am inclined to agree with the Defendant's position and I find that the · Plaintiffs have not demonstrated the irreparable damage that they will suffer if the injunction is not granted . This makes the Court's task of ascertaining the kind of damages ref erred to · speculative and therefore daunting. 5.30 I find refuge 1n the Court of Appeal case of Arcades Developments Pie v. Elajics Limited (T /A Rhapsody's Cafe & Bar} 161 wherein the Court held that: "In our view, the circumstances of the case before us do not warrant the grant of an injunction without the applicant establishing that it would suffer irreparable injury if an injunction is not granted ... the Respondent has not proved irreparable injury and for that -R16- reason, the questions of the balance of convenience and that of the Respondent coming to equity with unclean hands do not aris.e." 5.31 It is clear from this that irreparable injury has to be established and proved for an injunction to be granted. 5.32 Similar sentiments were expressed in the case of Ayub Fakir Mulla and 2 Others v. First National Bank and Another (7 l whe,re the Court of Appeal held that: "We note that apart from alleging that they would suffer irreparable injury, the Applicants have not shown what' irreparable injury they will suffer which cannot be atoned for if the injunction is not granted." 5.33 In a similar vein , I find that the facts of this case do not warrant the grant of an injunction without the Plaintiffs establishing and proving the irreparable injury they would suffer if the injunction is not granted. And since the Plaintiffs have not proved the irreparable injury that they will suffer, the question of balance of convenience does not anse. -R17- al 5.34 As I have already alluded to, paragraph 29 /L/ 5 of the Rules ' . of the Supreme Court provides the balance of convenience will only arise where there is a doubt as to the adequacy of the respective remedies in damages. In the present case, there is no doubt as to tl:ie adequacy of damages because the Plaintiffs have not demonstrated to the Court what damages they are likely to suffer if the injunction is not granted. 5.35 In any event, the action which the Plaintiffs seek to be restrained, that is suspension has already been done and elections have been held. Thus, ~here is nothing to restrain. 5.36 The net result . of my findings based on the fundamental principles of injunction law, is that the Plaintiffs have failed to make out their case for the exercise of my discretion to grant an interim injunction in their favour. I therefore decline to grant the order sought. The application is dismissed with costs to the Defendant. DELIVERED AT LUSAKA THIS 18TH DAY OF JUNE, 2024 1 ~ JUN 2024 J1 M. C. KOMBE JUDGE -R18-