Manal Investment Limited v Lamise Investment Limited (SCZ 1 of 2001) [2001] ZMSC 3 (17 January 2001)

MANAL INVESTMENT LIMITED v LAMISE INVESTMENT LIMITED Supreme Court Sakala, Ag. D. C. J, Chaila and Chibesakunda, J. J. S. 9th August, 2001 and 18th January, 2001 (SCZ Judgment No. 1 of 2001) Flynote Civil Procedure – Interim injunction – Propriety of single judge of the Supreme Court to grant an injunction. Headnote This is an appeal against the refusal of the High Court to grant an injunction. The appellant was the owner of a cloth registered as a protected design number 3/97 under the Registered Design Act. The appellant used the said cloth, the registered design, in the manufacture of mattresses for sale to the public. The respondent on the other hand, had been importing a cloth similar to that of the appellant. The said imported cloth was also being used by the respondent in the manufacture of mattresses with a form thinner than that used by the appellant and passed off as a product of the appellant. The appellant commenced an action by a writ of summons claiming, among others for an injunction to restrain the respondent whether by it’s self, servants or agents whosoever from selling and trading in mattresses on the Zambian market which are covered with a cloth or design registered as design number 3/97. Before the main action could be heard the appellant applied for an interlocutory injunction before a High Court Judge. The learned trial judge dismissed the application with costs. The appellant subsequently applied for an interim injunction before a single judge of the supreme court. The single judge granted the application. Held: (i) In terms of section 4 of the Supreme Court Act, a single judge has no powers in matters of injunctions as the same involved a decision of an appeal or a final decision on the matter. (ii) Where the High Court has refused to grant an interim injunction, the aggrieved applicant may have no immediate remedy. The Supreme Court may grant an interim injunction pending determination of the main action in order to prevent irreparable damage. A Wright of Messrs Malambo and Silwamba for the appellant. C. M Banda and B. L Mupeso of Messrs Chifumu Banda and Associates for the respondent. Judgment SAKALA, ACTING D. C. J., delivered the judgment of the court. When we heard this motion at Kabwe, we restored the main appeal which had been withdrawn. We treated the hearing of the motion as the hearing of the main appeal itself. The Order of a single judge purporting to grant the injunction was confirmed as the order of the full court. We indicated then that we shall give our reasons in a written judgment. We directed that the main action must proceed to trial without waiting for the written judgment. We now give our reasons. The appeal was against the refusal of the High Court to grant an injunction. The brief facts, in so far as they are relevant to the appeal were that, the appellant was the owner of a cloth, registered as a protected design number 3/97 under the Registered Design Act. The appellant used the said cloth, the registered design, in the manufacture of mattresses for sale to the public. The respondent on the other hand, had been importing a cloth similar to that of the appellant. The said imported cloth was also being used by the respondent in the manufacture of mattresses with a foam thinner than that used by the appellant and passed off as a product of the appellant. According to the appellant, the mattresses produced by the respondent were manufactured with thin foam thereby making the cost of production cheap by passing it as the appellant’s product. The fact that the appellant had a certificate of registration for the cloth in issue was common cause. The appellant commenced an action by writ of summons claiming, among others, for an injunction to restrain the respondent whether by itself, servants or agents whosoever from selling and, or trading in mattresses on the Zambian market which are covered with a cloth or design registered as design number 3/97. Before the main action could be heard, the appellant applied for an interlocutory injunction before a High Court judge. In a short ruling, very difficult to understand the reasoning, the learned trial judge dismissed the application with costs, but put the main action on the fast track and ordered that the trial commence forthwith. But on 22nd September, 1999, the appellant, dissatisfied with the trial judge’s ruling filed a notice of appeal to the supreme court. However, on 13th October, 1999, the appellant applied to a single judge of this court for an injunction pending determination of the matter. The single judge, granted an interim injunction pending determination of the matter. The single judge, granted an interim injunction on 27th October, 1999, and after hearing both parties made the interim injunction on 19th March, to continue pending trial. After obtaining the injunction pending trial before a single judge, the appellant filed a notice on 1st February, 2000, to discontinue appeal number 135/99 as they had obtained what they had wanted by the main appeal. But on 5th May, 2000, the appellant filed an ex-parte summons for leave to institute committal proceedings against the respondent for disobeying the injunction. It is at this stage that it was realized that in terms of section 4 of the Supreme Court Act, a single judge had no powers in matters of injunctions as the same involved a decision of an appeal or a final decision of the matter. This meant the application for an interim injunction before a single judge and the Order granted were misconceived. Hence, the motion to restore the appeal was discontinued on 1st February, 2000. Indeed, the discontinuance of the appeal was also misconceived because it was based on the assumption that the order of the single judge was valid at law, which was not the case. For that reason, we restored the appeal and treated the hearing of the motion as the hearing of the main appeal against the refusal by the High Court to grant an injunction. The point must, however, be emphasized that the grant or refusal of an injunction is a matter involving the decision of an appeal or a final decision. Thus, a single judge has no power to determine a matter involving a decision of an appeal or a final decision (Section 4, Supreme Court Act Cap 25). We are mindful that this position is bound to cause difficulties in practice as the Supreme Court does not sit everyday. Thus, in a case of urgency, where the High Court has refused to grant an interim injunction, the aggrieved applicant may have no immediate remedy and by the time the appeal is heard, irreparable damage may already have been caused. There is therefore, need to look at the provision relating to appeal in injunction matters. Turning to the appeal itself, written heads of argument were filed with the court based on two grounds appeal. The first ground alleged an error on the part of the trial judge in not giving reasons for his refusal to grant the injunction. We have looked at the short ruling by the learned trial judge. To appreciate the gist of the first ground, it is imperative to set out the ruling in full. The ruling reads: (Sic) “I have the injunction I do not need to go into the ments of the case, this is an issue of commercial trading, and there is a question of design and designation in the alleged design. This designation does not go to rast of irrequability nor one that goes within the principle of the quoted case in American Cyanamid case, the question of irrequability does not own, and I dismiss the applicant with costs. If I will however put it under the Font Haute and order that trial commence fourth”. The above ruling is quoted verbatim from a record certified as a true copy of the Deputy Registrar. It does not reflect seriousness in the preparation of a record of appeal. According to the learned trial judge, the question of irreparability was not an issue. He did not say why that was so. Yet, the case for the appellant was that they had registered their design and had a certificate of registration and until such time, were entitled to the protection of the law. The ruling of the trial court was too short and gave no reasons. On this ground alone this appeal ought to have succeeded. The second ground of appeal alleged that the learned trial judge erred by not taking into account the principle of the law governing the grant of injunctions and in particular, the provision of section 14 (1) of the Registered Design Act. Our short answer is that there was no ruling at all in this matter which also is a good ground for allowing the appeal. In our considered view, the learned trial judge overlooked the salient facts of the case as established by the evidence. First and foremost, the appellant presented a design to the Registrar of Designs. The design was registered. At the material time, the registration was still in place. Secondly, by registering the design, the appellant by law, enjoyed copyright privilege (See Section 14 Cap 402). The appellant applied for an injunction to protect the right they acquired by registering the design. Indeed, the issue whether the design registered by the appellant is same or similar to the cloth used by the respondents is for the trial court. We are satisfied that as long as there is a design registered under the Act, it ought to be protected until successfully challenged. Indeed, the fact of registration increases the weight of the balance of convenience in favour of the registered owner. In the present case, the respondent admitted in their affidavit that the appellants’ products covered in the design cloth are of superior quality compared to theirs. We were satisfied that if an injunction was not granted in these circumstances, irreparable damage would have been caused to the appellant. For the foregoing reasons, we granted the interim injunction pending the determination of the main action. Appeal allowed