Ronald Zulu v Boniface Mwanza and Anor (2024/HP/0026) [2024] ZMHC 120 (24 June 2024)

2024/HP/0026 IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) OBLIC 0 1GHCOURTOF BETWEEN: RONALD ZULU AND PRINCIPAL INTIFF GISELA CHANDA 2ND DEFENDANT BEFORE THE HONOURABLE MRS. JUSTICE M. C KOMBE For the Plaintiff Mr. N. Tembo - Messrs . Grace & For the 1st Defendant: No - appearance. For the 2 nd Defendant: No - appearance. Partners Advocates. 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. Stripes Zambia Limited v. Cinderella Investment and Sana Industries Limited (Appeal No. 200 of 2012). 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 This is a Ruling on the Plaintiffs application for an Order of interim injunction restraining the Defendants from trespassing, committing nuisance, alienating, demarcating and selling any part or portion of any land sitting on and within Lot No. 13068, Lilayi, Lusaka until the final determination of this matter. 1.2 The application is made pursuant to Order 27 of the High Court Rules Chapter 27 of the Laws of Zambia. 2. THE PLAINTIFF'S AFFIDAVIT EVIDENCE 2.1 The application is supported by an affidavit deposed to by RONALD ZULU, the Plaintiff herein. 2.2 He deposed that sometime in 2006, he was engaged and employed by one Mwata Chisha as a caretaker at his farm situated at Lot 13068, Lilayi, Lusaka who allocated him a house within Farm 13068. Without hesitation he occupied the said house so as to conduct his duties effectively. -R2- 2.3 He worked and lived at the farm owned by the employer Mwata Chisha as caretaker until 2007 when the boss stopped going to the farm. Unfortunately, even his contact number could not go through nor did he know any of his relatives. 2.4 He continued living at the farm anticipating that the employer would be back but when time had passed, he inquired from the 1st Defendant but to no avail. 2.5 Further, that on the basis of the employer's absence over a long period of time, he concluded that his employer might be incapacitated or deceased. 2.6 That before he could do anything, he was surprised to learn that the 1st Defendant had instituted legal action and obtained judgment based on misrepresentation and fraud. 2.7 Based on that judgment he obtained through misrepresentation and fraud, the 1st Defendant went to the farm and demolished the house he used to stay in. He also started subdividing the farm into small holdings and selling to other persons unknown without his consent. 2.8 He therefore craved this Court's indulgence to grant him an order of interim injunction pending determination of the main matter. -R3- 3. THE DEFENDENTS AFFIDAVIT EVIDENCE 3.1 I declined to consider the application ex-parte and directed that it be heard inter-partes. The Defendants however did not file any affidavit in opposition to this application. 4. HEARING 4. 1 At the hearing of the application, there was no appearance for the Defendants even though service by way of substituted service had been effected. I was therefore satisfied that the Defendants' absence was deliberate and I proceeded to hear the Plaintiffs application. 4. 2 Learned counsel for the Plain tiff, Mr. N. Tern bo, relied on the affidavit and the list of authorities and skeleton arguments filed on 11 th January, 2024. He augmented the arguments with verbal submissions. 4.3 I shall not replicate the submissions but will be making reference 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 Plaintiff is entitled to an order of interim injunction restraining the Defendants from trespassing, committing nuisance, alienating, demarcating and selling any part or portion of any land sitting on and within lot No. -R4- 13068, Lilayi, Lusaka until the final determination of this matter. 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. 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 121. This case sets out a series of questions which should guide the court in making a determination. 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 of the fact that the principles established in the American Cyanamid case are of general application and must not be treated as a statutory definition. This is because it is possible to grant or refuse an interim -RS- injunction without applying the American Cyanamid guidelines. 5.5 In following the American Cyanamid guidelines, the first question I should consider therefore is whether or not the Plaintiff has raised a serious question to be determined at trial. This proposition comes 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 Bernard Mukosa v. Michael Ronaldson 13 1 where it was held that: "An injunction would only be granted to a plaintiff 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." -R6- 5.7 In view of the above principles, for the application to succeed, the Plaintiff must demonstrate that there is a serious question to be tried and he has a good and arguable claim to the right he seeks to protect. 5.8 The starting point therefore 1s the endorsement of the Plaintiffs claim on the writ of summons. The Plaintiff seeks inter alia: i) An Order that the judgment obtained by misrepresentation and.fraud in cause No. 2021/ HP/ 1125 be set aside forthwith. ii) An Order that the Plaintiff is the legal beneficiary of the property situated at Lot No.13068, Lilayi, Lusaka. iii) Damages. 5 .9 I have examined ·the endorsement in the statement of claim and the affidavit evidence adduced by the Plaintiff together with the exhibits. 5.10 The gist of the Plaintiffs argument is that he was employed by Mwata Chisha around 2006 as a caretaker for farm 13068, Lilayi, Lusaka. He realized that time had passed since the employer went to the farm and all inquiries as to his whereabouts proved futile. He came to learn in 2021 that the 1st Defendant commenced a matter in the absence of Mwata Chisha in cause No. 2021/HP/1125 based on the -R7- information he obtained from his inquiries and obtained judgment on misrepresentation and fraud. 5.11 It is argued that the 2nd Defendant's claim of being an attorney for Mwata Chisha was a ploy to defraud him as the only beneficiary of the property at Farm No.13068, Lilayi, Lusaka. The 1st Defendant has now started subdividing the farm into small holdings and selling to other persons' unknown without his consent. 5 . 12 I should state from the outset that although the Plaintiff seeks to set aside the judgment obtained under cause no. 2021 /HP/ 112 5 on the ground that it was obtained by misrepresentation and fraud by the 1s t Respondent, the same was not exhibited in the affidavit in support of the application. In addition, the particulars of the fraud have not been pleaded as required by law. 5.13 However, I have had occasion to peruse the file pertaining to cause no. 2021/HP/1125. What is clear from this file is that the 1st Defendant herein Boniface Mwanza obtained a judgment against Mwata Chisha that he was the legitimate owner of Lot No. 13068/M. The said Mwata Chisha is the person the Plaintiff herein contends was his employer and he believes is deceased and that's why he seeks a declaratory -R8- I I I I I I - ~ ~ I order that he is the only legal beneficiary of the estate of Mwata Chisha. The judgment was set aside by Hon. Justice S. Newa on 6th June, 2024 following an application by Mwata Chisha who is claiming to be the owner of the property known as Lot 13068/M which is also a subject property herein. That matter is still very active. 5. 14 In view of the forgoing, the Plain tiffs right to relief is not clear since he averred in his statement of claim herein that Mwata Chisha was the owner of the Lot 13068 and he was a just caretaker. 5.15 In this regard, I find that there is no serious question to be tried by this Court. And if there is no serious question to be tried, an application for interim injunction should be refused. 5.16 I should also add that the Supreme Court in the case of Stripes Zambia Limited v. Cinderella Investment and Sana Industries Limited (5) stated that: "The party applying for an injunction must have clean hands, i. e. they must have acted properly themselves. They must disclose all relevant facts to the court including any matters favourable to the other side. This is important as a failure to do this can result in the injunction being set aside." -R9- 5.17 In the present case, the Plaintiff has not made full and frank disclosure when n1aking this application as shown by what I have stated in paragraph 5.13. On this score of non disclosure of material facts, the application must fail. 5.18 For the above reasons, I find that the Plaintiff has failed to make out a case that he is entitled to an order of interim injunction. The application is bereft of merit and it is accordingly dismissed. 5.19 I make no order as to costs. DEL1'lERED A 'l' LUSAKA THIS 24TH DAY OF ,JUNE, 2024 .............. b M. C. KOMBE JUDGE 2 4 JUN 2024 ,~-~L-;;~ KO • J ~0 7. UAKA -R10-