Ayub Fakir Mulla and Ors v First National Bank Zambia and Anor (APPLICATION NO. 5/2021) [2021] ZMCA 281 (23 April 2021)

IN THE COURT OF APPEAL OF ZAMBIA APPLICATION NO. 5/2021 HOLDEN AT LUSAKA ' (Civil Jurisdiction) BETWEEN: A YUB FAKIR MULLA 1st APPLICANT ZABUNISA ISMAIL MULLA 2 nd APPLICANT LINK PHARMACY LIMITED 3 rd APPLICANT AND FIRST NATIONAL BANK ZAMBIA 1st RESPONDENT FIRSTRAND BANK LIMITED 2 nd RESPONDENT CORAM: Chashi, Sichinga and Ngulube, JJA ON: 8 th and 23rd April 2021 For the Applicants: M. Nkulukusa and M. Bah, Messrs Nkulukusa and Company For the Respondent: S. Chisenga and M. Nachinga, Messrs Corpus Legal Practitioners -R 2- RULING CHASHI JA, delivered the Ruling of the Court. Cases referred to: 1. Mobil Zambia Limited v Msiska ( 1983) ZR, 86 2. Zimco Properties Limited v Lapco Limited (1988 - 1989) ZR, Rules referred to: 1. The Court of Appeal Rules, 2016 This is a renewed application for an interim injunction, brought pursuant to Order 7, Rules 1 and 2 of The Court of Appeal Rules 1 following the refusal of a single Judge of the Court who on 2 nd December 2020 declined to grant the Applicants an interim injunction. The background to this matter is that, the Applicants had commenced an action in the High Court seeking a declaration that the Respondent sold the properties belonging to Courtyard Hotel Limited to an inferior bidder at a deflated price. The Respondents disposed of the properties in 2016. The Applicants sought an ex parte order of an injunction which was granted pending the inter-partes hearing. -R3- On 28 th August 2020, a ruling was delivered, in which the application for an injunction was dismissed and the ex parte Order for an injunction discharged. Dissatisfied with the ruling, the Applicants renewed the application before a single Judge of this Court, who equally dismissed the application. This is what prompted the Appellant to renew the application before us, seeking to vary or reverse the decision of the single Judge of this Court. According to the Applicants, they have an arguable case in the High Court and a clear right to relief. That they have also demonstrated that they may suffer irreparable damage which cannot be atoned for by way of damages. Further that the balance of convenience lies in the Applicants' favour. The Applicants contend that this is a proper case for granting the application. The application is opposed by the Respondents. According to the Respondents, the Applicants have not shown that irreparable damage will be done if the application is not granted. Further that, they have not demonstrated that the balance of convenience lies in their favour if the Respondents proceed to execute Judgment. -R4- • We have considered the affidavit evidence, the arguments by the parties and the record before us. In the case of Mobil Zambia Limited v Msiska 1 the Supreme Court held that: "In considering whether or not an injunction should be granted, a most important consideration is whether or not damages are an adequate remedy. . . A court will not generally grant an interlocutory injunction unless the right to relief is clear and unless the injunction is necessary to protect the plaintiff from irreparable inJury; mere inconvenience is not enough. 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." It is clear from the aforestated case that the court in exerc1s1ng its discretion will only grant an injunction if the right to relief is clear and the injunction is necessary to protect the Applicants from irreparable injury which cannot be atoned for by damages. What that means is that, even if the Applicant has an arguable case and the right to relief is clear, the court will not grant an injunction where • damages would be an adequate remedy to the injury complained of if the -R 5- Applicants succeed in the main cause. 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 by damages if the injunction is not granted. They have further not shown in the circumstances of the case at hand, that damages would likely not be sufficient. In our view, although the Applicants have an arguable case in the court below, the alleged injury to be suffered herein can be atoned for by damages . Coming to the issue of the question of balance of convenience, the Supreme Court in the case of Zimco Properties Limited v Lapco Limited2 made it very clear as to when it is applicable, when they stated as follows: "We must make it clear that the question of balance of convenience between the parties only arise if the harm done will be irreparable and damages will not suffice to recompense the plaintiff for any harm which may be suffered as a result of the actions of the defendant which it is sought to restrain. It is therefore inappropriate in this -R 6- case to discuss the question of balance of convenience. It is clear to us that if the plaintiff is successful in its action, it will be adequately compensated by an award of damages. In the circumstances therefore, the granting of an injunction was improper and this appeal must succeed." Having found that no irreparable injury will be suffered by the Applicants if the interim injunction is not granted as damages would be an adequate remedy, the issue of balance of convenience between the parties does not arise. In view of the aforestated, we find no basis on which to vary or reverse the decision of the single Judge. The application efore us is accordingly agreement. J. CHASHI COURT OF APPEAL JUDGE P . C. M. NGULUBE COURT OF APPEAL JUDGE