African Methodist Episcopal Church (Incorporated under the Perpetual Succession Act)v Kabwe Municipal Council and Ors (Appeal No. 25/2017) [2017] ZMCA 480 (5 October 2017)

, IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 25/2017 BETWEEN: AFRICAN METHODIST EPISCOPAL CHURCH (Incorporated under the Perpetual Succession Act) APPELLANT AND KABWE MUNICIPAL COUNCIL CEPHAS SIW ALE EMMANUALE TEMBO EMMANUEL KALAMBA SAMUEL MATENGU ADAM SIL W AMBA ISAAC SIMFUKWE 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT 6TH RESPONDENT 7TH RESPONDENT Coram: CHISANGA, JP; CHISHIMBA AND SICHINGA, JJA On the 5th day of October, 2017 For the Appellant: For the 1st Respondent: For the 2nd to i 11 Respondents: Mr. S. Mudenda, Legal Aid Counsel of Legal Aid Board Mr. E. M. Mukuka of Messrs E. M. Mukuka and Company In-House Counsel Sichinga, JA, delivered the Judgment of the Court JUDGMENT Cases referred to: I. Turnkeys properties v Lusaka West Development Company Limited and others (1984) Z. R. 85 (S. C.) s 2. Shell & B. P. Zambia Limited v Conidaris and others (1975) Z. R. 174 (S. C) 3. Richard Mo/ya v Sta/yon Employment and Investment Limited SCZ Judgment No. 37 of 2014 4. Ahmed Abad v Turning and Metals Limited (1987) ZR 174 5. Mothercare Ltd v. Robson Books Ltd (1979) FSR 466 6. Alfred Dunhill ltd v. Sunoptic SA (1979) FSR 337 7. The Siskina (1979) AC 210 Texts referred to: 1. Phipson on Evidence, Seventh Edition This is an appeal against the High Court's Ruling of the l i h day of December, 2016 dismissing an application for an injunction sought by the appellant against the respondents to restrain them whether by themselves or through their authorized agents and servants, from trespassing on the property known as a portion of Farm No. 386A Kabwe and to restrain them from carrying out any activities or disrupt the appellant' s activities until the matter is finally determined. In this appeal we shall refer to the appellant as the plaintiff and the respondents as the defendants as this is what the parties are in the main action in the court below. -J2- ' ' According to the statement of claim the plaintiffs main action is for damages for trespass by the defendants on the plaintiff's land aforestated on which the defendants have been trespassing, purporting to demarcate it when the subject land had already been demarcated by Zambia Consolidated Copper Mines, the original owner of the said land. The injunctive order was initially granted ex-parte on the 11 th day of November, 2015 and subsequently heard inter-parte on the 5th day of November, 2016. The plaintiff sought to have the ex-parte order confirmed and the defendants opposed the application and prayed that the injunction be discharged. The affidavit evidence in support of the injunction application before the lower court, deposed to by one Fredrick Chama and dated 5th November 2015 , was to the effect that the plaintiff was given the land that is subject of this action by the defunct Zambia Consolidated Copper Mines Limited (ZCCM) in 1983 on a lease. Thereafter, the plaintiff submitted building plans to the engineering department of ZCCM, which at the time was responsible for scrutinizing and approving plans for building in mine areas. The plaintiff then constructed a church building, a caretaker's house and an ablution block, and has since then been in occupation of the said land. The deponent further stated that when ZCCM ceased operations, there was a normalization process by which all land formerly belonging to mines was to be administered by the first defendant, to which the plaintiff applied for -J3- numbering of and title to the said land. The defendnt however, did not conclude its deliberation at its sitting where the plaintiff s application was considered, and it instead began to demarcate the land. In opposing the application for the interim injunction, the first defendant stated that what the plaintiff had applied for was an extension and the same was not approved, adding that the portion of the land that the plaintiff claims ownership of is not part of the land formerly belonging to ZCCM. The second to seventh defendants in their joint affidavit in opposition to the injunction application stated that the land subject of this action was allocated to them by the first defendant when there was no structure of any kind, and further that the plaintiffs structures are on the opposite side of their land across a road. The court below in its ruling found that the plaintiff lacked title to the land, which diminished its claim to injunctive relief. The court said the plaintiffs core relief did not disclose the pursuit of a declaration of "the right to be given first option", nor the enforcement of a legal or equitable right, but rather sought damages and an injunction. In the court' s view the plaintiff had not made out a prima facie case. After considering all the affidavit evidence and the submissions by counsel, the lower court found that the balance of convenience was in favour of the defendants. -J4- The court then accordingly dismissed the application and discharged the ex-parte order granted on the 11 th day of November, 2015. Dissatisfied with the lower court's Ruling, the plaintiff appealed against the decision of the lower court, advancing the following grounds: GROUND ONE The Lower Court erred in its judgment in that its conclusion was against both the weight and direction of the evidence before it. GROUND TWO The Lower Court erred in law and fact in dismissing the application by the Appellant when the Appellant adduced enough evidence relating to the acquisition of the subject land when the Respondents adduced none whatsoever. GROUND THREE The Lower Court erred in law by stating that the Appellant did not make a prima facie case when the evidence points to a prima facie case being made. -JS- GROUND FOUR The Lower Court erred in law and fact when it said that the Council has since allocated the land and has allowed occupation of the subject land. When there was no evidence either of applying for demarcating or allowing occupation. At the hearing of the appeal, both parties relied on their filed heads of argument. We note that in its heads of argument, the plaintiff only advanced arguments in support of the first three grounds of appeal, and the defendants argued their responses to all the grounds simultaneously, as the arguments thereunder appeared to them, similar. With regards to the first ground of appeal, the plaintiff argued that the title to the land in issue was initially vested in Zambia Consolidated Copper Mines limited (hereinafter referred to as "ZCCM"), and was subsequently demised to the plaintiff by ZCCM. To this effect, the plaintiff relied on two documents exhibited to the affidavit in support of the injunction application in the lower court, namely: a receipt of rentals from ZCCM and a document titled ' Amendment Relating to a Portion of FARM No. 386A Situated at Kabwe', to which, the plaintiff submitted, the trial Court attached no significance or weight. The plaintiff further made -J6- reference to a portion of a letter authored by the plaintiff s senior trustee and pastor in charge, and addressed to the Town Clerk, in which the authors stated as follows: "Our initial portion of land was found to be too small as we already have three buildings namely parsonage and two churches. ZCCM was approached and gladly gave as an annex as per attached evidence. " To this effect, the plaintiff argued that despite having considered this evidence, the trial court still went on to take the matter as a new processing of issuance of land by ZCCM and the Council, and that the lower Court appeared not to have been alive to the fact that it was dealing with that part of land which ZCCM had already given to the plaintiff. As regards ground two, the plaintiff argued that it adduced suffi cient evidence relating to its acquisition of the subject land whilst the defendants adduced none whatsoever. We were referred to exhibits "FC l " and FC2" in the plaintiffs affidavit in support of summons fo r an interim inj unction, the same being a receipt from ZCCM to the plaintiff, and a portion of a lease agreement respectively. Counsel argued that these documents link the plaintiff to the land. That the defendants' claim to the land is without docume ntary proof. Counsel submitted -J7- that it was an error on the part of the court to rule in favour of a party that does not know how they found themselves on the land. In the third ground of appeal, it was argued that the court erred in stating that plaintiff did not make a prima facie case when the available evidence before the court pointed to a prima facie case being made. The plaintiff submitted that the trial court overlooked all the documentary evidence submitted before it. In this regard, the plaintiff argued that it cannot be correct to conclude that there was no prima facie case when all the exhibits connect the plaintiff to the land, and further that the chief question is whether the defendants put before court a better and clear title or interest in the subject land than the plaintiff. It was the plaintiffs submission that the defendant did not put anything before the lower court. The court was urged to have regard to holdings in the case of Turnkey Properties v Lusaka West Development Company Limited and others<1 ) and not follow the case of Shell and BP Zambia Limited v Conidaris and others. < > Counsel prayed that the appeal be allowed. The first defendant, Kabwe Municipal Council, did not file any heads of argument. The other defendants filed heads of argument and argued all the grounds of appeal together. In their heads of argument in response to the outlined grounds of appeal, -JS- they contended, in general, that the plaintiff has delved into the merits of the substantive action and not whether or not it is entitled to injunctive relief. The defendants submitted that the court below was on firm ground in holding that the plaintiffs rights over the land in dispute were not clear and thus an injunction could not be sustained in such circumstances, as the plaintiffs did not demonstrate how the activities of the defendants on their plots, given to them by the Council, and which plots lie across the road far away from the plaintiff church, would cause irreparable harm to it. In this regard, the defendants relied on the case of Shell & B. P. Zambia Limited v Conidaris and others (supra) , which the plaintiff submitted that the court below wrongfully relied on. The defendants equally cited the case of Turnkeys properties v Lusaka West Development Company Limited and others (supra) in advancing the argument that an injunction, as an equitable relief, will not be granted if damages would be an adequate alternative remedy, and that by claiming damages in its Writ of Summons and Statement of Claim, the plaintiff acknowledged that it can be compensated by way of damages in the event that its action was successful. They submitted that the plaintiff bore the burden to satisfy the court below that it was entitled to the grant of an injunctive relief by demonstrating that it had clear rights over the disputed land and would suffer irreparable injury in the event that it was not granted, rather than shifting the burden to the defendants and inviting them to argue the matter on the merits. -J9- Counsel contended that the defendants demonstrated to the court below that they would be greatly inconvenienced if the plaintiff church was granted the injunction as the defendants had been allocated plots by the first defendant and had built on them. They submitted that, the plaintiff, on its part, did not indicate to the court that it would suffer irreparable injury which could not be atoned for by way of damages or that it would suffer mere inconvenience. They argued that in opposing the grant of an interlocutory injunction to the plaintiff church, the defendants deposed in their affidavit in opposition to affidavit in support of an application for an injunction that they were allocated the land in issue by the first defendant, the holder of the ' Mother Title' to farm number 386A. They deposed in their affidavit that at no time did they enter the plaintiffs premises for purposes of disrupting its activities. They produced a sketch plan, not drawn to scale, showing the plaintiffs premises on the ground in proximity to their lots. The defendants submitted that the first defendant, in its affidav it in opposition to the affidavit in support of summons for interim injunction, deposed through its Director of Development Planning, that it did not approve the application by the plaintiff for the portion of land claimed, and that the plaintiff was not entitled to claim ownership of the said piece of land. Counsel submitted that the plaintiff did -JlO- not demonstrate how the defendants' activities, on plots given to them by the first defendant, and which plots lie away from the plaintiff church, would cause irreparable harm to it. The defendants in the affidavit further deposed that there are concrete pillars erected in a straight line with a beacon which shows where the plaintiffs piece of land ends. That they have not crossed the road and the said pillars to get to the plaintiffs premises. They deposed that they were given bare plots by the first defendant which they were developing. They further depose that the plaintiff has not erected any structure of the said land. It was submitted that a perusal of the plaintiffs writ of summons will indicate that the plaintiff is seeking damages as its relief for the alleged trespass. That by claiming damages in its writ of summons and statement of claim, the plaintiff acknowledged that it can be compensated by way of damages in the event its action was successful. The case of Shell & BP Zambia Limited v Conidaris and others (supra), and the case of Turnkey Properties v Lusaka West Development Company Limited and others (supra) were referred to. We were urged to dismiss all grounds of appeal as the court below considered all the documents before it and still found that the plaintiff s right were not clear. It was also submitted that inviting this court to hold that the plaintiff s purported tenancy agreement was a long lease equivalent to the lease in a certificate of title -Jll- for 99 or 100 years would be asking the court to speculate as no evidence was given as to the period of the said lease, and further the plaintiff would be inviting the court to touch on the merits of the substantive action. Counsel urged us to uphold the Ruling of the court below. Looking at the grounds of appeal, we find them all inter-related and shall deal with them as one. As we see it, these grounds of appeal largely border on the lower court's consideration, or lack thereof, of the evidence in support of the plaintiff's application for an injunction, as well as the weight attached thereto, if any. In analyzing these grounds of appeal, we cannot avoid also examining the pertinent questions that a court ought to consider when deciding whether or not to grant an injunction, as laid out in various case authorities. Suffice to say that the principles of law that govern a party's entitlement to injunctive relief have long been settled in this jurisdiction. The Supreme Court in the case of Richard Mofya v Sta/yon Employment and Investment Limitetf3J guided that the two primary issues to be addressed or considered at the outset are whether the claimant has demonstrated (emphasis ours) that: 1. His right to relief is clear; and -Jl2- 2. Irreparable damage will be occasioned to the claimant if the injunction was not granted. This was in line with its decision in the case of Shell & B. P. Zambia Limited v Conidaris and others (S. C) cited by the both parties but relied upon by the defendants, wherein the Court held that: "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." The Supreme Court further stated that if the Court is of the view that there is a serious question to be tried, it should proceed to consider whether or not a claimant could be adequately compensated by an award of damages if successful at trial. In this regard, the Supreme Court held in the case of Ahmed Abad v Turning and Metals Limited (4J that where damages would be an adequate remedy, the grant of an injunction is inappropriate. -J13- In its affidavit in support of an order for an interim injunction at page 34 of the record, the plaintiff exhibits a document marked "FC l" which is a receipt for the sum of Two K wacha and ten ngwee received by Zambia Consolidated Copper Mines Limited from the plaintiff in consideration of lease rentals for the period 1st July, 1981 to 30th June, 1985. Further, at page 35 of the record is another exhibit "FC2" a document entitled "AMENDMENT RELATING TO A PORTION OF FARM NO. 386a SITUATED AT KABWE." According to paragraph 3 of the affidavit in support of summons for an interim injunction, these documents purport to show that the plaintiff was given a portion of farm no. 386A by ZCCM. This evidence hardly reflects the plaintiffs current interest because exhibit "FC l" shows a payment for a lease period which has since expired, and exhibit "FC2" does not reveal the parties to it. Therefore, a court considering an application for injunctive relief needs to be satisfied that there is a serious question to be tried on the merits. The court is required to investigate the merits to a limited extent only. All that needs to be shown is that the claimant' s cause of action has substance and reality. Beyond that, it does not matter if the applicant's chance of success is highly likely or less likely. The cases of Mothercare Ltd v. Robson Books Lttf5 J and Alfred Dunhill Ltd v. Sunoptic SA refer. -J14- As regards the plaintiff's demonstration of a clear ri ght to relief, the lower Court observed that from the evidence before it, the plaintiff merely expressed an interest in taking ownership of the land in dispute, as opposed to seeking a declaration of the right to be given first option. We note that the reli efs claimed by the plaintiff in its pleadings are damages for trespass and an injunction to restrain the defendants, their agents and servants from trespassing on plot No. 386A. Other than the interim injunctive relief sought, the plaintiff seeks damages for trespass, needless to state, on land whose ownership is still in question, but on which question the court was not called upon to make a declaration regarding the plaintiff's right or entitlement to ownership thereof. The drafting of pleadings in that regard were odd. In the case of The Siskina<5 J Lord Diplock stated: "A right to obtain an interim injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by his, of a legal or equitable right of the claimant for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an interim injunction is merely ancillary and incidental to the pre-existing cause of action. " -J15- We are therefore inclined to concur with the lower court' s finding that the plaintiff did not demonstrate a clear right to relief, as it is not clear what the plaintiff seeks from the court after the injunction application is dealt with in totality. We therefore cannot fault the lower court for coming to the conclusion that the plaintiff did not make a prima facie case against the defendants. As to whether damages would suffice as an alternative remedy in the event that the plaintiff succeeded at trial, we see no reason to delve deeply into this consideration, as the plaintiff already pleaded damages for trespass. In our view, this implies that the court's refusal to grant the plaintiff injunctive relief would not have possibly occasioned the plaintiff such irreparable injury that cannot be atoned for by damages. We therefore agree with the court below that the plaintiff did not meet the requirement to demonstrate that damages would not be an adequate remedy in the event that the injunction was not granted and the plaintiff succeeded at trial. The case of Shell & B. P. Zambia Limited v Conidaris and others refers, and we accordingly apply the holding in the case of Ahmed Abad v Turning and Metals Limited that where damages would be an adequate remedy, the award of injunction is inappropriate. In any event, there is no evidence of threatened or possible demolition of the plaintiffs structures. -J16- Further, in this appeal, the plaintiff submitted that it was an error on the part of the trial court to rule in favour of a party that does not show anywhere how they found themselves on the land. Although the defendants did not directly respond to this particular ground of appeal, we shall take the liberty to reiterate the long standing principle of law on the burden of proof in civil cases, which undoubtedly applies in the matter at hand. In this regard, we refer to the text by the learned authors of Phipson on Evidence, Seventh Edition, who state as fo llows: "So far at the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issues. If, when all the evidence is adduced by all the parties, the party who has this burden has not discharged it, the decision must be against him. It is an ancient rule founded on consideration of good sense and should not be departed from without reasons." It is clear from the above passage, and it is indeed trite law that he who alleges must prove. Effectively, it was the plaintiffs duty to establish its entitlement to injunctive relief by meeting the basic principles that govern injunctive relief, which we have labored to elaborate. Interim injunctions are temporary orders made with -J17- ' . the purpose of regulating the position between the parties to an action pending trial. Although the plaintiff did not advance any arguments in support of its fourth ground of appeal, we are of the considered view that the question raised therein is the same or similar to that in the third ground of appeal, which we have already dealt with. We therefore uphold the Ruling of the court below for the reasons stated above. All the grounds of appeal herein fail. This appeal has no merit and it is so dismissed with costs to the defendants to be taxed in default of agreement. .................. ~ ..... . F. M. CHISANGA JUDGE PRESIDENT F. M. CHISHIMBA COURT OF APPEAL JUDGE -J18-