Andson Kawali v Jose Manuel Fenandes (SCZ APPEAL NO. 33 OF 1995) [1995] ZMSC 58 (14 September 1995)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA. (Civil Jurtsdtctlon) SCZ APPEAL NO. 33 OF 1995 ANDSON KAWALI and Appellant JOSE MANUEL FENANDES Respondent Coram: Sakala. Challa and Chtrwa JJS. 1st August and 14th September 1995. For the appellant, Mr. c. Hakanseke of Hakanseke and Company on behalf of Shamwana and Company. For the respondent, Mr. K. Maketo of Christopher Russell Cook & Company. Sakala JS delivered the Judgment of the court. JUDGMENT This is an appeal against an interim order for an injunction granted to the respond~nt by the High Court restraining the appell,int from :r.tering or attending the premises known as Sentor Motors building, breat North Road, Lusaka, pending the determination of the main action or further order. When we heard this appedl, we dismissed it with costs and said that we would give our reasons later. We now give those reasons. Tile facLs of the case are that on 30th November 1994, the r,?spondent issued a \trit of su1M1ons against the appellant claiming for damages for false imprisonment and malicious prosecution as a result of the appellant having caused his arrest and Imprisonment by the 2:ambia Police 011 the 24th and 29th November 1994 without any lawful r.ause or :1utnority. Ou 1~t~ Uecember 1994 the respondent by exµarte sun1TIOns applied for an interim injunction against the appel I ant. 'ihe summons was supported by c111 affidavit sworn by the respondent in ·which, a111on~ other things, he deposed that he was a Director and Shdrt?noloer in tne company known as ~entor Motors Limited and that the appellant had un,;il Stll December 1994 been an employee of the cornpany employed as General Manager. The respondent further deposed in his affidavit thi:1t the appellant liad been dismissed from employment on 5th Decer1ber 1994 by the Managing Director and a Director of the company for insurbodination as rie llciei witnout cause or authority caused the arrest and detention - J2 - of the respondent. a Director and Shareholder of the company and insulted one other Director of the company thereby causing embarrassment and disrupting business of the company. The respondent further deposed that despite the dismissal of tile appellant he had continued to attend at the premises of Sentor Motors Limited and continued to work thereby disrupting the smooth operations of the company and that he had interferred wi tl1 the employees of the company which interference had adverse effects on the operations of the company. The respondent obtained the exparte order on 21st December 1994. On 22nd Dicember 1994 the appellant applied b.)1 way of an exparte sunmons to discharge the exparte order obtained by the respondent. The exparte surm10ns was supported by an affidavit sworn by tl1e appellant in which among other things he deposed that 111 am the General Manager of Sentor Motors and tt1e plaintiff and the other director Mr. Lopes have no authority to dismiss me. as 11AK1-5 11 a copy of a ruling by judge Kabazo Chanda wherein lie held that the plaintiff and Mr. Lopes have no authority whatsoever to run Sentor Motors Limited. I now exl1ibit That. however, tile plaintiff has completely defied this order of the Court and has been coming to the premises to issue instructions 011 how the company should be run. That it is not true that I am a liability to the company.. When I became General Manager, the company has been running smoothly.. That I even managed to raise the turnover of the company. That at the moment I have negotiated two contracts for Sentor Motors Limited with Zambia State Insurance. Madison Insurance for about K7,000,000.00~ That I have also established new clients for Sentor Motors Limited, all for the benefit of the company. That it is therefore not true that my continous wor~tng will not benefit the company. On the contrary the plaintiff's action throughout has not been for the benefit of the company. That because of the decision of judge Chanda he has now aDplied to liquidate the company because ne nas no power to run tne company. 2/ ••••• - J3 - That I strongly believe that if this injunction is not discharged. I will suffer irreparable damage so will Sentor Motors Limited as there will be no cae to supervise the contracts that I have raised. That further the plaintiff has not come to this court with clear hands as he has failed to disclose the full facts of the case to this court. That further, upon advice of Counsel. I believe this is not a proper case for an injunction and damages would be an adequate remedy. The plaintiff has not shown how personally is going to suffer irreparable damage if the injunction is not given. That I believe this injunction should be discharged with costs." The court set aside the exparte order earlier ordered and ordered that the matter be heard interparte! on 17th March 1995. The matter was heard interparte. At the end of the hearing the court made a brief ruling in which it found that the respondent was a Director and Shareholder of the company and that the locking up of the company and making it unoperational could cause serious damage· • Tl1e court noted that it wanted to maintain the status quo of the company and on the balance of convenience the appellant having just been an employee who could be dismissed the respondent would lose if the company collapsed. The court ordered that the injunction should continue. This is the order the appellant has appealed against. On behalf of the appellant Mr. Hakanseke informed the court that there were three grounds of appeal as set out in the memorandum of appeal. He addressed the court on two grounds only and asked the court also to take into account his written heads of argument dated 29th May, 1995. The first ground argued before us was that the learned trial judge erred in law when he held that the application was a proper case for an injunction to be granted. Counsel submitted that the writ of sun~ions in this case was issued by an individual claiming for damages and yet the sumnary dismissal letter to the appellant is on Sentor Motors headed paper. Counsel submitted that the appellant•s claims had no relevance to the injunction granted since the dismissal letter had been revoked by Mr. Eiman who was the only Director who could have dismissed the appellant and wrfcf could have complained. Counsel further submitted that the respondent had no legal right to protect in relation to the company. The second ground related to adequacy of damages. 3/ •••• - J4 - In reply to Mr. Hakanseke's submissioris Mr. Maketo Counsel submitted that going by the claims in the writ of summons damages would be an adequate remedy. Counsel urged the court to take into account a judgment of the High Court delivered by another judge in which that court observed that the respondent was a dormant Director of the company. pointed out tl1at in tenns of Order 29/1 of the ~Jhite Book 1995 edition, a party to any claim is not precluded to apply for an injunction even if not included on the writ of sunfi10ns if events arise after the issue of the writ making it imperative to apply for an injunction. Counsel conceded that the initial complaint was false imprisonment and malicious prosecution but that arising out of that complaint against the appellant two Directors felt that the appellant had been insurbodinated and his activities had adverse effects on the operations of the company and decided to dismiss him. The appellant disregarded the disn1issal letter and continued to attend at the premises. He submitted that in these tances the respondent was entitled to apply for an injunction. circui Counsel urged the court to ignore the decision oy i'ir. Justice Chanda to the effect that the appellant was a dormant Managing Director as per incuriam since it decided on an issue that was not before it. Counsel further contended that there was no dispute that the respondent was a Managing Director and still a Shareholder in the company and entitled to protect his shares in the company. Counsel submitted that a shareholder in his capacity can protect his shares in a company. Counsel submitted that the argument that the respondent could not bring about this action pre-supposed that the appellant had challenged his dismissal. On the question of the adequacy of damages counsel pointed out that this was a situation of the interests of two Directors on one hand and of an employee on the other hand. Mr. Maketo argued that a mere employee would not be in a position to compensate the shareholders if the injunction was disolved. He further contended that on the facts of this case the Directors and the Shareholders are in the best position to compensate the appellant if his dismissal was found to be unlawful. Counsel submitted that the balance of convenience in the present case lies in favour of sustaining the injunction. We must point out that in the written heads of argument Mr. Hakanseke referred us to a number of authorities that have set out principles governing the grant of injunctions. We considered these authorities. 4/ •••• - JS - For purposes of this appeal, we take note that the evidence on record shows that the respondent is a Managing Director of Senter Motors Limited and also a shareholder in the same company. The record also shows that the appellant was a General Manager of Senter Motors Limited. There is evidence on record that he had been dismissed. We take note that an injunction 1s not among the claims of the respondent in the writ of sumnons; but we agree with Mr. Maketo that a party to an action is not precluded from applying for an injunction simply because the claim was not included on the writ. On the facts of this case we agree with the learned trial judge that the balance of ·convenience In our view damages would is in favour of sustaining the injunction. not be an adequate remedy for any injury that would be caused to the operations of the company if the injunction was disolved. For these reasons we dismissed the appeal with costs • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E. L. Sakala. SUPREME COURT JUDGE ........................... M. S. Chaila 1 SUPREME COURT JUDGE • .......••.•....••......•.• D. K. Chirwa, SUf.iREME COURT JUDGE.