Charles Mushitu v Swift Capital Limited (Appeal No. 110/2022) [2023] ZMCA 348 (24 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) Appeal No. 110/ 2022 AND ·, ,. , ··---. - , . '-...... , . .... '._ . " ·-.,~, .. -., .,., ~ -/- ./ ... . I -. ...,.~.,,, ' SWIFT CAPITAL LIMITED RESPONDENT CORAM: Makungu, Chishimba and Muzenga, JJA On 17th November 2023 and 24th November, 2023. For the Appellant: Absent For the Respondent: Absent JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. John Mumba, Danny Mseteka, Dr. W. Amisi, Dennis S. Simuyuni v. Zambia Red Cross Society (2006) ZR 137 2. Harton Ndove v. National Education Company Limited (1980) ZR 3. Shell & BP (Z) Limited v. Coridaris & Others (1975) ZR 174 4. Jane Mwenya and Another v. Paul Kapinga - SCZ Judgment No. 4 of 1998 5. Afritec Asset Management Company & Another v The Gynae and Antenatal Clinic & Another Selected Judgments No 11 of 2019 1.0 INTRODUCTION J2 This is an appeal against the Ruling of Chibbabbuka, J delivered on 26th January 2022 in which she declined to grant an interim injunction. 2.0 BACKGROUND 2.1 The background to this appeal is that the appellant sued the respondent in the court below on 18th January 2022 by way of writ of summons for the following reliefs: (a) Order of rescission of contract of sale in respect of Stand No. LUS/144/24; (b) Damages for breach of contract; ( c) Order to declare the change of title of Stand No. LUS/144/24 from the plaintiff to the defendant illegal; (d) Costs; and ( e) Any other court order. 2.2 The appellant proceeded to make an application for an interim injunction on 19th January 2022, which was inter-partes. 3.0 DECISION OF THE LOWER COURT 3.1 The court below after hearing the application declined to grant it on the basis that the likelihood of success of the main matter appeared dim and does not warrant the placement of an injunction. 4.0 GROUNDS OF APPEAL J3 4.1 Dissatisfied with the decision of the court below, the appellant knocked on our doors on the following grounds: 1. The trial court misdirected itself in law when it departed from settled law that a court need not delve into matters to be determined at trial when considering an application at interlocutory stage when the trinl judge in the court below instead delved into matters to be determined at trial and went on to make for a misrepresentation does not hold water, yet this is the question before the trial judge for determination only after receiving and considering evidence in the matter at trial. finding and established the claim that 2. The trial court misdirected itself in law when it failed to adhere to the settled legal principle that when property is the subject matter in an action, damages would not be sufficient remedy for loss of an interest and that in such instances an injunction was the only appropriate order a court need to make. 3. Any other grounds of appeal. 5.0 APPELLANT'S ARGUMENTS 5.1 In support of ground one, the appellant argued that the court below erred when it considered the merits of the main matter during the hearing of an interlocutory injunction. It was submitted that it is settled law that a court is precluded from making a finding on the main matter when dealing with a matter at interlocutory stage. Reliance J4 was placed on the case of John Mumba, Danny Mseteka, Dr. W. Amisi, Dennis S. Simuyuni v. Zambia Red Cross Society. 1 5.2 It was further argued that the purpose of an interlocutory injunction is to maintain the status quo and that all the trial court needs to do at that stage is simply to determine if there exists a serious question to be determined at trial. Reliance was placed on the cases of Harton Ndove v. National Education Company Limited 2 and Shell & BP (Z) Limited v. Coridaris & Others. 3 5.3 We were urged to allow the appeal on this ground. 5.4 In support of ground two, the appellant contends that the failure by the court below to take into consideration the fact that the issue relates to interest in land, was a serious misdirection. It was submitted that the law takes the view that damages cannot adequately compensate a party in case of breach of contract for the sale of an interest in land. Reliance for this argument was placed on the case of Jane Mwenya and Another v. Paul Kapinga. 4 5.5 We were urged to allow the appeal. 6.0 THE HEARING 6.1 At the hearing of the appeal, none of the parties were present. The appellant filed a notice of non-appearance, whereas there was no explanation on the part of the respondent for its non appearance and JS no arguments in opposition were filed. 7.0 OUR DECISION 7.1 We have carefully considered the record of appeal and the Arguments in support of the appeal. 7.2 We are of the considered view that this matter is improperly before us and as such we have no jurisdiction to hear it. It should not have come to our court by way of appeal. It should have been a renewed application before a single judge of this court and only come to the full court either as a renewed application or an application to vary, reverse or alter a decision of a single judge of this court. 7.3 Once an interlocutory injunction application is declined by a judge of the court below, recourse lies in a renewal application before a single judge of this court. If an interlocutory injunction is granted by a judge of the court below, a dissatisfied party, who in such a case would be the respondent, must appeal to this court. That is the only time such a matter may come before us as an appeal. (See the case of Afritec Asset Management Company & Another v The Gynae and Antenatal Clinic & Another5 7.4 We are therefore precluded from considering the merits or otherwise of this appeal. On this core only, the within appeal must fail. 8.0 CONCLUSION J6 8.1 Having found that we lack the requisite jurisdiction to hear this appeal, we dismiss it. Each party will bear the costs of this appeal. ..... ....... . ~~····· C. K. MAKUNGU COURT OF APPEAL JUDGE C? F. M. CHISHIMBA ... ~ NG~---······· COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE