Kutalika v Kalunga (SCZ 8 73 of 2013) [2015] ZMSC 183 (9 September 2015)

JI IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA Appeal No. 73 of 2013 SCZ/8/070/2013 (Civil Jurisdiction) BETWEEN: BERNARD KUTALIKA Appellant And DAINESS KALUNGA Respondent Coram: Phiri, Wood and Malila, JJS On 1st September, 2015 and 9th September, 2015 For the Appellant: Mr. Mando Mwitumwa of Messrs M. L. Mukande & Co. For the Respondent: No appearance (Messrs Milner Katolo & Associates.) JUDGMENT MALILA, JS, delivered the Judgment of the Court Cases referred to: 1. David Nzooma Lumanyendo and Another v. Chief Chamuka and Another (1988-1989) Z. R. 194. 2. Gordon Hill Trust Ltd. V. Segal (1941) 2 ALL ER 379. 3. Turnkey Properties v. Lusaka West Development Company Fund, BSK Chiti (sued as Receiver) and Zambia State Insurance Corporation Ltd (1984) Z. R. 105 (Reprint).. 4. Tawela Akapelwa and Others v. Joseph Mubukwanu Litiya Nyumbu (Appeal No. 004/2015). 5. Ahmed Abad v. Turning And Metals Limited (1987) Z. R. 86 (S. C.) 6. Hubbard v. Vosper (1972) 2 QB 84 at 96. 7. American Cynamid Company v. Ethnicon Limited (1975) AC 396. 8. Shell and BP (Z) Limited v. Conidaris and Others (1975) ZR 228 (Reprint).. J2 When we heard this appeal on the 1st September, 2015, we allowed it and varied the injunction order granted by the High Court so as to apply to both parties. We indicated then that our reasoned judgment would follow on the 9th of September, 2015. This is it. The appeal arises from the ruling of the High Court delivered on 21st January, 2013. A recapitulation of the factual and procedural history is necessary to accentuate the issues for determination. The appellant holds a certificate of title dated 4th November, 2009 to the parcel of land known as Stand No. 29094, Lusaka, in extent 432 square meters, more or less. Under a claim of a right she alleged was conferred under different circumstances in relation to the same property, the respondent began some construction activities on the subject property. This prompted the appellant, on the 16th February, 2012, to write to the Ministry of Lands to complain about the perceived encroachment by the respondent. The Ministry of Lands then wrote to the respondent, inviting her to a meeting proposed with the appellant and a Lands Officer to discuss the issue. That meeting did not take place. J3 The appellant did on diverse occasions advise the respondent to desist from constructing on his property, but was allegedly rebuffed. This prompted the appellant to commence legal action in the High Court, claiming in the main, a declaration that he was the rightful owner of the property known as Stand No. 29094, Lusaka, and an order evicting the respondent from the said property and other necessary and, or relevant orders. Contemporaneously with the action in the High Court, commenced by writ of summons supported by a statement of claim, the appellant also filed into court an ex-parte summons for interim injunction supported by an affidavit, in which the facts relevant to the impasse were narrated. A certificate of urgency under the hand of the appellant, also accompanied the application. The learned trial judge granted an ex-parte order on 24th September, 2012 with the inter-partes hearing being set for the 5th October, 2013. For her part, the respondent not only stoutly gainsaid the appellant’s allegations set out in both the appellant’s statement of claim and the founding affidavit for the interlocutory injunction, but also put up a robust counterclaim. In her affidavit in opposition filed on the 16th November, 2012, the respondent narrated that she came to own the land in question J4 after purchasing it from C. K. Marble Limited which held title to part of S/DN.l of Farm No. 1938 issued in July, 2001, the land on which her property sits, and that this was after C. K. Marble Limited purchased the property from the title holder of Stand No. 8047. The respondent further averred that the appellant found her already building on the said property and proceeded to erect a structure thereon without consent or regard to her accrued rights. After hearing the advocates for the parties at the inter-partes hearing and after considering the conflicting affidavit evidence, the learned High Court judge, in her closely reasoned ruling delivered on the 21st January, 2013, declined to grant the interlocutory injunction sought by the appellant and discharged the interim injunction. In the view of the learned High Court judge, the appellant had not demonstrated a clear right to relief, nor had he shown that there was a serious question to be tried at trial. According to the learned judge, the appellant’s prospects of success at trial were remote. She, however, granted an injunction in favour of the respondent against the appellant, based on her counter claim. J5 Disconsolate with this ruling, the appellant then appealed to this Court fronting four grounds framed as follows: “1. That the Honourable Court misdirected itself both on facts and law when in granted an injunction against the plaintiff on the basis of a prayer contained in the counter-claim. 2. That the Honourable Court misdirected itself both on facts and law when it held that the plaintiff’s case’s prospects at trial were not bright. 3. That the Honourable court misdirected itself in law and in fact when it held that the plaintiff was supposed to produce an offer letter. 4. That the Honourable Court misdirected itself in law and in fact when it granted an injunction to a non-title holder against a title holder.” Heads of argument were filed on behalf of both parties by their respective learned counsel. At the hearing, Mr. Mwitumwa, learned counsel for the appellant, supplemented the written heads of arguments with oral submissions. The learned counsel for the respondent, on the other hand, filed a notice of non- appearance, pursuant to Rule 69 of the Supreme Court Act, chapter 25 of the laws of Zambia. J6 As regards ground one of the appeal, the main point taken by Mr. Mwitumwa was that it was a misdirection on the part of the learned judge below to have granted an injunction against the appellant on the basis of a prayer contained in the counter-claim. The learned counsel referred us to the ruling of the lower court where the judge stated that: “Therefore taking into consideration the provisions of Order 27(1) and considering the equitable nature of the remedy of an injunction and that the discretion for the grant rests in the Judge; and on the facts and evidence before me I consider this to be an appropriate case in which to grant the defendant the injunctive relief as prayed for in her counter-claim. I therefore grant the defendant herein the interim order of injunction against the plaintiff until final determination of the main cause or until further order of the court.” Mr. Mwitumwa made the point that a counter-claim has the same effect as a statement of claim. After quoting Order 28 Rule 3 of the High Court Rules, chapter 27 of the laws of Zambia, the learned counsel questioned whether a court can, suo moto, grant an injunction in favour of another party merely on the basis of a prayer contained in a statement of claim and without an application. Mr. Mwitumwa next quoted Order 27 of the High Court Rules, chapter 27 of the laws of Zambia and contended J7 that there is nothing in that rule which allows the court to move its own motion and grant an injunction. In the present case, according to the learned counsel for the appellant, the matter came up for hearing on an application by the appellant, not the respondent, for an interlocutory injunction. The options available to the judge were either to grant the application for an interlocutory injunction or to reject it. In Mr. Mwitumwa’s view, a judge does not have jurisdiction to grant an injunction on its own motion given the fact that an injunction order comes with an undertaking as to damages. Where, as in the present case, the court grants an injunction on the basis of a prayer in a courter-claim, there is no undertaking as to damages. Mr. Mwitumwa further submitted that the grant of an injunction by the learned High Court judge in the circumstances described, was a misdirection. We were beseeched to uphold ground one on this basis. Under ground two, the appellant alleged a misdirection on the part of the learned judge when she concluded that the appellant’s case lacked prospects of success. Mr. Mwitumwa J8 made a legal point, namely that as a title holder to the disputed property, the appellant had a clear right of relief with fairly good prospects of success. He referred us to section 33 of the Lands and Deeds Registry Act, chapter 185 of the laws of Zambia which provides that a certificate of title shall be conclusive as from the date of its issuance notwithstanding the existence in any other person of any interest, whether derived by grant or otherwise. In the present case, while the appellant produced a certificate of title, the respondent merely produced a contract of sale showing that she purchased the property from C. K. Marble Limited, which did not itself hold a certificate of title. Relying on the case of David Nzooma Lumanyendo and Another v. Chief Chamuka and Another1 where we held that no rights by adverse possession can be acquired once land has become a subject of a certificate of title, Mr. Mwitumwa concluded his submission on the ground, by stating that the appellant has conclusive title to the disputed land and, therefore, had a clearer right to relief. We were implored to uphold this ground of appeal. Under ground three Mr. Mwitumwa made a short point, namely that it was a misdirection on the part of the learned judge J9 below to have held that the appellant was supposed to produce an offer letter. We were referred to the part of the judgment where the learned judge stated that she had expected the appellant to exhibit the letter of offer from the Commissioner of Lands as proof that procedure was followed in the appellant’s acquisition of the disputed property; not merely the certificate of title. According to Mr. Mwitumwa, this was a misdirection because once a certificate of title is produced, there is no need to produce further documents to prove ownership at the injunction stage. Sections 33, 34 and 35 of the Lands and Deeds Registry Act, chapter 185 of the laws of Zambia, were cited in support of this submission. Mr. Mwitumwa prayed that we uphold ground three of the appeal. Ground four raised an issue which is not dissimilar to the other grounds of appeal. It was alleged that the learned judge in the court below misdirected herself when she granted an injunction to a non-title holder against a title holder. The learned counsel quoted Sections 33 and 35 of the Lands and Deeds Registry Act, before submitting that the ruling of the High Court went contrary to the spirit and letter of these sections and has the potential of introducing insecurity in land ownership as it implied that a certificate of title is no longer conclusive evidence of J10 ownership of land. We were beseeched to uphold this ground of appeal as well. As we have stated already, the learned counsel for the respondent invoked the provisions of Rule 69 of the Supreme Court Rules, which entitles them to dispense with their attendance at the hearing so that reliance is placed exclusively on the heads of arguments submitted. The natural consequence of this was that the opportunity for the Court to engage with counsel for the respondent and to seek clarification on any issue raised by the respondent should this be necessary, was likewise waived. Regarding ground one of the appeal, the learned counsel for the respondent supported the holding of the lower court in granting an interlocutory injunction on the basis of a prayer contained in the respondent’s counter-claim. According to counsel for the respondent, an injunction being a judicial remedy could be, and was in the present case, properly granted on the facts presented. As to whether a court on its own motion can grant an injunction in favour of a party against another merely on the basis of a prayer contained in a statement of claim, and Jll without an application, the learned counsel for the respondent submitted that it may, depending on the circumstances of each case. The learned counsel quoted Order 27(1) of the High Court Act, chapter 27 of the laws of Zambia and argued that the tenor of that provision does repose in a judge sufficient discretion. In the present case, according to the respondent’s counsel, the respondent laid sufficient evidence in her affidavit in opposition filed on the 16th November, 2012, that the subject property was in danger of being wasted, damaged or alienated by the appellant and that it was her, rather than the appellant, that deserved the injunction, thus proving the requirements for the exercise of discretion by the court under Order 27(1) of the High Court Rules, in her favour. The leaned counsel for the appellant referred us to the documents on the record of appeal (pages 59 to 78), namely the respondent’s ex-parte summons for an order of interim injunction and the supporting affidavit, both filed in court on the 16th November, 2012. It was argued that as the respondent had also made a formal application for an injunction, the trial judge was on firm ground to grant the respondent the relief she sought. It is on this basis that the learned counsel countered the submissions J12 of counsel for the appellant that the lower court moved on its own motion in granting the injunction in favour of the respondent. The learned counsel for the respondent reiterated that the respondent, in her affidavit in opposition, specifically sought the injunctive relief against the appellant, which relief she also pleaded in her counter-claim. It was submitted that the appellant’s counsel’s argument that the power of the lower court was confined to either granting or refusing the application, is not borne out of any legal principle, and does, in any case, go contrary to Order 27(1) of the High Court Rules. We were urged to dismiss ground one of the appeal. Under ground two of the appeal, counsel for the respondent submitted that the lower court’s finding that the appellant’s action lacked real prospects of success, was the correct one in the circumstances. According to counsel, the case of David Ngooma Lumanyenda and Another v. Chief Chamuka and Another1 was good law, but had been cited out of context as the issue of adverse possession against a title holder did not arise in the present case. According to the learned counsel, the evidence on record shows that the source of the respondents right to the disputed property was a title holder; that title having been issued J13 earlier in time. The learned counsel quoted the provisions of Section 33 of the Lands and Deeds Registry Act, chapter 185 of the laws of Zambia highlighting the exceptions set out in that section. It was then submitted that the certificate of title No. 8047 relating to sub-division “Nl” of Farm No. 1938 held by the seller to the respondent through their agent, C. K. Marble Limited, was still a valid certificate of title and has priority over any subsequent interest claimed, whether the same is derived from a Presidential grant or otherwise. According to counsel for the respondent, there can be no title over a title and, therefore, the appellant’s title cannot prima facie stand as against the interest conferred by certificate of title No. 8047 from which the respondent derived her right to the subject land. The balance of convenience, according to the learned counsel, lies at this stage, with the respondent. It was counsel’s further contention that as a clear nexus has been demonstrated between the certificate of title No. 8047 and the respondent, the respondent’s right to relief is clear, while that of the appellant is obscured by the basic evidence provided by the respondent even without venturing into the full merits of the appellant’s case. According to counsel for the respondent, a J14 person lawfully claiming a right to land under a contract can legitimately benefit from the rights that accrue from title held by the seller under the said contract even if title is yet to be issued. Counsel urged us to uphold the finding of the lower court on this ground. Under ground three, counsel for the respondent argued that the lower court judge was on firm ground when she held that the appellant should have produced a letter of offer to the said land notwithstanding the fact that the property became a subject of a certificate of title. The short point made by the learned counsel for the respondent was that where title to land is cogently challenged in the manner the appellant’s title was challenged in the lower court, it beholves the title holder to show by other evidence that the disputed title was still better title than the opposing title. In the present case, therefore, the appellant should have adduced more evidence such as the letter of offer to show that the offer predated title No. 8047 on which the respondent’s claim to the land rested. It was counsel’s fervent prayer that ground three of the appeal be dismissed. J15 In regard to ground four of the appeal it was contended on behalf of the respondent that sections 33 and 35 of the Lands and Deeds Registry Act, chapter 185 of the laws of Zambia upon which the appellant relied to argue that the learned judge below misdirected herself when she granted an injunction to a non-title holder against a title holder, does in fact buttress the respondent’s case. Our understanding of the argument of counsel for the respondent on this score, is that for purposes of asserting ownership over a piece of land, a buyer of property yet to be granted title is in as good a position as a title holder, provided the vendor of the property in question had unimpeachable title to the land. In the present case, there is no dispute that the proprietary interest in the subject piece of land held by the respondent sources from certificate of title No. 8047. The learned counsel cited the case of Gordon Hill Trust Ltd. v. Segal2 and quoted a passage therefrom that: “as the appellant had a valid contract to purchase the property, he was in fact the owner of it in equity, and entitled to describe himself as owner.” The learned counsel also quoted a further passage from the notes in the same case as follows: J16 “it is well understood that, although a contract to sell and convey land is worded as a contract to convey to the purchaser, the vendor is always bound to convey as the purchaser may direct. Before completion a purchaser often sells to a sub-purchaser, and the vendor is bound to convey to the sub-purchaser. It is also clear that, from the date of the contract, the purchaser is the owner in equity.” The learned counsel argued that the position taken by the Supreme Court in the case of Turnkey Properties v. Lusaka West Development Company Fund, BSK Chiti (sued as Receiver) and Zambia State Insurance Corporation Ltd3 accords with the position in Gordon Hill Trust Limited v. Segal2. According to the learned counsel, certificate of title No. 8047 was issued on 24th July, 2001 and the grant took effect from 1st March, 1995, while certificate of title No. 90636 in the appellant’s name, was issued on 4th November, 2009, with the grant taking effect from 1st June, 2004. The priority of the two certificates, according to counsel for the respondent, raises a strong presumption in favour of the respondent. In any case, a perusal of the memorials in the two certificates of title shows that they relate to two different pieces of land. We were called upon to dismiss this ground of appeal as well and uphold the ruling of the lower court. J17 We have carefully considered the evidence on the record of appeal, the ruling of the learned judge in the court below as well as the arguments advanced to us by the learned counsel for the parties. Amidst the clashes of argument by counsel, we have to determine one overarching issue, namely whether the decision of the lower court to grant an interlocutory injunction to the respondent when the application for an injunction that was being considered was taken out at the instance of the appellant, was sound in law. The aggregate of the circumstances which animated this painful dispute between the parties makes it somewhat imperative for us to begin ventilating our views on the same cautionary note as we ended our recent judgment in the case of Tawela Akapelwa and Others v. Joseph Mubukwanu Litiya Nyumbu4 that: “The law with regard to interlocutory injunctions in this country constitutes one of the most difficult sections of the law. Difficult not because the law is abstruse, but because the ascertained principles for granting injunctions must be subject at all times to a rather amorphous combination of facts which are perpetually different in every case. A good deal of judicial discretion is required, and we think no one now imagines that an order of injunction would be granted as a matter of course. Judicial J18 discretion is itself a power which inheres in a judge. It is an amour which a judge should employ judiciously to arrive at a just decision. The same should not be left to the whims and caprices of a party to the action.” It is well settled that the grant or refusal of an order of interlocutory injunction is in the absolute discretion of the court, which discretion, however, like all other judicial discretions, must be exercised judiciously, having regard to all the facts and circumstances of each and every case. And as Lord Denning put it in Hubbard v. Vosper5, the remedy of interlocutory injunction is so useful that it should be kept flexible and discretionary and must not be made the subject of strict rules. With the foregoing position firmly in mind, we have to consider whether under ground one, there was a misdirection on the part of the judge in the lower court when she granted an injunction against the plaintiff on the basis of a prayer contained in the counter-claim. We have already spoken to the discretion that a judge considering an application for an injunction is vested with. Mr. Mwitumwa was of the view that such discretion as is discernable from Order 27 of the High Court Act is only exercisable where J19 there is a definite application by a party as was the case with the appellant, and may never be so exercisable where there is no application. Counsel for the respondent is of the contrary view. He posits that the discretion reposed in a judge under Order 27 of the High Court Act is wide enough to cover a situation where a request for an injunction is made in the averrements in the affidavit in opposition and in a counter-claim as happened in the present case. Mr. Mwitumwa also raised an important point about an undertaking as to damages; that where a court grants an injunction to a party who has not applied for it, there is a risk that there would be no undertaking as to damages. A grant of an injunction is ordinarily predicted on an application. As envisaged under Order 30 of the High Court Rules, an application for an interlocutory injunction is an application made in chambers. It must be made by summons which must be addressed to all the persons on whom it is to be served, and accompanied by an affidavit. The applicant will, set out the background facts justifying the grant of the injunction sought, the parameters of the injunction sought, the persons to whom the same is to be directed, et cetera, will also be set out. In the absence of an application supported by the necessary J20 background facts, a judge would not know whether an injunction is the appropriate relief to grant or not. The only exception as provided under Order 29 Rule 1 (2) of the Rules of the Supreme Court, 1999 Edition, is where the matter is one of urgency, in which case an application will be made ex-parte on affidavit, showing the circumstances that pertain to the emergency, and will be made before the issue of an originating summons or counter-claim. As the case before us did not fall under this exceptional circumstance, the exception is therefore inapplicable. It is our considered view that an injunction ought to be prompted by an application. A judge cannot exercise the discretion to grant an injunction in a vacuum for it is trite law that a court must not grant a party relief which he has not sought, or which is more than he has sought. In saying so, we are not unmindful of the provisions of Order III (2) of the High Court Rules Chapter 27 of the Laws of Zambia. That order provides that: “Subject to any particular rule, the court or judge may, in all causes and matters, make any interlocutory order which it or he considers necessary for doing justice, whether such order has been expressly asked by the person entitle to the benefit not the order or not. J21 This provision in our view presupposes an application in the first place. Only after a court has been moved would it have the power to do what is envisioned in Order III of the High Court Rules. In any case, this order stipulates a general rule that does not absolve a party seeking an injunction from applying in the normal way and proving his case as required by the rules of the court. In the present case, we note that after the appellant had commenced its proceedings leading to the grant of the interim injunction on the 24th September, 2012, the respondent filed into court its own defence and counter-claim on 23rd October, 2012. Additionally, on the 16th November, 2012 an ex-parte summons for an order of an interim injunction was also filed into court by the respondent. That summons was supported by an affidavit. We equally note that no order was granted by the court on this application as the ex-parte order in the record of appeal (at page 77) was unsigned. We note in particular that in the counter-claim the reliefs sought by the respondent included: J22 “An order of injunction restraining the plaintiff, his servants, agents or whomsoever from: (a) Encroaching, constructing or carrying out any such activities on the said property as acquired from C. K. Marble Limited above by the defendant herein. (b) Threatening or inflicting actual harm on the person of the defendant and/or her agents in any manner whatsoever.” In the affidavit in opposition dated the 16th November, 2012 the respondent, from paragraphs 15 to 21, requested the court to not only grant her an injunction, but also to discharge the injunction granted to the appellant. The record of proceedings does not show that the application was ever considered. In any case, even assuming the court had in fact based its decision on the ex-parte summons, it would nonetheless have been an irregularity in light of the nature and purpose of ex-parte applications. In Ahmed Abad v. Turning and Metals Limited6 we said the following on an ex-parte injunction: “We would like to take the opportunity of this case to observe that it seems to us that a number of practitioners and even some trial courts do not exactly appreciate the status and effect of an ex parte interim injunction. It appears to us, as evidenced by the present appeal, that an ex-parte interim injunction is equated as an interlocutory injunction. This is incorrect. An ex-parte interim J23 injunction should generally be until a certain day, (see Order 29/1/13, White Book, 1985 edition). This is so as to enable the other party to be served with the summons and the affidavit in order to be heard. An ex-parte interim injunction, therefore, runs for a limited time generally followed by an interlocutory injunction where the applicant establishes his case. On the other hand the purpose of the grant of an interlocutory injunction is to preserve the status quo until the rights of the parties have been determined in the action.” The question is whether the averrements in the counter­ claim and in the affidavit in opposition can be said to have sufficiently satisfied the requirements for an application for an injunction as envisioned in Order 27 of the High Court Act, chapter 27 of the Laws of Zambia. Our view is that it did not. An application for an injunction, as we have already stated is by summons, supported by an affidavit, which should set out the facts upon which the order of injunction is sought. It should also have a statement relating to an undertaking as to damages. In the present case, the court did not consider any application from the respondent even if it was available on the record as we have already pointed out. She could have heard the respondent’s application for an injunction simultaneously with that of the appellant. She did not. Instead she considered only the application filed by the appellant. J 24 We agree therefore with Mr. Mwitumwa’s submission that the judge in the lower court should have confined herself to considering the application before her, and on the basis of that application, to determine whether or not a case for the grant of an injunction had been made. The approach adopted by the judge in considering the affidavit evidence adduced in opposition, as sufficient to support the grant of an injunction, was in our view, inelegant. It blurs not only the burden of proof cast on the applicant for an injunction, but also does not allow for the court to follow systematically the requirement for the grant of an interlocutory injunction, including in this connection, the undertaking as to damages. The alleged circumstances, which compelled the lower court to issue the order in the absence of an application, were nowhere clearly stated in the ruling. The order complained of could in no way be described as a consequential order in view of the outright dismissal of the appellant’s application in its entirety. We agree with the appellant that the learned judge below exceeded her powers in the circumstances of this case and did not exercise her discretion judiciously, by restraining the appellant as she purported to do in her ruling. It is for these reasons that we J25 agreed with Mr. Mwitumwa that the judge, procedurally, misdirected herself in law in granting an injunction against the appellant on the basis of a prayer contained in the counter-claim, coupled with averrements in the affidavit in opposition. As regards ground two whether or not the appellant had any prospects of success in the lower court, Mr. Mwitumwa’s argument is simply that the appellant was a title holder whereas the respondent is claiming propriety interest in the property based on a contract of sale. The learned counsel for the respondent has however, countered this argument and posited first, that the position of a title holder is nearly as good as a purchaser who is yet to receive a certificate of title, and second, that the respondent’s claim to the property is traceable to a certificate of title which, in the order of things, was granted earlier in time than the appellant’s certificate of title. In applications of this sort the prospects of success are in general important, although not a decisive consideration. The court is bound to make an assessment of the applicant’s prospects of success as one of the factors relevant to the exercise of the court’s discretion unless the cumulative effect of the other J26 relevant factors in the case is such as to render the application for an injunction obviously unworthy of consideration. At the outset, the court must be satisfied that the applicant’s claim is not frivorous or vexatious and that there is a serious question to be tried at the hearing of the substantive suit. However much as one of the requirements for the grant of an interlocutory injunction is a consideration of whether or not the applicant has prospects of success, we hasten to state that this is not the only consideration for the grant of an injunction. The other requirements are so clearly set out in a legion of authorities and have been restated in the cases of American Cynamid Company v. Ethnicon Limited7 and Shell7 and B. P. Zambia Limited v. Cornidaris and Others8. Once this requirement is established, the governing consideration must be the balance of convenience. If the balance of convenience does not favour either party, then the preservation of the status quo ante bellumwill be decisive. We believe that the issue raised in ground two goes to the heart of the appellant’s case in the lower court. The whole dispute between the parties has to do with who has better title to the J27 property than the other. Determination of this issue is clearly a matter for the trial. To consider at injunction stage whether or not the arguments put forth by the parties gave either party better prospects of success than the other should not have entailed determination of the merits of the main action pending in the High Court. The guiding principle is that an injunction should not be granted if the effect would be to determine the outcome of the action against future interests of a party who might be successful at the trial. The case of Turnkey Properties v. Lusaka West Development Company Limited3 (1984) ZR 85 is authority for this position. A lower court hearing an injunction application should, as much as possible, try not to delve into and predetermine the issues to be tried in the main cause. The court should confine itself to those issues necessary for the disposal of the application without more. Having carefully examined the facts and the basis of the dispute, we are for our part, perfectly satisfied that there were cognizable and weighty issues which were ex facie fit for J28 determination in the substantive action and there were prospects of success. Ground two accordingly succeeds. Regarding ground three, the contention of the parties relate to whether or not the lower court was right to insist on the appellant producing the letter of offer to confirm that the appellant’s offer of the property was made before the certificate of title No. 8047 was issued. While the appellant maintained that production of such a letter was otiose in light of the availability of the certificate of title in the name of the appellant, the respondent was of the view that such production was necessary to dispel the possibility that the appellant’s certificate was a nullity, having been issued in respect of property already titled. The court, in appropriate cases may wish to consider the relative strength of the cases of the parties, the conduct of the parties and whether the applicant’s case is so clear and free from objection on equitable grounds that it ought to interfere to preserve the property in issue without waiting for the right to be fully established. We have to state that we do not subscribe to the view that it is impossible in all cases where title is founded on a contract of J29 sale or a deed of conveyance to show a prima facie case without exhibiting the title deeds. In our view, cases must turn upon their own facts. What is required to be made out is a prima facie case and not a prima facie title to the land. The court must bring to bear on the whole matter its own discretion in maintaining an equilibrium as between the warring parties. In the present case, the court in insisting on the production of the letter of offer went beyond what is required to determine whether or not the appellant’s case stood reasonable prospects of success. This was a misdirection. Ground three succeeds accordingly. Ground four, as we have earlier intimated, is integrally linked to the other grounds. Part of what we have stated under ground three applies with equal force to this ground. It raises the question whether a non title holder to land would be entitled to an injunction. One of the situations that the law of injunctions is designed to deal with, is to arrest a fait accompli which one party to an application would attempt to foist on the circumstances of the case, as for example, by forcibly taking over management and J30 control of the subject property or by creating for himself an environment favourable to himself so as to enjoy the res as if there were no dispute in the first place. This would go against what we stated in Turnkey Properties v. Lusaka West Development Company Limited3. There we pointed out that: “An interlocutory injunction is appropriate for the preservation or restoration of a particular situation pending trial; but it cannot, in our considered view, be regarded as a device by which the applicant can attain or create new conditions, favourable only to himself, which tip the balance of the contending interests in such a way that he is able, or more likely, to influence the final outcome by bringing about an alteration to the prevailing situation which may weaken the opponents' case and strengthen his own.” Where in an application for interlocutory injunction to restrain one party from doing an act, a definite case is made out that it is in the overall interest of justice that both parties ought to be restrained, the court should not be hamstrung to issue an order to preserve a particular state of affairs, even if both parties are restrained. In such a case, the court must clearly state the facts and circumstances which make it compelling and imperative to extend the order of injunction to both parties. J31 In our view, the justice of the situation here required that both parties be restrained from further dealing with the res until the issue of ownership of the property is determined on the merits and in finality. This was an appropriate case for an injunction to have been granted by the High Court against both parties. It was for these reasons that we allowed the appeal, varied the order of interlocutory injunction and extended it to both parties. For the avoidance of doubt, both parties by themselves, their servants, agents or whomsoever are hereby restrained from developing or further dealing with the property subject of this action until the issue of ownership is determined in finality. We order that the main action pending in the High Court be expeditiously determined by a different judge. Costs shall abide the outcome in the lower court. G. S. PHIRI SUPREME COURT JUDGE A. M. WOOD SUPREME COURT JUDGE M. MALILA, SC SUPREME COURT JUDGE