Chilanga Cement Plc v Jignesh Frafulchandra Soni and Ors (APPLICATION NO. 34/2025) [2025] ZMCA 81 (30 May 2025)

J IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPUCATION NO. 34/2025 BETWEEN: CHILANGA CEMENT PLC AND JIGNESH FRAFULCHANDRA SONI NIZAM CRUSHERS LIMITED RENIDA INVESTMENT LIMITED ATTORNEY GENERAL 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4™ RESPONDENT CORAM: Kondolo, SC, Majula and Muzeng-, JJA On 22nd May 2024 and 30th May 2025 For the Appellant: Mrs. I. Kunda, SC, of George Kunda & Company,✓ Ms. A. D. Gray Kunda & Mrs. L. Kaluba-Zimba both of A D Gray & Partners For the Respondent: Mr. z. Sampa, of Simeza Sangwa & Associates RULING MUZENGA, JA delivered the Ruling of the Court. Cases referred to: 1. Shell and BP Zambia Limited v. Cornidaris and Others (1975) Z. R. 174 R2 2. Bernard Mukupa Chlsanga and Others v. Kabwe Municipal Council - CAZ Appeal No, 105 of 2018 3. Shamwana v. Mwanawasa, Bates v. Lord Helsham of ST. Mary Labourne 4• EDO MBA Technology Limited v. Campaign to Smash EDO (2005) EWHC (1993-1994) Z. R. 149 5. Hina Furnishing Lusaka Limited v. Mwalsenl properties Limited (1983) Z. R. 40 6. E~it~ Nawakwi v. Lusaka City Council & Another-Appeal No. 26 of 2001 7. S1skma Cargo Owners v. Distos Compania Naveira SA (1979) AC 210 8. Channel Tunnel Group and France Manche SA v. Balfour Beatty Construction Limited (1992) 2 Lloyd's Rep 7 9. Rosemary Nyangu v. Pamodzi Hotel PLC-SCZ/08/08/2021 10. Eastern and Southern African Trade v. Finsbury Investment Limited Application No. 71/2024 11. Bank of Zambia & Another v. Al Shams Building Materials Co. Limited & Another, Application No. 005 of 2024 12. Finsbury Investments Limited v Antonio Ventriglia and Manuela Ventriglia, CAZ/8/ 126/2018 13. Rosemary Nyangu v. Pamodzi Hotel PLC, SCZ/8/08/2021 14. Eastern and Southern African Trade v. Finsbury Investment Limited, Application No. 21 of 2024 15. Courtyard Properties and Management Limited v. Downtown Shopping Complex Limited and Another, Application No. OS of 2022 16. Zambia Helpers Society v. Bishop Emmanuel Milingo, Application No. 9 of 2023 17. America Cynaamid v. Ethicon Ltd (1975) A. C. 396 Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 2. The Court of Appeal Act No. 7 of 2016 . 3. The Lands and Deed Registry Act, Chapter 185 of th! _Laws of Zambia 4. The Rules of the Supreme Court of England 1999 Ed1t1on 1.0 INTRODUCTION 1.1 This application is by way of Notice of Motion to vary, discharge or reverse the Ruling of a single Judge of this Court dated 1st April 2025 R3 granting an injunction pending appeal. 1.2 The application is made pursuant to Section 9 (b) of the Court of Appeal Act, order 10 Rule 8 and all other enabling provisions of the law. 1.3 The application is accompanied by an affidavit in support and skeleton arguments. 2.0 BACKGROUND 2.1 The brief background to this matter is that the appellant commenced a matter in the Court below on the 19th August 2024, under cause No. 2024/HP/1156, against the respondents in which it sought a declaration of ownership of Farm 1523 Ndola among other reliefs and claiming that the respondents were unlawfully on its land. 2.2 Prior to this matter in the year 2021, the appellant had commenced a cause under 2021/HP/1517 against Ndola City Council and the Attorney General, seeking a declaration that it was the rightful owner of Farm 1523 Ndola, that the subdivisions created over the said land were wrongful and null and void, among other reliefs. Ndola City Council in this cause was granted an order to join over 200 defendants who were title holders and beneficiaries of the subdivisions in question. R4 A consent order was thus entered in this cause where it was adjudged that the whole of Farm 1523 belonged to the appellant, that the subdivisions be regularised and marked off, among other orders. When it came to the knowledge of the 1st and 2nd respondents that there was a cause in the High Court relating to the Farm 1523, in which its titled properties apparently sat, they applied to join the cause as they were going to be affected by the Consent Order entered into as they were similarly circumstanced. 2.3 The appellant then proceeded to commence the cause referred to in paragraph 2.1 above. The application for joinder by the 1st and 2nd respondents was at the time of commencement of this cause pending hearing before a Judge in cause 2021/HP/1517. 2.4 This prompted the 1st and 2nd respondents to make an application to dismiss the matter for irregularity and abuse of court process on account of the earlier cause No. 2021/HP/1517, whose claims were similar in which the issues under the new cause could have been concluded in the earlier cause instead of commencing a fresh action. 2.5 The learned trial Court agreed with the respondents and found that all the reliefs sought in that action can be pursued in the 2021 cause of RS action as both were premised on the same central issue, which is the encroachment of Farm 1523 by developers who were granted title or subdivisions by the 4th respondent. The trial court then proceeded to dismiss the cause. Unhappy with the dismissal of the cause, the appellant filed the appeal herein on the following grounds: i) The lower court erred in law and in fact when it held that the plaintiff ought to pursue the reliefs sought in this matter, the earlier action under Cause No. 2021/HP /1517. in ii) The lower Court erred in law and in fact when it dismissed the action on the grounds that it amounted to abuse of Court process. The appellant proceeded to apply for an injunction pending appeal before a single Judge of this Court. THE DECISION OF THE SINGLE JUDGE The single Judge of this court, after considering the application for an interlocutory injunction held the view that she had jurisdiction to grant an injunction. After considering the principles enunciated in the case of Shell and BP Zambia Limited v. Cornidaris and Others1, Section 33 of the Lands and Deed Registry Act among other authorities the single I Judge of this Court . was satisfied that the principles for the grant of an R6 injunction had been satisfied. The judge went further to hold that the grant of the · · cti m1un on was necessary to maintain the status quo and since the subject matter is land, the appellant would suffer irreparable damage. 3.3 The single Judge went further to grant an interim Injunction restraining st , 2nd and 3rd respondents, whether by themselves or by their the 1 officers, servants or agents or otherwise howsoever from continuing to build on any part of Farm Number 1523 Ndola until the appeal is heard and determined. 4.0 THIS APPLICATION 4.1 Dissatisfied with the single Judge's verdict, the pt and 2nd respondents filed the present application. The same was supported by an affidavit sworn by Jignesh Frafulchandra Soni, being the 1st respondent and Managing Director of the 2nd respondent, and heads of arguments. 4.2 The affidavit in support basically mirrored the arguments and as such we shall proceed to summarise the arguments. 4.3 In their first ground, the 1st an 2nd respondents take issue with the finding to the effect that the appellant would suffer irreparable damage R7 when it is clear in the facts that the appellant was not interested in damages, especially that it was able to enter into a consent agreement th over 200 developers similarly placed with the respondents. It was wf argued that the guidelines on adequacy of damages must be determined on a case by case basis as the same was not cast in concrete. Reliance for this argument was placed on the case of Bernard Mukupa Chisanga and Others v. Kabwe Municiple Council. 2 Counsel argued further that in this case, the 1st, 2nd and 3rd respondents had been in occupation by virtue of titles issued to them for a period of over 10 years and had extensively developed the properties in issue and as such this was a unique case which ought to have been considered on its merits . . 4 In the second ground, learned counsel for the 1st, 2nd and 3rd respondent contends that injunctive relief must be promptly sought and the single Judge erred when she granted the same in the light of inordinate and inexcusable delay by the appellant. Reliance for this argument was placed on the case of Shamwana v. Mwanawasa, Bates v. Lord Helsham of ST. Mary Labourne3 and Order 29/lA/26 of the Rules of the Supreme Court (RSC), among 0ther authorities. the RB It was argued th respondent's competin . . g mterest in or about August 2023 but only at the appellant became aware of applled for an injunction . '" August 2024 and that this delay does not entitle the appellant to an . . . lnJunct,on. It was argued that by the said delay, the status quo Id cou not preserved as the respondents had been ,n possession of the land in question on the basis of holding certificates of title, some of which date from the year 2011 and construction had already been undertaken on the respective pieces of land. It was submitted that there is no real urgency . . 5 In support of the third ground, learned counsel contends that an injunction being an equitable remedy should be used as a shield and not as a weapon, as such it cannot be used as an aggressive tool. Reliance for this argument was placed on the case of EDO MBA Technology Limited v. Campaign to Smash ED0.4 It was submitted that the respondents having been in possession of the land for a period of over 10 years on the strength of title deeds and having extensively developed the land in question, granting an injunction against them amounts to using an injunction as a sword and is aimed at granting the appellant unfair advantage and leverage over them. R9 4,6 In respect of the fourth ground, It was argued that an Injunction being an equitable remedy entails that he who comes to equity must come with clean hands as was held In the case of Hlna Furnishing Lusaka Limited v. Mwalsenl properties Limited5 and affirmed in the case of Edith Nawakwi v. Lusaka City Council & Another. 6 It was submitted that the equitable relief herein, should not have been granted to the appellant as it did not come to the court with clean hands on account that it commenced a fresh matter knowing too well of an existing matter, making it guilty of multiplicity of actions. 4.7 In the fi~h ground, it was contended that the single judge erred when she granted an injunction in the absence of a subsisting matter in the High Court following the dismissal of the cause in the High Court. It was submitted that whilst they acknowledge this Court's jurisdiction to grant, vary or discharge an injunction, such power is premised on there being an existing cause of action. It was argued that the injunction herein should not have been granted by the single judge since the subject matter which gave rise to the injunction was dismissed. Reliance for this submission was placed on the cases of Siskina Cargo Owners v. Distos Compania Naveira SA7 and Channel Tunnel RlO Group and France manche SA v. Balfour Beatty Construction Limited, among 0ther authorities. It was contended that without an existing cause of act· . ion, an fnJunctfon racks legal foundation and must consequently be dismissed. · 8 We were ultimately urged to discharge, vary and/or reverse the Ruling. of the single Judge dated the 1st April 2025 with costs. 5.0 HEARING 5-1 At the hearing, learned counsel for the 1st, 2nd and 3rd respondents relied on the motion and arguments filed in support thereof. Learned counsel for the appellant opposed the application and made viva voce arguments. He contended that the renewed motion was not properly before us as it was couched as an appeal. Our attention was drawn to the argument made by the appellant which faulted the decision of the single judge of this Court. Learned counsel placed reliance on the cases of Rosemary Nyangu v. Pamodzi Hotel PLC, 9 Eastern and . Southern African Trade v. Finsbury Investment Limited, 10 and Bank of Zambia & Another v. Al Shams Building Materials Co. Limited & Another, 11 in praying that the motion be dismissed. Counsel urged us to dismiss the motion with costs. I .. 6.0 OUR DECISION 6.1 We have carefully Rll . consrdered the respondent's Notice of Motion, the affidavit in supp rt h , t e arguments relied on by each party as well as th e oral submissions by counsel. We have also considered the circumstances surrounding this application and the Ruling of the single Judge, Which the respondent assails. 6.2 We note that learned counsel for the respondent in their arguments questioned this court's jurisdiction to entertain and grant the appellant an injunction on account that there is no pending matter in the High court following its dismissal. This issue was also raised before a single judge of this Court, who ruled that she had jurisdiction. Since a jurisdictional issue has been raised, we shall deal with that first. 6.3 The facts herein are very clear that there is currently no matter pending determination in the High Court, as the same was dismissed. After launching an appeal to this Court, the appellant applied for an injunction pending appeal before a single Judge, which injunction was granted. We had occasion to rule on a similar issue of jurisdiction of this Court to grant an injunction pending appeal. We stated in the case r .. Rl2 of Finsbury Investments Limited v Antonio Ventriglia and Manuela Ventriglia12 that: "So in the absence of any other provision in the High Court Act or rules thereof, a Judge of the High Court is not clothed with power to grant an injunction in a matter that is before the Court of Appeal. However, what Order 59 Rule 10 RSC does in effect is to confer upon the Court of Appeal in matters on appeal from the High Court, such powers as would be exercised by the High Court." 6.4 Order 59 Rule 10(9) RSC which we relied on in our decision above provides that: "In any proceedings incidental to any cause or matter pending before the Court of Appeal, the ~owers conferred by this rule on the Court may be exercised by a single Judge in relation to: (a) (b) The grant, variation, discharge or enforcement of an injunction or an undertaking given in lieu of an injunction; and The grant or lifting of a stay of execution or proceedings." 6.5 It is clear therefore that a single Judge of this Court and consequently this Court has jurisdiction to grant an injunction pending appeal. We must state that an application for an injunction pending the determination of an appeal is not predicated on the existence or none existence of proceedings in the court below. It is anchored on the appeal pending before the Court and this Court has original jurisdiction Rl3 to hear and grant the same. We therefore agree with the single judge's decision on this issue and we find no merit in this argument. 6.6 Learned counsel for the appellant in opposing the appl\cation has challenged the manner in which this court was moved. He argued that the motion was couched like an appeal and must as such be dismissed on that score. 6. 7 The Apex Court and this Court has guided on the manner in which the full court is moved in terms of renewed applications. This guidance is very clear in the cases of Rosemary Nyangu v. Pamodzi Hotel PLC13 and Eastern and Southern African Trade v. Finsbury Investment Limited,14 among other cases. We have guided that when a person makes an application before a single and the same is not granted, the applicant should renew the declined application to the full court. The applicant in so doing must present the application before the full court in substantially the same manner as it was presented before the single Judge of this court. The applicant is not allowed to fault the single judge in anyway. If the renewed application is presented with grounds faulting the single judge, the application becomes irregular and liable to be dismissed. 6.8 However respond , When . a single ent IS aggrieved b can move the full R14 . Judge grants Y the grant of the . the application and the r . app ,cation, the respondent the single jud arge or reverse the decision of court to vary disch , ge. In this case th Motion as th or Summons. This is not properly called a renewed application , e respondent moves the ful\ Court by e respondent cannot r . . 6. 9 Order 10 Rule 2(8) of enew an apphcat1on which was not theirs. . the CARs, which provides for moving the fu\\ . court by a person a . . .. ggneved with the dec1s1on of a single judge enacts that: . . "A . person who 1s aggneved by a decision of a single l"!dge and who intends to have the decision varied, discharged or reversed by the Court under section 9{b) of the Act shall, before the date of hearing of the application by the Court, file three extra copies of the proceedings, including copies of the affidavits filed by the other party prior to the single judge's decision, for the use of the Court." .10 We note that this provision does not use the word renew, but we have guided that when an application is declined by a sing\e Judge of th\s Court, the applicant, if unhappy, must renew the application before the full court. Meaning, the applicant must present the application before the full Court in the same way it was presented before the single Judge. I I RlS On the other hand, the respondent to an application which was granted the single Judge cannot renew before us, the application which was before the single judge as it was not his or hers. Although sometimes we use the term renewal when the app\\cation to the full cou ,s m rt · ade by the respondent, it is not a renewed app\\cation properly so ca\\ed · We have in such circumstances allowed the respondent to an application to refer to the decision of the single Judge. It sti\\ remains a motion as it is styled, and not an appeal. 6.11 In our decisions and the decisions of the · Supreme Court, the applications which we have dismissed for having grounds which challenge or fault the single Judge's decision involved renewed applications by a party whose application was declined by the single judge. Even in our recent decision, referred to by \earned counsel for the appellant, the Bank of Zambia case supra, we dismissed an application before the full court, which the app\icant, whose application to dismiss the appeal was declined, and then renewed the application before us, but put grounds faulting the single Judge. The reason was that al\ the applicant needed to do is present the application in the same manner as they placed it before the single Judge. I I 6.12 In the cas Downtow re R16 e of Courh, · "1ard Prope,t· n Shopping Co res and Management Limited v. spondent Who was not h . , mplex Limited and Another Js the appy with the single Judge of this court's decision moved M . a ot,on to the full Court to vary, discharge or reverse the Ruling of the si ng/e Judge. The respondent in that application faulted the decisi to do so w . . on of the smgte Judge and we allowed the respondent · e summansed the respondent's (who was now the applicant in the application before the full Court) argume~ts in the following words in paragraph 6.1: "The argument by the applicant is that the single Judge did not interrogate the reasons given for the delay to file the record of appeal, and without any evidence of cardinal facts stated as reasons for not filing within the time, they had been allowed to file the application the second time, when he held that one cannot extend time which has elapsed." 6.13 We proceeded thereafter to conclude in Paragraph 6.11 that: "We are of the view that the learned single Judge misdirected himself in granting the Order to extend time as the appellants were reacting to the application to dismiss the appeal for want of prosecution. The application to dismiss the appeal for want of prosecution was made earlier than the application to extend time. The Judge should not have proceeded to hear the subsequent application without first determining the r I I R17 earlier ap~lication. Further, the reasons advanced ~or the delay 1n prosecuting the appeal are unacceptable. 6-14 In another case of Zambia Helpers Society v. Bishop Emmanuel Mi lingo, 16 the appellant faulted the single Judge for dismissing its appeal. We noted the appellant's argument in paragraph 6.l as follows: the to have evaluated "The argument by the applicant is that the single Judge filed Notice of ought Discontinuance and Affidavit in support of the notice ~f discontinuance to ascertain the propriety of the said irregularly filed documents before relying on them and a decision to dismiss the appeal to the detriment and prejudice of the appellant and the intended intervenors, when an adjournment was sought, to which there was no objection by both parties." 6.15 In our decision, we faulted the single Judge's decision. We stated as follows: "6.4 I~ is our ~onsidered view that in light of the forego1ng, the single judge should have adjourned the !"atter _to allow counsel for the applicant to obtain 1nstruct1ons. 6.6 At the point the single Jud was certain that the partie ~e d ism1ssed the appeal, it withdrawal of the a e s a ~ot consented to the prudent of the judge t!~nal, thus _1t would have been parties put their house in owd an adJournment so that the l : r er. ~e _are of the view that t~e dismissing the appeal ,, ~ q~ "!'•sd1rected himself in learned single d" . · mp as1s ours 6.16 Wh at is clear frorn the full court h ' e or sh the authoriti . es is th at When th ( and also th e is allowec1 to f, revers· e full co . Urt in its Rulin ault the single J e respondent moves , udge s decision Ing the · single Judge' g, When va · . . s dec1s1on ma decisio n and this Court application pr ' Y fault the single Judge's does do so O . n the contrary, in a renewal rymg, discharging or , operly so called, the . . single Jud , a . . ge s decision. The a applicant is not allowed to fault the . pphcant is only required to present the . PPllcat1on as it was before a single Judge of the Court. No new grounds are perm'tt d t e to be mcluded in the motion. The fu\\ Court in . its Ruling does no in any way fault the single judge's refusa\ of the t . application. It simply considers the application as presented before \t and decides whether to grant it or not. No reference must be made to the Ruling of the single Judge, as to whether it was misdirected, on firm ground or made in error, et cetera. 6.17 In the light of foregoing, we have considered the motion before us and we have found it to be compliant with Order 10 Rule 2(8) of the CARs and competently before us. We therefore find no merit in learned counsel for the appellant's arguments. We nowt urn t o consider that the R19 the rnerits of b efore the s· rnanner in Wh· h IC the the rnotion before application w us. We note Was a Ingle Judge of th· is court by the n Ordinary appr . rcat,on for an .. as Presented and argued appellant was as though it consideration on h centre of th w ether or not to . e appJrcation. The a rn1unction. The principles for . . grant an inJunction was at the the . . Pnnc1ples govern· celebrated case of ing Ppellant anchored its application on th e grant of injunctions as espoused in the Shell & BP Zambia Ltd supra. Namely the right to relief being I . . . c ear, the possrbrlrty of suffering irreparable damage and preserving or maintaining the status quo. Learned counsel for the 1st, 2nd and 3rd respondents in opposing the apphcat,on before the sing\e . · . · judge, equally argued around the principles governing the grant of injunctions and stated that the said principles were not satisfied by the appellant. The learned single Judge equally anchored her decision to grant the within injunction on the same principles. Learned Counsel for the 1st , 2nd and 3rd respondent, in moving us argued that the principles for the grant of the within injunction were not satisfied. 6.19 We wish to provide guidance to the parties on this subject of injuncti~ns. There is a difference between an app\icat\on for an R20 injunction pend· . h rg Court and H rng the hearin .. an rn1unct' When an application for 9 or determination of the cause in the ion pend1ng the determination of an appeal. . an mterrm or interlocutory injunction is made . in the High Court th ' e considerations for the grant or refusal of the injunction are . as provided in the cases of Shell & BP Zambia Ltd supra, America Cynaamid v. Ethicon Ltd17, among other cases. When for some reason, the High Court declines to grant the injunction and the applicant renews the application before a single Judge of this Court, the considerations are the same. In the event that the application is granted and the respondent is not happy and appeals to this court against the grant of the injunction, the considerations on appeal will be the same. In these circumstances, the injunction sought is anchored on the matter pending trial or conclusion of the cause in the High Court. This was not the case in casu and as such the considerations are different. 6.20 What the appellant sought and was granted herein was an injunction pending the determination of the appeal in this court. The considerations for the grant of an injunction pending determination of the appeal are different from an injunction pending determination of trial in th Which · IS p e High Co . ending b ependent granted is d are n t 0 as e d etermin r lJrt. efore th i"h· IS a . PPhcation . e Court. i"h ,s anchored on the appea\ on the Viabil'ty ther or not it wi\\ be erefore whe ' I of the a . n application f SPQused in a PPeal. The considerations a ion of the cause . or an injunction pending feel constrained t in the High c ourt. In the circumstances we respondents o consider the ar guments advanced herein by the the singl ' as they seem to e Judge, Which pri . argue the principles as presented before . nc1ples are not necessary for this kind of application. 6.21 As we have alread Y noted, the apphcat,on for an injunction pending . . appeal derives its life from the appeal. A Court must therefore consider whether the pending appeal has reasonable prospects of success before granting the injunction. Otherwise, what wou\d be the justification for granting an injunction pending the determ\nat\on of a hopeless appeal? Otherwise more damage would be occas\oned to the party against whom the injunction is obtained, as the appeal is bound . to fail. 6.2 2 W e have considered the Ruing of the High Court Judge, the grounds W\thout of appeal and the circumstances surrounding the case. delving too d . view that the appeal has eep into the R22 . merrts of the pending appeal we hold the ' the firm view that d. no reasonable prospects of success. We hold . irecting herself properly, the learned single Judge of this Court Id wou not have arrived at the decision that she did. 6.23 th We erefore discharge the injunction granted by the single Judge of this Court on the 1st April 2025. 7.0 OUR DECISION 7 · 1 For avoidance of doubt, the injunction granted by the single Judge of this Court is hereby discharged. 7.2 Costs will be in the cause. ~ = ..........:: ........ .-~ ...•. ..........•• M. M. KONDOLO, SC COURT OF APPEAL JUDGE ········· ·~ · · · · ······· COURT OF APPEAL JUDGE K. MUZENGA COURT OF APPEAL JUDGE