Chrispin Musonda Mambwe (for and on behlad of Cross Boarder Traders Association (Sade & Comesa) v Misheck Musonda (for and on behlad of CROSS BOARDER TRADERS ASSOCIATION (SADC COMESA) EXECUTIVE COMMITEE) (2003/HP/0251) [2003] ZMHC 3 (14 April 2003)

IN THE HIGH COURT FOR ZAMBIA 2003/HP/0251 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA BETWEEN: CHRISPIN MUSONDA MAMBWE (for and on behalf Of Cross Boarder Traders Association (Sade & Comesa) PLAINTIFF AND MISHECK MUSONDA (for and on behalf CROSS BOARDER TRADERS ASSOCIATION (SADC COMESA) EXECUTIVE COMMITTEE) DEFENDANT Before Honourable Justice Mr. M. S. Mwanamwambwa in Chambers thisl4111 April,2003. For the Plaintiff Ms. M. S. Mushipe - Mushipe & Associates For the Defendant Mr. O. B. Chilernbo - O. B. Chilembo & Co. RULING ON INJUNCTION Authorities referred to : 1. ATKINS COURT FORMS. 2nd Edition (1996 issue). Volume 22 (1), pages 59- 2. SHELL AND BP (Z) LIMITED v CANIDARIS. 1975 Z. R. l 74. 3. TURNKEY PROPERTIES v LUSAKA WEST DEVELOPMENT LIMITED. 1984 Z. R. 85 This is an application by the Plaintiff (for and on behalf of Cross Boarder Traders Association Sade and Comesa), for an injunction Order, restraining the Defendants from expelling or terminating membership of any member evicting any member from their accounts with Finance Bank, Stanbic Bank, Indo Zambia Bank or any other financial institutions running or in any other way dealing with the Association until the final determination of this matter. On the Writ of Summons are eleven claims, which mainly range from K200 Million to loss of business, resulting from the contested termination of membership and eviction from the market. Both sides put in lengthy submissions, which went further than what is required at this interlocutory stage. I have considered the affidavits and arguments in this matter. An injunction is a discretionary remedy. A party is not entitled to it as of right. ( 1) In an application for an injunction there are two main issues to be considered. First and primary is irreparable injury. The applicant must show that an injunction is necessary to protect him against 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. Second is the right to relief. A party seeking an injunction must establish clearly that he is entitled to the right which he seeks to protect by an injunction. "........ the modem tendency is only to grant interlocutory injunction where the right to relief is clear" (2). IN TURNKEY PROPERTIES V LUSAKA WEST DEVELOPMENT LIMITED (3), THE Supreme Court summarised these two principles this way: " In order to succeed the appellants should have demonstrated that, not only was the right to the relief clear; but above all, the injunction is necessary to protect them from irreparable injury." On contenting rights and disputed facts, the Supreme Court has held: ,I " Where any doubt exists as to the plaintiffs rights or if the violation of an admitted right is denied the court takes into consideration the balance of convenience to the parties. The burden of showing the greater inconvenience is on the plaintiff' (2). In the instant case, I find that the loss complained of can be adequately compensated for in damages. Indeed, I noted that the majority of the eleven claims on the Writ of Summons are for quantified sums of money and loss of business. Accordingly, I am of the view that this is not a proper case for an interlocutory injunction. Further, from lengthy affidavits on both sides, it isquite clear to me that this is a highly contested matter both as to facts and violation of rights. In particular, the Plaintiff has not specified the names of members who go along with this suit. On the other hand, the Defendant has exhibited to the opposing affidavit, letters of members disassociating themselves from the case. This makes it further unclear, the prob1ems between the parties and their solutions, in so far as they relate to their rights. The Plaintiff has not satisfied me on the balance of probability, that the balance of convenience lies in his favour. Accordingly, I hereby discharge the exparte orders of injunction and stay of execution of the letters, granted on 13th March 2003, with costs against the plaintiff. Leave to appeal is hereby granted. Made in Chambers this 14th Day of April 2003.