Dominic Chola Mulaisho and Anor v Development Bank of Zambia and Ors (2002/HP/0659) [2020] ZMHC 475 (30 June 2020)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA ( CIVIL JURISDICTION) BETWEEN: ;:, _ _ Pi<iNQE'l'< L , ' • • -·- 2002/HP/0659 DOMINIC CHOLA MULAISHO KALULUZI INVESTMENTS LIMITED INTIFF 2ND PLAINTIFF AND DEVELOPMENT BANK OF ZAMBIA SIPHO M PHIRI (Sued in his capacity as joint Receiver of Kaunga Investments Limited) 1 ST DEFENDANT 2ND DEFENDANT WILLIAM KABEMBA (Sued in his capacity as joint Receiver of Kaunga Investment Limited) 3RD DEFENDANT ANNABEL FLOWERS LIMITED 4™DEFENDANT Before Hon. Mrs. Justice S. M. Wanjelani in Chambers on the 30th day of June, 2020 For the Plaintiffs: Messrs Zulu &Company Practitioners For the 4th Defendant: Messrs Musa Dudhia & Company RULING ON APPLICATION TO SET ASIDE AND DISCHARGE INTERLOCUTORY INJUNCTION OR TO FORTIFY UNDERTAKING AS TO DAMAGES Cases re (erred to: 1. Iveson v Harns (1802) 32 ER 102 2. Re Loykenham, Terrence (1971) Ch 204 Legislation referred to: 1. Rules of the High Court, Cap 27 of the Laws of Zambia 2. The Rules of the Supreme Court, 1999 Edition Rl The 4 th Defendant filed this Application to Set Aside and Discharge the Interlocutory Injunction or fortify undertaking as to damages. The application was filed pursuant to Order 27 Rule 4 of the High Court Rules, as read with Paragraph 29/L/29 of the White Book. The Interlocutory Injunction sought to be set aside and discharged was granted on 17th March, 2003. The application is supported by an Affidavit sworn by Timothy Robert Evans, a Director and Shareholder in the 4 th Defendant Company. He deposed that the 1st Plaintiff was granted an ex parte Interim Injunction on 28 th July 2002 against the 4 Defendants at the time and made an undertaking as to damages and the injunction was confirmed after an inter-parte hearing in a Ruling dated 17thMarch, 2003. The Deponent averred that the Defendants' appeal against the Ruling was unsuccessful. He vied that the 4 th Defendant was joined to the proceedings by consent in March 2005 but has never been heard on the matter of Interlocutory Injunction and there has been no amendment of the Injunction to include the 4 th Defendant and it remains in the same form it was granted in 2002. It was further deposed that the Interlocutory Injunction was discharged when the Plaintiff's case was struck off for want of prosecution 1n a Ruling dated 15th July 2016, and later resuscitated by the Judgment of the Supreme Court dated 8 th August 2019. The Deponent contended that since the 1st Plaintiff is deceased, there is presently no undertaking as to damages as the 2 nd Plaintiff never made any such undertaking, nor have the Administrators. R2 It was further vied that the 2002 Injunction cannot apply to the 4 th Defendant as it was neither a Party to the proceedings at the time nor heard on the application, while the Plaintiffs represent to the public that they have an Injunction restraining the 4 th Defendant from dealing with the property. The Deponent deposed that pnor to the restoration of the Injunction by the Supreme Court, the 4 th Defendant had entered into negotiations with an Intended Purchaser, who was however threatened by the Plaintiffs and thus could not proceed with the sale of the property, which has resulted in loss to the 4 th Defendant in the sum of USD 3,506,054.67. Consequently, the Deponent seeks an Order requ1nng the Plaintiffs to provide an undertaking in the said sum which includes the purchase price of the property and legal fees. It was averred that the Plaintiffs should fortify the undertaking as to damages so as to ensure that the 4 th Defendant's rights and interests are protected. The 1st Plaintiff's Administrators filed an Affidavit in Opposition sworn by Dominic Mazuwa Mulaisho, who deposed inter alia, in relation to the genesis of the matter, and of relevance to this application, are the averments that on 6 th January 2005, the Supreme Court dismissed the Defendants appeal against the Injunction, while the 4 th Defendant was joined to the proceedings on 16th March, 2005. It was averred that the Plaintiffs' appeal to restore the matter to the active list, which had been struck off on 21 stJune, 2012, was R3 granted by the Supreme Court and the Injunction restored on 8th August, 2019. The Deponent averred that he was advised that the undertaking made by the 1st Plaintiff was assumed by his Administrators, and further that the Intending Purchaser was warned about the dispute pending in Court. The Deponent's other averments related to the status of the 4th Defendant at the time of the transaction as well as the immigration status of the Intending Purchaser. There were no submissions from the 1st, 2 nd and 3 rd Defendants. Both Counsel for the Plaintiffs and the 4 th Defendant filed Skeleton Arguments in Support of their respective cases. The 4th Defendant contends that at the time the Interim Injunction was granted in 2002, the 2 nd Plaintiff was not a Party and did not give an undertaking. Conversely, that the 4 th Defendant was not a Party and cannot be bound, and did not have an opportunity to defend its interests. The cases of Iveson v Harns1 1l and Re Loykenham, Terrencel2 l were cited in support of these assertions. It was submitted, in the alternative, that the Plaintiffs should fortify their undertaking as to damages. It was contended that the 4 th Defendant had suffered loss because of the Injunction and the Court ought to determine the loss the 4th Defendant has suffered and order the Plaintiffs to fortify the undertaking by paying into Court, security in the sum of USD3,506, 054.67. It was further submitted that the 2 nd Plaintiff and the Intended Plaintiffs have made no undertaking in respect of damages, they R4 are unwilling and unable to provide respective undertakings, thereby leaving the 4 th Defendant with no recourse in the event that the Injunction ought not to have been granted in the first place. In response, the Plaintiffs' Counsel submitted that the Supreme Court directed twice that the Injunction should stay in place. It was argued that the purpose of the Injunction was to avoid irreparable loss and if the 4 th Defendant sells the property in dispute, the Plaintiffs would suffer irreparable loss. It was further submitted that the facts on record show that the 4 th Defendant has no real prospects of success at trial. I have considered the Affidavits with their exhibits, the record before me as well as the detailed Skeleton Arguments by respective Counsel. There is no dispute that at the time the Interim Injunction was confirmed on 17th March 2003, after an inter-parte hearing, the 2 nd Plaintiff and the 4 th Defendant were not Parties to the proceedings. They were joined to the proceedings later. To this effect, there is provision in the High Court Rules that deals with joinder of Parties, in particular, Order 14 which states: "5. (1) If it shall appear to the Court or a Judge, at or before the hearing of a suit, that all the persons who may be entitled to, or claim some share or interest in, the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the Court or a Judge may adjourn the hearing of the suit to RS a future day, to be fixed by the Court or a Judge, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be. In such case, the Court shall issue a notice to such persons, which shall be served in the manner provided by the rules for the service of a writ of summons, or in such other manner as the Court or a Judge thinks fit to direct; and, on proof of the due service of such notice, the person so served, whether he shall have appeared or not, shall be bound by all proceedings in the cause: (underline mine) This clearly shows that both the 2 nd Plaintiff and the 4 th Defendant are bound by all the proceedings that took place in the matter. I, therefore, do not find any basis to require the 2 nd Plaintiff to make a separate undertaking as to the damages or for this Court to provide to an audience for the 4 th Defendant to make representations as regards the Injunction, which was already in place. Furthermore, as pointed out by the Plaintiffs' Counsel, the Supreme Court, in two separate Rulings directed that the Injunction should continue until determination of the matter. In this regard, the principle of stare decisis goes without saying. In relation to fortifying the undertaking, Paragraph 29/L/29 of the Rules of the Supreme Court, provides for this to be done. It states further that: "a Defendant shall apply for the security at the time when the injunction is grated and the undertaking R6 given. The Court has no power subsequently to impose an additional term on the grant of an injunction." (underline mine) As already alluded to, the 2 nd Plaintiff and the 4 th Defendant were bound by all the proceedings. Based on the totality of the facts in this case and the cited authorities, the Court has no jurisdiction to re-open the Injunction hearing or grant any further orders thereto. The application is therefore dismissed with costs to the Plaintiffs. Leave to appeal is granted. Delivered at Lusaka this 30th day of June, 2020. R7