Faustina Sinyangwe v Edward Mumbi (APPEAL NO. 30/2009) [2010] ZMSC 17 (7 January 2010)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO.30/2009 BETWEEN: FAUSTINA SINYANGWE APPELLANT AND EDWARD MUMBI RESPONDENT Coram: Chirwa, Chitengi, and Mwanamwambwa, JJS On 23rd April, 2009 and 7th January, 2010. For the Appellant: Mr. M. Lisimba of Messrs Lisimba and Company. For the Respondent: Mr. L. Kalaluka of Messrs Ellis and Company. JUDGMENT Chitengi, JS, delivered the Judgment of the Court. Cases referred to: 1. Ahmed Abad Vs. Turning and Metals Limited (1987) Z. R. 86. 2. Turnkey Properties Vs. Lusaka West Development Company Limited ( 1984) Z. R. 85. 3. Dr. J. W. Billingsley Vs. J. A. Mundi ( 1982) Z. R. 11. 4. Mususu Kalenga Building Limited and Another Vs. Richman's Money Lenders Enterprises (1999) Z. R. 28. This is an appeal against the decision of the High Court which granted the Respondent an interlocutory injunction restraining the Appellant from purporting to act as a member of a political party called the Patriotic Front. The facts of this case are that at the material time the Appellant was a member of the Patriotic Front, a political party on whose ticket she is a Member of Parliament for the Matero Jl Constituency in Lusaka. On 3 rd January, 2008 the Respondent who is the Secretary General of the Political Party to which the Appellant belongs, charged the Appellant with misconduct for referring to the President of the party, Mr. Michael Sata, as a thug. The article in which the Appellant called the party President a thug appeared in the Post Newspaper edition of 30th December, 2007. On 15th February, 2008 the Appellant was tried by the disciplinary committee of the party and on 15th March, 2008 acting on the recommendations of the disciplinary committee of the party resolved to and expelled the Appellant from the party. Although the Appellant was informed of her expulsion from the party, she never challenged her expulsion. The Respondent then informed the Honourable Speaker of the National Assembly of the Appellant's expulsion from the party. Despite her expulsion the Appellant has continued to attend meetings and other programmes as Member of Parliament for Matero Constituency and to attend sessions of National Assembly and the National Constitutional Conference in the name of the party. During the sessions of the National Assembly and the National Constitutional Conference the Appellant contradicted the views of the party on several national issues. During the 30th October Presidential by-elections the Appellant campaigned against the party's candidate, thereby alienating several members from the party. In Matero Constituency, the party's standing among ordinary members has been eroded because of the Appellant's disloyalty. The Respondent, therefore, sought the injunction to restrain the J2 Appellant from purporting to act as a member of the Patriotic Front, the Party will suffer in the eyes of its members and those intending to join will stay away to the detriment of the party, a situation which cannot be atoned for by damages. The Appellant's reply was that she was elected Member of Matero constituency during the Presidential and General Elections of 30th September, 2006 on the Patriotic Front ticket. In 2007 Parliament passed the National Constitution Conference Act No. 17 of 2007 for the purpose of enacting a new Republican Constitution. Members of Parliament from the Patriotic Front participated in the enactment of the National Constitutional Conference Act. When the National Constitutional Conference was being debated in draft form the President of the Patriotic Front made some suggestions which were taken into account and as a result the National Constitutional Conference Act was passed unanimously. The National Constitutional Conference Act (hereafter referred to simply as the Act) stipulated that all Members of Parliament would be required to be members of the National Constitutional Conference (hereinafter referred simply as NCC). However, when the NCC was to start work the President of the Patriotic Front took the stand that Patriotic Front Members of Parliament should not participate in the NCC. The Partriotic Front position was broadcast in the electronic and print media. The Appellant and other Patriotic Front Members of Parliament took the different position that it was their constitutional and statutory duty to participate in the NCC as a constitutional making process. The Appellant and the others J3 were also of the view that in any case the position taken by the Patriotic Front had no rational or legal basis. The reaction of the Patriotic Front was to threaten the rebel Patriotic Front Members of Parliament with expulsion from the Party. To forestall their expulsion from the Party the Appellant and the others affected sought and obtained an injunction from the High Court restraining the Respondent from expelling the Appellant and the other members affected. When Honourable Henry Mtonga, Patriotic Front Member of Parliament for Kanyama Constituency died, Patriotic Front and other political parties Members of Parliament contributed K4.8 million to be given to the family of the late Member of Parliament. Before the money was given to the family of the deceased the Deputy Secretary General of the Patriotic Front, one Dr. Mulenga, demanded that the money was required by the Party for its use and that the Party would later account for the money to the deceased's family. The Appellant refused to release the money as the money was for the deceased's family and not for the Party. It appears the position she took over the money did not please the Party hierarchy, more so that she was one of the rebel Members of Parliament who had obtained an injunction restraining the Patriotic Front from interfering with their functions as Members of NCC. Later when she went to Matero Constituency she learned that the party had word that she should not be entertained because she was suspended from the party. A group of Patriotic Front cadres who she called hoodlums insulted and assaulted her in full view of the public. It was then she called the people who had attacked her and the party leadership that had J4 instigated the attack on her as thugs. Later she reported the matter to the police. When she was charged with misconduct by the Respondent, she appeared before the Disciplinary Committee but she declined to make any statement because she did not want to prejudice the criminal investigations that were pending. She said the incident leading to her assault and the disciplinary charge are directly connected to her membership of NCC and the disciplinary charge was an attempt to circumvent the Court proceedings. She has not been disloyal to the Patriotic Front. No irreparable harm or damage would be occasioned to the Patriotic Front if she is not restrained from acting as Member of Parliament especially that the incident took place over a year ago and she has been performing her functions without any proof of irreparable injury that has been occasioned. Further there are no future acts which she is about to commit which will result in the Patriotic Front suffering irreparable damage that cannot be atoned for by damages. On this evidence the learned trial Judge found that the Appellant was expelled for calling the Patriotic Front Party President a thug and not for being a member of NCC which was distinct issue in Cause Number 2007 /HP/ 1272 ,vhich was before Mrs. Justice C. B. Phiri. The learned trial Judge also found that the Appellant's continued rebellious actions performed in the name of the Patriotic Front Party would likely cause irreparable harm or injury to the Patriotic Front Party. Further the learned trial Judge found that the Respondent established the right to relief and that the balance of convenience weighed in favour of the Respondent because it was not in the best interests of the JS Patriotic Front Party for the Appellant to continue to portray or hold herself out as a member of the Patriotic Front Party when she had been expelled from the Party. Finally the learned trial Judge held that granting an interlocutory injunction in this case would not conflict with the Supreme Court's decision in Cause Number 2007 /HP/ 1272 which is on appeal and if the Supreme Court decided in favour of the Appellant. It was the view of the learned trial Judge that the two cases deal with different issues. For these reasons the learned trial Judge granted the Respondent the interlocutory injunction he sought. Dissatisfied with the judgment of the learned trial Judge the Appellant now appeals to this court. The Appellant filed an amended Memorandum of Appeal with five grounds of appeal. The first ground of appeal is that the Court below erred in law and in fact by granting the injunction where the Plaintiff had failed to show that it would suffer irreparable damage and that the balance of convenience weights in favour of the Respondent. The second ground of appeal is that the learned trial Judge erred in law and in fact by considering the merits of the main matter at the injunction stage. The third ground of appeal is that the learned Judge in the Court below erred in law and in fact in granting an injunction which was the effect of a declaratory order. The fourth ground of appeal is that the Court below erred in law and in fact in failing to find that granting the injunction also had the effect of not maintaining the status quo, but in effect J6 created a situation which had not existed prior to the date of the injunction. The fifth ground of appeal is that the Court below erred in law and in fact in failing to find that this case is inextricably linked to Cause Number 2007 /HP/ 1279 and subsequently there are two conflicting Rulings on injunction relating to the Appellant. Counsel filed detailed written heads of argument which they augmented with oral submissions. In the view we take of this appeal, we shall deal with ground two first because if this ground of appeal succeeds then it will not be necessary to deal with the other grounds of appeal. The gist of the written heads of argument on ground two by Mr. Lisim ba, learned Counsel for the Appellant, is that the injunction decided the main issue. Mr. Lisimba pointed out that in the Writ of Summons and the Statement of Claim, the Respondent sought a declaratory judgment that the Defendant ceased to be a member of the Patriotic Front following her expulsion from the party on 15th March, 2008. In short the Respondent sought an order of the High Court to declare the Appellant as having been expelled from the party and, therefore, ceased to be its member. It was Mr. Lisimba's submission that by granting the injunction the learned trial Judge decided the main issue at injunction stage which is contrary to the principle laid down in cases like Ahmed Abad Vs. Turning and Metals Limited( 1l > Turnkey Properties Vs. Lusaka West Development Company Limited12, and Dr. J. W. Billingsley Vs. J. A. Mundi(31 • In Ahmed Abad Vs. Turning and Metals Limited111 this court held that an injunction should J7 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. In the Turnkey Properties case(2 ) this Court held that it is improper for a court hearing on interlocutory application to make comments that may have the effect of pre empting the decision of the issues which are to be decided on the merits at the trial. And in the Billingsley131 it was said that an interim injunction should be treated as such and purported final determination of all issues at that stage is a nullity. Mr. Lisimba then referred to a passage from the learned trial Judge's Ruling to illustrate that the judgment decided the main issue. Mr. Lisimba referred to the learned trial Judge's Ruling at page 18 lines 14 to 10 where the learned trial Judge said:- "The defendant in this case has been expelled for misconduct ........... I am also of the considered view that the courts cannot impose members on political parties unless the procedures for such expulsion have not been duly complied with.') Mr. Lisimba's oral submissions on this ground are a repeat and an emphasis of his written heads of argument. The reply on ground two by Mr. Kalaluka, learned Counsel for the Respondent, is rather confusing. In his written heads of argument Mr. Kalaluka submitted that the issue raised in ground two was not raised at the trial in the Court below and argued that on authority of Mususu Kalenga Building Limited and Another Vs. Richman's Money Lending Enterprisesl41 it is incompetent for the appellant to raise the issue on appeal. However, in his oral argument Mr. Kalaluka submitted that the Respondent did J8 not seek a declaration but rather averred that the Appellant ceased to be a member of the party and, therefore, a Member of Parliament. Mr. Kalaluka emphasized that the claim was that the Appellant ceased to be Member of Parliament a year ago. As to whether the issue in ground two was raised in the Court below, we are satisfied that it was Mr. Mundashi learned Counsel for the Appellant in the High Court sufficiently raised and argued this issue (see page 65 of the Record of Appeal). We have carefully considered the submissions on this ground and we have carefully analyzed the judgment of the learned trial Judge. Authorities, including those cited to us, are agreed that at an injunction stage the Court should not say anything that would pre-empt the trial of the main issue and that an injunction should not be granted where the effect would be to decide the main issue at the trial. In this case, the Respondent sought a declaratory judgment that the Defendant (now Appellant) ceased to be a Member of Patriotic Front following her expulsion from the Party on 15th March, 2008. After filing the writ the Respondent made application for an interim order of injunction to restrain the Appellant from purporting to act as a Member of Patriotic Front after her expulsion. The Appellant entered a Defence and filed an affidavit opposing the application for an injunction. The Appellant's Defence and affidavit in opposition join issue with the Respondent as to the validity of the Appellant's expulsion. And as we see it this is a case where if an injunction is granted, as the learned trial Judge did, it will inevitably decide the main issue. Contrary to Mr. Kalaluka's submissions the Respondent sought a declaratory judgment that the Appellant ceased to be a member of the Patriotic Front. The injunction that was granted restrained the Appellant from acting as a member of the Patriotic Front. Doubtless, and as Mr. Lisimba rightly submitted, the injunction decided the main issue which is contrary to the principles of granting injunctions as stated in the authorities cited. We accept the submissions by Mr. Lisimba that the learned trial Juc:gc fell into error by deciding the main issue at the injunction stage. The passage we have quoted above from the learned trial Juugc's Ruling puts it beyond all doubt that the learned trial Judge used the injunction to decide the main issue. This was not a proper case where an injunction should be granted because doing so would be deciding the main action. Ground h::_• o, therefore, succeeds. Ground two having succeeded, it is not necessary for us to deal with the other grounds of appe~J as doing so will only be an academic exercise. The result is that we allow this appeal and reverse the Ruling of the learned trial Judge. The Appellant will have her costs to be agreed upon and in default to be taxed. Jill D. K. CHIRWA SUPREME COURT JUDGE \~Jtf~TE~ GI SUPREME co1r· . T ,JUDGE J10