Gilbert Zulu v Hamwambwa (Appeal 187 of 2009) [2012] ZMSC 109 (5 October 2012)

JY\ c IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 187/2009 HOLDEN AT LUSAKA (CIVIL JURISDICTION) GILBERT ZULU AND TEDDY HAMWAMBWA APPELLANT RESPONDENT Coram: Sakala, CJ., Chibesakunda and Mwanamwambwa, JJS On 7th September, 2010 and 5th October, 2012 For the Appellant: Mr. E. C. Banda, of MNB Chambers and Mr. N. Nchito For the Respondent: ^Mr. L. Moono of Nkhana Chambers JUDGMENT Chibesakunda, Ag. CJ delivered the Judgment of the Court. Cases re ferred to: 1. Shell and BP Zambia Ltd vs. Conidaris and others (1975) ZR 174. [ 2. National Milling Company Limited v A. Vashee (Suing as Chairman of Zambia National Farmers Union) (SCZ Judgment No. 23 of2000) When the appeal was heard, the composition of the coram was Sakala, CJ, Chibesakunda and Mwanamwambwa, Judges of the Supreme Court. His Lordship Hon. Mr. Justice Sakala has since retired so the judgment is } J a majority judgment. This is an appeal against the ruling by the High Court granting an injunction against the Appellant in a claim by the Respondent for “an injunction restraining the Defendant from evicting the Plaintiff from lot 4919/M Kitwe; an order that lot 4919/M Kitwe does not form part of farm 4151 Kitwe or that the Plaintiff is not in the Defendant’s piece of land;99 He also applied for costs. According to the affidavit evidence by both counsel, the two plots number 4919/M and farm 4151 are adjacent to each other as exhibited in the document marked TH2, a photostat copy of the lay out plan of the two pieces of land. The Respondent built a house at plot 4919/M. The Appellant was a shareholder and Director in a company called Gilliejoy Limited, which company is the registered owner of farm number 4151, Kitwe (documents GNZ1 and GNZ2) are true copies of both the 14 years lease held earlier on and the current title number 77023 relating to the same farm). In April 2007, the Respondent applied to the Kitwe City Council for allocation of plot number 4919/M which belonged to Mr. Walamba. There was no response. The Appellant’s position at the High Court was that, pursuant to the Judgment in cause number 2009/HK/94 the right of possession of farm number 4151 was granted to Gilliejoy Ltd. In June 2009, the Appellant (as a Shareholder of Gilliejoy Ltd and Director), evicted all squatters from his farm number 4151. In August 2009, the Appellant threatened to evict the Respondent, alleging that the Respondent’s house and fence around his house were on farm number 4151. Because of these threats the Respondent came to court seeking the Court’s intervention restraining the Appellant from evicting him from farm number 4151. The Appellant also deposed that the Respondent had not been evicted as a squatter from farm number 4151 because he had not resisted being evicted. The Respondent in his affidavit in support claimed that plot 4919/M did not form part of farm number 4151. Therefore, the Respondent was not in the Appellant’s piece of land. The Respondent in the affidavit had stated that farm number 4919/M was not part of farm number 4151. This is why when the Appellant evicted all the squatters, he did not evict him. The Respondent also deposed that plot 4919/M belonged to Mr. Walamba. He had contacted him to buy that farm from him. Mr. Walamba himself had indicated that he had no interest in lot 4919. So Mr. Walamba, had advised him to apply to Kitwe City Council to get Title Deed of this land. The Respondent did not encroach on the land of the Appellant. This is why he was not included on the list of squatters in the Judgment dated 13th T March, 2009 Cause number 2009/HK/94. On the application to produce boundary verification Map before the court, the Respondent’s position was that the Appellant should have included the court and the Respondent’s lawyer in the exercise I because this exercise was necessitated by this cause of action. This exercise was conducted at the instigation of the Appellant to prove that the Respondent was a squatter. Therefore, because of this omission to involve the court and the Respondent’s lawyer in the drawing up of this boundary verification map, the court rightly rejected the production of this map. Counsel further argued that in addition, this very map did not establish how many Acres had been encroached. The lower court after hearing these arguments granted the injunction to the Respondent. Hence this appeal before this court. The Appellant has raised five grounds of appeal, these are:- 1. The Learned Trial Judge misdirected herself in law when she held that the Appellant had not produced any Evidence to show that the Respondent was a squatter on Farm 4151. 2. The Learned Trial Judge misdirected herself in law and in fact when she held that the Boundary verification exercise conducted by the Appellant with the help of Surveyors from the Ministry of Lands was irregular and prejudicial on account of the absence of the Judge and other interested parties. 3. The Learned trial Judge erred in law and in fact when she held that the Respondent was entitled to an interlocutory injunction as he was likely to suffer irreparable injury if evicted and that damages would not be adequate to compensate him. 4. The Learned Trial Judge misdirected herself in law and in fact when she held that considering the balance of convenience the Respondent was entitled to an injunction. 5. The Learned Trial Judge misdirected herself in law when she held that the Appellant had no right to defend the Proceedings and make the claim that the Respondent is a squatter on Farm 4151. Grounds one and two were argued seriatim. It was argued that the Respondent had applied to court for interlocutory relief. As per the well established golden rule, the burden of proof is always on he who is alleging. So the Respondent who was the Applicant had the burden of establishing that he had a clear claim of right and that if the injunction was not granted, he would suffer irreparable damages on the balance of probabilities. It was therefore argued that the evidence produced by the Respondent should have established a clear claim of right. It was argued that the Respondent should have established that he was not a squatter, not the other way round as stated by the Learned Trial Judge. It was argued that if the evidence by the Appellant was such that if in the opinion of the court it was insufficient or unwarranted to warrant a finding that the Respondent was not a squatter at farm 4151, this opinion, however, automatically could not have rightly entitled the Respondent to be granted an injunction. It was pointed out that this court has in a number of cases held that, the mere fact that a defence has failed, does not entitle a right to a claim (See Khalick Mohamed Vs The Attorney-General) The Appellant had attacked the portion of the Learned Trial Judge’s Judgment which reads:- "The Plaintiff had agreed that plot 4151 does not form part of the farm and he does not occupy the Defendant’s piece of land. This is a triable issue” In the opinion of the Appellant, the Learned Trial Judge, deducing from this portion of this Judgment, clearly concluded that this matter was a matter which was fit for trial. The Appellant’s argument is that it was inevitable even at this stage to consider the locus standi of the Respondent in order to determine whether or not he had a clear claim of right to be entitled to an interlocutory relief of an injunction. Coming to ground two he argued that the learned trial Judge misdirected herself when she held that the boundary verification exercise conducted by the Appellant with the help of surveyors from the Ministry of Lands was irregular and prejudicial to the Respondent on the grounds that the court and other interested parties were not invited to be present whilst the exercise was carried out by the Ministry of Lands Surveyors and the Appellant when this matter had commenced before the High Court. The I Appellant argued that this approach was flawed as it was the primary duty of all the parties to a matter to tender any relevant evidence to help the court reach the right conclusion. It was further pointed out that the Respondent did not object to the production of the boundary verification Map. It was further argued that the main question was whether or not the Respondent was a squatter at farm number 4151. The consequential question which necessary had to be addressed was whether the evidence establishing that the Respondent was physically at farm number 4151 would be considered to be prejudicial to the Respondent. Given that sort of background, the logical argument was that if the court wanted to verify the assertion that the Respondent was at farm number 4151, the court should have visited the farm. However, this verification exercise would not have been necessary as this surveying exercise was carried out by independent surveyors from the Ministry of Lands. The Respondent’s response on grounds one and two was that the issue which was before the court was whether or not Lot 4915 formed part of Lot 4151 and therefore making the Respondent a squatter. The Appellant’s claim was that he was in possession of a surveyor’s report from Ministry of Lands marked GN1. Counsel argued that the surveyor’s report on which the Appellant was relying was issued after these proceedings were commenced at the request of the Appellant. Counsel further argued that the verification of the boundary of 4151 was done in the absence of the Judge and other interested parties and did not give clear demarcation between two properties. Counsel further pointed out that Gilliejoy carried out an eviction of all squatters and that the I ’ list of squatters did not include the Respondent. Counsel therefore urged this court to dismiss grounds one and two. On ground three and four which were argued together, the gist of the Appellant’s argument was that the court below erred when it held that the Respondent was entitled to interlocutory injunction as he was likely to suffer irreparable injury if evicted and that damages would not be adequate to compensate him and that against that background, the Respondent considering the balance of probabilities was entitled to an injunction. According A1 > 1 fl to the Appellant, the Respondent would not suffer an irreparable damage because according to the evidence, farm 4151 did not belong to the Respondent but belonged to Mr. Walamba and the Respondent did not dispute this point. The Appellant went on to argue that the Respondent was claiming to have the locus standi of a piece of land which had been surveyed and was subject to Certificate of Title by another person. Therefore, to establish that the Respondent would suffer irreparable damages the Court I. ought to have considered the provision of the law. Section 35 which says:- “After land has become the subject of a Certificate of Title, no title thereto or to any right, privilege, or easement in, upon or over the same shall be acquired by possession or user adversely to or in derogation of the title of the Registered Proprietor.99 On ground three and four, the Respondent’s arguments are that the Appellant should have produced documents to prove ownership of plot 4151. Citing the case of Shell and BP Zambia Ltd V. Conidaris and Others1 where this court laid down f guidelines for granting an interlocutory remedy of an injunction, Counsel for the Respondent argued that the Respondent had established a clear claim of right. It was argued that ownership of the land in question was not an issue; that the court was right to grant the injunction to the Respondent. According to counsel, the Respondent was entitled to court’s protection. It was further argued that the Respondent in this case would have suffered irreparable damage if the injunction had not been granted. The brief argument to ground five was that the learned trial Judge erroneously shifted the burden of proof. It was argued therefore that as the Respondent applied for an injunction, the onus was on him to prove his entitlement. On ground 5 the Respondent’s response was that in the light of fact that the Respondent was not claiming ownership of lot 4151, the Respondent was only seeking protection because the Appellant was about to evict him. It was further pointed out that the court taking into account that Gilliejoy Ltd owned farm 4151, ordered Gilliejoy Ltd to be joined to the proceedings since it is trite law that non joinder can not defeat an action. National Milling Company v A. V. Vashee2. It was argued that this court should not bar the Respondent from obtaining relief on the ground that there was omission in joining the two parties. We have considered the heads of argument and the issues raised in this appeal. It is trite law that the court will not grant an interlocutory injunction unless the applicant establishes a clear claim of right. It is also trite law that the injunction will only be granted to protect litigant from irreparable damage. Irreparable damages has been defined to be injury that is substantial and can never be adequately remedied or atoned by way of damages; not injury which cannot possibly be repaired. ( See the case of Shell and BP). Looking at the Judgment, we are satisfied that the court was well guided. It has been argued that the learned trial Judge shifted the burden of proof to the Appellant . We do not accept that argument. Our views is that the main question at that stage was to consider whether it was necessary to protect the Respondent from irreparable damage. In a number of cases there have been arguments as to what would amount to clear claim of right. In a number of authorities, courts have described the standard of proof required to granting of an the injunction. In some authorities the court has described this standard of proof by stating that where a claimant establishes a prima facie case or where a claimant raises triable issues. In this case the lower court held that there were triable issues and thus granted the injunction. The lower court also on its own motion responding to the question of the locus standi of the Appellant, ordered, a joinder of Gilliejoy Ltd, as the certificate holder to farm number 4151. It has been argued that the Respondent had no locus standi to ask for an injunction. We note that although the Respondent did not have Certificate to farm number 4151 he, with the consent of the owner Mr. Walamba, developed this piece of land. We therefore hold that he had an equitable interest and hence, locus standi: Because of that interest, we hold that the court below was correct to have given him interlocutory injunction pending the hearing of main claim. We therefore cannot fault the lower court, we find no merit in the appeal, we therefore dismiss it with costs to be taxed in default of agreement. L. P. Chibesakunda, ACTING CHIEF JUSTICE /rmc