Hell Run Corporative Society Ltd and Another v Makuni Products Ltd (Appeal 150 of 1998) [1999] ZMSC 68 (20 January 1999)

Appeal No. 105/98 IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT KABWE AND LUSAKA (Civil Jurisdiction) BETWEEN: HELL RUN COOPERATIVE SOCIETY LIMITED 1ST APPELLANT LUPIYA 1 EDDIE SHACHIBWANKA 2ND APPELLANT anti MAKUNI PRODUCTS LIMITED RESPONDENT Coram: Sakai a, A/DCJ, Chirwa, Lewanika, JOS 4th November, 1998 and 20th January, 1999 For the Appellant: A. J. Shonga of Snamwana £ Co. For the Respondent: No appearance. JUDGMENT Lewanika, JS. delivered the judgment of the court. When we heard this appeal on 4th November, 1998, we dismissed the appeal with costs and said we would give our reasons later and we now do so. In dealing with this appeal we shall refer to the respondent as the plaintiff and the 1st and 2nd appellants as the 1st and 2nd defendants because that is what they were in the court below. The brief facts which are not in dispute are that the plaintiff and the 1st defendant entered into a contract for the sale of plot 5280 Lusaka at a price of two hundred million Kwacha. The contract of sale was the usual Law Association of Zambia Contract and Conditions of Sale and appears on pages 22 to 25 of the record. The parties agreed that the plaintiff who was the purchaser was to take vacant possession on 18th December, 1995. The plaintiff paid by way of instalments seventy-five million Kwacha towards the purchase price. The plaintiff cook possession of part of the plot in question and installed machinery to carry on some business. Completion did not take place and a dispute arose between the parties as a-'result of which the 1st defendant purported tc rescind the contract and entered into another contract with/2nd defendant and assigned the same property the to the 2nd Defendant who created a legal mortgage in favour of the 3rd defendant. In spite of this assignment the plaintiff continued to be in possession of a portion of the same property. The plaintiff tnen instituted proceedings against the 1st, 2nd and 3rd defendants claiming inter alia:- (a) A. declaration that the purported sale and/or assignment of the property known as plot No. 528u Lusaka by the 1st defendant to the 2nd defendant was fraudulent and consequently is null ano void and of no effect whatsoever. (b) A consequential declaration arising from (a) above that the purported creation of a legal mortgage by the 2nd defendant in respect of the said plot No. 5280, Lusaka is null and void and of no effect whatsoever. (c) An order directing the 1st defendant to specifically perform an agreement for sale by the 1st defendant to the plaintiff of the said piece of land known as plot 5280 Lusaka and a further order that the 1st defendant do all such acts and execute all such documents as may be necessary to transfer legal title in the said land to the plaintiff. (d) Damages for any loss and/or damage occasioned to the plaintiff on account of the 1st defendant's fraudulent sale/assignment of the said plot 5280, Lusaka. (e) An injunction to restrain the defendants and each of them and whether acting individually or collectively and whether by themselves, their servants or agents or howsoever otherwise J3 from selling, transferring, dealing or purporting or threatening to sell transfer or deal with the property known at plot 5280 Lusaka or doing anything whatsoever that would prejudice, affect or interfere with the plaintiff's interest in the said property including the plaintiff's right to the quiet and peaceful enjoyment thereof pending the determination of this suit. The plaintiff applied for and was granted an interlocutory injunc­ tion ana it is against the grant of that interlocutory injunction that this appeal is made. Counsel for the cefendunts has advanced only one ground of appeal namely ti.at the learned trial Judge erred in granting an injunction to stop completion of a sale wnen in fact the sale had been completed. In arguing mis ground counsel submitted that an injunction Is an order of the court directing a person to do or refrain from doing a particular act ano mat in this case the court granted an injunction to stop the sale. Tnat the court could not do so, as the event which it is envisaged to stop, had in fact happened. Counsel further said that the learned trial Judge in her ruling did not say that the sale was a nullity, in any case, tnat this was a matter which could only be determined at the conclusion of the trial. However, counsel conceded that despite the sale between the 1st and 2nd defendants having taken place, the plaintiff was still in possession of a portion of the property in question. We have considered the argument advanced by counsel for the defendants and would agree with him that an injunction may not' issue to stop a sale that has already taken place. However, in this particular case the injunction was not only directed at the sale but also at protecting the plaintiff's right to a cuiet and peaceful enjoyment of that portion of the property that he is in possession of, pending the determination of the trial. It was for this reason that we dismissed the appeal with costs. E. L. Sakala ACTING DEPUTY CHIEF JUSTICE D. K. Chirwa SUPREME COURT JUDGE D. M. Lewanika SUPREME COURT JUDGE