Mukosa v Ronaldson (SCZ 7 of 1993) [1993] ZMSC 63 (24 June 1993)

SCZ/ No. 7 OF 1993 (4o) IN_™L SUPREME COURT OF ZAMBIA APPEAL NO. J9 OF 1993 HOLDEN AT LUSAKA_ BETWEEN: HILARY BERNARD MUKOSA Appellant Vs MICHAEL RONALDSON Respondent Coram: Gardner, Chaila & Muzyamba JJJS., 17th June, 1993 and 24th June, 1993 K. M. Maketo Christopher RussellOook and Company for the appellant. H. Silweya of H. Silweya and Company for the respondent JUDGMENT Gardner J. S. delivered the judgment of the court. Cases referred to: (1) Mundanda Mulwani and SCZ Judgment No. 10 of 1987. (2) Kulamma -v- Manadan ( 1968) A. C. 1062 On the 17th June, 1993 we allowed this appeal and said that we would give our reasons later. We now give those reasons This is an appeal from an order of a High Court judge granting an interim injunction. The notice of appeal refers to an appeal against the order of the learned judge given on the 16th day of December, 1992. The record of proceedings indicates that the actual order of the learned judge was ”1 accordingly allow the injunction to persist.” The injunction to which the learned judge referred was an ex parte interim injunction dated the 1st July, 1992 restraining the appellant from evicting the respondent from the property. During the proceedings leading to the learned judge's order Mr, Silweya had argued that he was asking for an order restraining the appellant from parting with possession of the property. ^.. Mr. Maketo had argued that in those particular proceedings 1992/HP/1607, which related to a claim by the respondent for a declaration that he was a protected tenant, sue an order could not be made. 2/ I J2 (41) The advocates for the respondent drew an order of injunctio which provided that the ex parte order of 1st July, 1992 was confirmed and that the appellant was restrained from parting with possession of the property. This was not in accordance with the judge’s verbal order, which was merely that the ex parte order should persist; but, nevertheless, the learned judge signed the order as drawn and dated it the 6th January, 1993 = At the time of the order there was a continuing action in cause No. 1992 /HP/1,588 in which the respondent was claiming * specific performance of a contract for sale of the property to him and it appears that the learned judge considered the arguments relating to that action when deciding that there should be an injunction. When the hearing of this appeal.commenced, we overlooked the fact that the order of injunction which was the subject of the appeal confirmed the ex parte injunction which restrained the appellant from evicting the respondent. We were under the impression that the appeal arose out of cause No. 1992/HP/1588 which related to a claim for specific performance. Of our own motion we drew the attention of Mr. Silweya, to the provisions of Act No. 16 of 1985 which amended the (Conversion of Titles) Act by the insertion of Clause 13A which reads as follows:- (1) No land in Zambia shall, as from the 1st April, 1985, be granted, alienated, transferred or leased to a non-Zambian: Provided that nothing herein shall be so construed as to affect any interest or right acquired by any person prior to that date. (2) Subject to complying with any other provisions and procedures relating to the alienation of land or the obtaining of the consent of the President, a non-Zambian shall be exempt from the provisions of subsection (1) under the following circumstances: (a) If it is a person who has been approved as an investor in accordance with the Industrial Development Act or any other 3/............ »» J3 (42) law relating to the promotion of investment in Zambia; (b) if it is a non-profit making charitable, religious, educational or philanthropic organisation or institution which i5 and is approved by the Minister for the purposes of this section; (c) if the:interest or right in question arises out of a lease, sub-lease, or under-lease, for a period not exceeding five years, or a tenancy agreement; (d) if the interest or right in land is being inherited upon death or is being transferred under a right of survivorship or by other operation of law; (e) (e) if the President has given his consent in writing under his hand. In his affidavit in support of his application for an interim injunction the respondent averred that he was a Malawian, and we asked Mr. Silweya how he could succeed in his action for specific performance. Mr. Silweya said that on the authority of our judgment in Mundanda -v- Mulwanj and Qther3SCZ Judgment No. 10 of 1987 (1) he would argue that the court should presume that the parties had a legal intent and intended to obtain an exemption under s. 13A (2) on the ground that the respondent was an investor in Zambia. In the Mulwanda case the parties had agreed- to the transfer of property at a price of K20,000. The agreement.provided that the purchase price would be K20,000 regardless of whether the property was valued at a lesser amount by the Government valuer in the Presidential consent. We held that, as it was possible for the transaction to be completed legally in the event of the valuation being K20,000 or more, t' ■ contract could be the subject of an order for specific performance. In arriving at th?> decision, we referred to Kulamma -v- Manadan (1968) A. C. 1062 (L) That was a Privy Council decision in a case where the personal representatives of a lessor sought, on the grounds that the contract was illegal, to avoid performance of a lease because the CT ^3) lease contained an option to purchase which could not proceed without the consent of the Board of Trustees of native land, and the relevant Ordinance provided that it should not be lawful to alienate land without such consent. The court in that appeal held that the parties should be presumed to contemplate a legal rather than an illegal course of proceedings and that nothing in the agreement led to the conclusion that consent would not be obtained That case is more in line with the facts of this case than the Mulwanda case because it dealt specifically with the obtaining - also of consent; but it was decided on other grounds, namely(%;at it was primarily a contract for a lease and employment of the lessee to farm the land. The option to purchase was found to be a minor issue. In the case at present before us what is required is not the type of consent which is required of and normally available to everyone, such as the Presidential consent required by s. 13 Of the Land (Conversion of Titles) Act’or the consent required in the Kulamma case. The respondent requires, a special exemption without which he is debarred from purchasing the property. The respondent applied for an injunction and, although he swore affidavits in support of his application averring that he was of Malawian nationality ,at no time did he aver that he was a person who had been approved or who had even applied to be approved as an investor in accordance with the Industrial Development Act or any other law. Nor did he give any other reason for exemption. An injunction will be granted only to a plaintiff who establishes that he has a good arguable claim to the right he seeks to protect. We accept that the respondent is presumed to intend to proceed legally; but in order to establish a good arguable case he must show at least that he is eligible for exemption under 13A (2). There can be no presumption about this. On the evidence before the court below and ourselves the respondent is prima facie prohibited from purchasing land in Zambia and no injunction restraining the appellant from parting with possession of the land should have been granted. For the reasons we have given the appeal is allowed and the injunction restraining the respondent from parting with possession of the land is discharged. 5/...... J5 (44) In view of the fact that the question of nationality was raised on this court’s own motion we make no order as to c o s t S j • > x *) j We have not yet heard argument relating to the continuation of the ex parte order of injunction restraining the appellant from evicting the respondent, and that injunction continues until further order. B. T. GARDNER SUP REM E_ COURT J U DG E_ S’ CHAILA SUPREME COURT JUDGE • MUZYAMBA SUPREME COURT JUDGE