Mukosa v Ronaldson (Appeal 19 of 1993) [1993] ZMSC 127 (22 July 1993)

IN THE SUPREME COURT OF ZAMBIA APPEAL HO. 19 OF 1993 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: HILARY BERNARD MUKOSA APPELLANT VS. MICHAEL RONALDSON RESPONDENT CORAH: Gardner. Chai la and Muzyamba JJJS., 22nd July, 1993 For the Appellant: Mr. M. K. Maketo of Christopher Russel Cook and Company For the Respondent: Mr. H. H. Ndhlovu of H. H. Ndhlovu and Company. JUDGMENT Gardner J. S. delivered the Judgment of the court. This is an appeal from an order of a High Court judge granting an injunction restraining the appellant from taking any action to obtain possession of property situated in Hakeni, Lusaka. The history of this case is that two separate writs were issued in two separate actions. One writ claimed specific performance of a contract for sale by the appellant to the respondent of the property referred to. The other writ claimed a declaration that the respondent is entitled to occupy the premises as a property. 2/............ J2 Me have already delivered a Judgment discharging the injunction which was granted to restrain the appellant from alienating the property to any other person on the grounds that, as the respondent, as intending purchaser, was a Malawian citizen there was insufficient evidence to Indicate to this court that he would obtain the necessary permission to enable him to purchase the property in view of the fact that by the Lands Conversions of Title Act he is, as a non-Zambtan citizen, specifically debarred from owning property in Zambia. We left until to-day's hearing the question of whether the respondent has a right to occupy the premises as a tenant, and. therefore, whether an Injunction to protect that right should have been issued. Mr. Maketo on behalf of the appellant put forward a number of grounds of appeal, the first being that the property referred to by the respondent in his writ was numbered differently from the property which is described in the Lands and Deeds Registry. He maintained that, if the writ claimed tenancy of a property which was wongly described and an injunction was granted In respect of that wrongly described property, the order was of no effect, and, therefore, should be declared null and void. We are quite satisfied that all the parties including the court below were quite well aware of the fact that the action concerned the premises in which the respondent is at present residing. The Injunction was Intended to refer to those premises and to no other, and, as such, was a valid injunction. The next ground of appeal put forward by Mr. Makoto was that, when the ex parte interim injunction was granted in this case, it was stated to be returnable at a later date, and at that later date neither counsel for the respondent nor for the appellant appeared before the learned trial judge. Mr. Maketo argued that, as a result, the injunction must have lapsed, because no injunction . HTn€8?M8"Ml W88bU?8eMM85r*8r1 ?8lrj B«51e€h 3 hear an inter partes application should not have been made, and J3/.......... J3 therefore, the original lapsed Injunction is all that concerns this court. Again we are satisfied that the learned trial judge, on being informed of the situation relating to the proceedings between the parties, realised that there had never been an inter partes application before him concerning the injunction. He therefore ordered specifically at that stage of the proceedings that the parties should appear before him to argue the merits of granting an injunction. The parties accordingly appeared before him and he heard the appropriate arguments. After hearing the arguments, he made the order that the injunction to restrain the appellant from taking any action to recover of the premises should in his words "persist". Me are of the view that by those words the learned trial judge intended to convey that an injunction in the terms applied for was granted. Me therefore called upon Mr. Maketo to argue the appeal on the merits. Mr. Maketo pointed out to us that at the time when the respondent said that his occupation of the premises started, namely the 19th of August, 1991, a lease bearing the same date had been executed between the appellant and the daughter of the respondent. This lease provided that the premises should be let to her for a period of two years from the 16th of August, 1991. Alluding to the fact that, in the appellant's affidavit in support of the application for an Injunction, he had referred to a claim for mesne profits against the respondent for his occupation of the premises, Mr. Maketo said that these were incorrectly referred to as mesne profits and should have been regarded as a claim for damages for the respondent's wrongful occupation of the premises. Mhen it was pointed out by this court to Mr. Maketo that such an argument would contradict the argument that there was an existing tenancy to the daughter, Mr. Maketo put forward alternative arguments: 04/.......... J4 first that the respondent was occupying the premises pending the completion of purchase of the property, which purchase did not take place because he failed to pay the deposit required by the appellant and the contract had been rescinded. Alternatively that, as a Malawian citizen, the respondent could not nave completed the purchase and, further in the alternative, that the property was already leased to tne respondent's daughter so that he could in no way have a tenancy as claimed tn his affidavit. Mr. Ndhlovu on behalf of the respondent conceded that there was no tenancy agreement between the respondent and the appellant and by that concession indicated that consequently the respondent was not entitled to an injunction against the appellant to restrain the appellant from obtaining possession of the premises. Mr. Ndhlovu emphasized however, that the daughter was still the subsisting tenant and no action could be taken against her. As we said, we have already dealt with the question of whether an injunction could lie under the action for specific performance, and in this part of the appeal, because of Mr. Ndhlovu's concession, the matter has resolved Itself. Even without that concession we find that, in the action relating to the tenancy of the premises, the respondent has no legal standing whatsoever. He may be a guest in his daughter's house but his rights are no greater than that of any other guest. In the circumstances, therefore, the injunction should not have been granted in this action. The appeal in that respect succeeds and that injunction is discharged. Costs will follow the event. 3. T. Gardner M. S. C h a i1 a W. M. Muzyamba SUPHEME COURT JUDGE SUPREME COURT JUDGE SUPREME COURT JUDGE