John Mumba and Ors v Zambia Red Cross Society (SCZ 31 of 2006) [2006] ZMSC 14 (15 December 2006)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 141 OF 2005 SCZ NO-31 OF 2006 AT LUSAKA (Civil Jurisdiction) BETWEEN: JOHN MUMBA DANNY MUSETEKA DR. W. AMISI DENNIS S. SIMUYUNI AND 1st APPELLANT 2nd APPELLANT 3rd APPELLANT 4th APPELLANT ZAMBIA RED CROSS SOCIETY RESPONDENT Coram: Sakala, CJ., Chibesakunda and Mushabati, JJS. On 12th October, 2006 and 15th December, 2006. For the Appellants: B. Gondwe of Banda Gondwe and Associates. For the Respondents: H. A. Chizu of I. C. Ng’onga and Company. JUDGMENT Mushabati, delivered the judgment of the Court. Cases referred to: L Shamwana and 7 Others vs. The People (1985) Z. R.4I J 2 2. 3. 4. Walusiku Lisulo vs. Patricia Anne Lisulo (1998) Z. R. 75 Dr. Billingsley vs. Mundi (1982) Z. R.11 Turnkey Properties vs. Lusaka W. Dev. Co. Ltd (1984) Z. R.85. Legislation referred to: High Court Rules, Cap.27 - Order 39 r 1. This is an appeal against the High Court’s refusal to review and enforce its own ruling of 26th November, 2004. The ruling under review was made on 20th January, 2005. In this judgment we shall refer to the appellants and respondent as plaintiffs and defendant respectively as this is what in fact they were in the main action. The plaintiffs are tenants of some property known as 1196 Kudu Road Kabulonga, comprising of some flats. Sometime in September, 2004 the defendant decided to sell the said flats without giving the plaintiffs the first chance of refusal. The plaintiffs decided to commence this action seeking for: (i) A declaratory Order that they were entitled to purchase the said flats they occupied, (ii) An ex-parte injunction to restrain the defendants by itself agents or servants from; (a) Interfering with their quiet enjoyment and occupation of the said flats. (b) Trespassing on the said piece of land containing the said flats. J 3 These orders sought were intended to prevent the defendant from allowing prospective buyers to view the flats and to stop vendor from evaluating the flats unless it was with the consent of the plaintiffs. They further sought to prevent the defendant from advertising the sale of stand No. 1196 Kudu Road, Kabulonga, offering the same for sale to the public and evicting the plaintiffs from the said flats. The ex-parte injunction was granted but it was dissolved on 26th November, 2004 after an inter-parte hearing. The plaintiffs then applied for an ex-parte order to stay execution pending an application for review of the ruling of 26th November, 2004. The ex-parte order was granted on 28th December, 2004 by Kakusa, J. The inter-parte was to be heard by the trial judge. The application for review was refused and the ex-parte stay of execution order was discharged by the trial judge, hence this appeal to this Court. The plaintiffs then applied for another ex-parte order before a single judge of the court to stay the High Court ruling of 26th November, 2004. The application was granted pending the hearing and determination of the appeal by the full court. The other issue that was raised and which requires our consideration is the directive or order made by the learned trial judge at the interlocutory stage. The order was made in his ruling of 26 November, 2004. In that ruling, the learned trial judge directed as follows: The justice of the case therefore demands that the flats are valued and applicants given 30 days in which to purchase, if 30 days finishes (sic) before 31st December, 2004 then which ever day falls later, that is when those who J 4 fail to buy will vacate. The 30 days will run from the day after the offer containing the valuation has been made. The circumstances of the case put the court in a situation where some issues determinable at trial have been determined at interlocutory stage, not because the court wanted to do, (sic) but the pleadings dictated that the court does so. Basically these are the facts surrounding this appeal. The plaintiffs filed two grounds of appeal which are as follows: /. The Court below erred in refusing to review its own judgment and enforce its own judgment of 26th November, 2004 even after evidence of circumvention of the said judgment was produced, 2. The Supreme Court is urged to take judicial notice of cause number 2004/HP/A70 wherein the record shows the valuation report relied on by the respondent was done by a practitioner under suspension. Both counsel filed in detailed heads of argument which they buttressed with brief oral submissions. The gist of the plaintiffs heads of argument and submission is that the defendant refused to obey the directions of the High Court and that the High Court itself failed to enforce its decision against the defendant. The plaintiffs, quoting paragraph 550 of Halsbury’s Laws of England volume 26 of the 4th Edition, argued that they were entitled to the enforcement of the ruling made on 26th November, 2006. Secondly that the court should take judicial notice of case No.2004/HP/A.70 in which it was shown that the valuation report relied on by the defendant was originated by a person who J 5 was on suspension. Their authority for urging us to look at the said case record was the decision of this Court in the case of Shamwana and others vs. The People (1) in which we said: a judge has, however, not only to look at his own records, but also those of another judge and take judicial notice of their contents. The defendant’s heads of argument and submission are to the effect that the court below was on firm ground when it refused to review its own judgment because the application was misconceived as there was no merit in the application and that plaintiffs had failed to show that such fresh evidence, which existed at the time of trial was not made available to the court through no fault of their own but on the ground that its existence was unknown to them, had been discovered. On the second ground of appeal the defendant’s counsel argued that the question of taking judicial notice was not raised in the court below. He argued that the plaintiffs were instead attempting to adduce fresh evidence relating to the valuation report. He further argued that the plaintiffs were trying to use the court to have a contract, between them and the defendants drawn for them. In conclusion, he said the plaintiffs had raised an issue that went to the root of the case when in fact the issue at hand was one of an interlocutory injunction. We have carefully considered the submissions by both counsel. In light of the view we are taking in this matter, we do not intend to delve much into grounds of appeal. J 6 We are, however, going to consider the issues of stays that were granted by both the High Court and the single judge of this Court and also the directives made by the lower court First and foremost the issue that was before the lower court was one for injunction. The question before the trial judge was whether the case before him was a proper case for grant of an injunction or not The learned trial judge, after the inter-parte hearing, dissolved the ex- parte injunction he had earlier granted to the plaintiffs on the ground that the case was not a proper one in which he could use his discretion to grant the injunctive order prayed for. The learned trial judge properly directed himself on this issue. However, after the injunction was discharged, the court below granted an ex-parte order for stay of execution. The court below should have asked itself, before granting the said stay as to “what was there to stay.” When the ex-parte injunction was discharged the parties retained their original status which could not be stayed by the court. We really find no justification or ground for the learned trial judge to have granted the stay of execution when the application for review of the ruling of 26th November, 2004 was pending before him. He, however, properly directed himself when the discharged it after the inter-parte hearing. A similar position still existed when the application for stay of execution was made before the single judge of this court. What we have said of the trial judge regarding the grant of the stay in this case is true of what should have been done by the single judge of this court. There was nothing to be J 7 stayed by the court i.e.which could be enforced as a court order if the application had not been granted. We wish to emphasize the point that when a court grants an ex-parte injunction which is later dissolved the only remedy remaining, to the party applying for it, is to appeal against such refusal. The appeal against that refusal will undoubtedly be a fresh application before the full court because a single judge of the court has no jurisdiction to grant an injunction. The grant of stay in this case by the single judge of this court amounted to a grant of a fresh injunction to the plaintiffs, which should not have been the case. The trial judge refused to review his ruling of 26th November, 2004. The plaintiffs counsel argued that the trial judge ought to have taken judicial notice of the case under cause No.2004/HP/A.70 regarding the person who prepared the valuation report. The defendant’s counsel submitted that this issue was never raised in the court below. A court may review its decision or order on sufficient grounds. One of such grounds is that some evidence, that existed at the time of the hearing, was not made available to court on the ground that even after a diligent search it could not be found. Further this power is discretionary. We wish to re-affirm what we said on this topic in the case of Lisulo vs. Lisulo (2). We said: The power to review under Order 39 Rule 1 of the High Court Rules, Cap.27 is discretionary for the judge and there must be sufficient grounds to exercise that discretion. J 8 We find no sufficient grounds upon which the trial judge could have reviewed his earlier ruling of 26th November, 2004. In any case, the review that was applied for touched on issues we shall shortly be considering. We wish now to consider the efficacy of the directives or orders made by the lower court. The counsel for the plaintiffs wanted them to be enforced by the lower court but counsel for the defendant argued that those directives went to the root of the main case and should not have been made at that stage. Our well considered view is that the learned trial judge ventured into considering issues that were not properly before him. He, himself, acknowledged the fact that his decision, which should not have been made at an interlocutory stage, went to the merits of the main case. Once he had dealt with the issue of the injunction, the matter should have rested at that stage. The remaining issues were to be dealt with on merit as proved by the evidence to be provided at trial by the parties. This is what we said in the case of Dr. Billingsley vs. Mundi (3):- Unless the parties have specifically and clearly applied for the consent judgment, which they are at liberty to apply for at any stage of an action, the court should only deal with the particular application before it. We further said in the case of Turnkey Properties vs. Lusaka W. Dev. Company and 2 Others (4) thus: It is improper for a court hearing an interlocutory application to make comments which may have the effect of pre-emptying the decision of the issues which are to be decided on the merits at the trial. J9 We have no doubt that the directives made in this case by the lower court were tantamount to pre-determining the issues that were to be decided on merit at the trial. We are therefore, not going to comment further on those orders suffice for us to say they are set aside and the matter be allowed to proceed to trial. The appeal lacks merit and it is dismissed. The successful party in the main action shall have his costs. CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE