Kamu Sawmill Enterprises Ltd and Anor v Development Bank of Zambia (Appeal 8 of 2000) [2001] ZMSC 103 (12 April 2001)

APPEAL NO. 8/2000 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: KAMU SAWMILL ENTERPRISES LTD ADAM CHITANDA TEMBO MULUMA 1st Appellant 2nd Appellant And DEVELOPMENT BANK OF ZAMBIA Respondent CORAM: Chirwa, Late Muzyamba and Lewanika, JJs at Ndola on 7th March 2000 and 12th April 2001 For the Appellants: Mr. G. Kunda, George Kunda & Co. For the Respondent: Mrs. M. C. Kayuma, Legal Counsel, DBZ JUDGMENT Chirwa, J. S. delivered the judgment of the Court: - This appeal was heard by a panel which included our deceased brother, Justice Muzyamba, and this judgment should therefore be read as judgment by majority. This is an appeal against the refusal by the High Court to grant an interlocutory injunction restraining the respondent from enforcing its rights under a mortgage created between the appellants and the respondent in respect of Plot No. 839 Kitwe; seizing or taking possession of the Is1 respondents property composed of machinery, equipment and motor vehicles; restraining the respondent from enforcing a joint and several guarantee executed by the 2nd respondent and one Ackson N. K. Kambidima (deceased) for the payment of the principal, interest and other monies due under the loan agreement and from appointing a receiver to take control of the assets and undertaking of the appellant company and to manage the first appellant company as a going concern under the mortgage, specific charge and loan agreement. The appellants have other claims against the respondent but this appeal is only in respect of the refusal to grant an interlocutory injunction. Other claims are still pending. The principles under which injunctions are granted are well known and among them are that the applicant would suffer irreparable damage that money cannot atone the loss; that the balance of convenience lies in favour of the applicant and that if injunction is not granted there would be waste of the property or right. We have looked at the affidavits in support and in opposition to the issue of the interlocutory injunction. There is no doubt from these affidavits that the respondent advanced some money to the 1st appellant and the loans and mortgage were guaranteed by the 2nd appellant. It is also clear from the affidavits that the appellants defaulted in the repayment of these loans and that the respondent appointed a receiver who moved on to the property started managing the 1st appellant and that this was done with the view of protecting its rights and interest under the loan agreement and mortgage and as provided by agreement and mortgage. We cannot therefore fault the learned trial judge in refusing to grant the interlocutory injunction. We therefore dismiss this appeal. Let the parties rights be determined in the main trial. Costs of this appeal to the respondent to be taxed in default of agreement. D. K. CHIRWA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE