Peter Mulenga (Managing director of Shalom Christian Academy) v Namonje (HP 1399 of 2019) [2020] ZMHC 286 (13 December 2020)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil jurisdiction) BETWEEN: PETER MULENGA (Managing director of Shalom Christian Academy) AND MERCY NAMONJE - _!?------'\ rt- 3 DEC 2\9 -ft DEFENDANT Before the Hon. Mr. Justice M. D. Bowa in Open court on 13th of December For the Plaintiff, in Person For the 1st Defendant: Mr. H. M Munsanje of H Munsanje and Company RULING Cases referred to: / 1. Communications Authority vs. Vodacom Ltd ZR 2009 at P196 2. American Cynamid Company vs. Ethicon (1975) AC 396 3. Hilary Bernard Mukosa vs. Michael Ronaidson (1993-1994) Z. R. 26 4. Harton Ndove vs. Zambia Educational Company (1980) ZR 184 5. Shell & BP Limited vs. Conidaris & Others (19 75) ZR 174 Ri (cid:9) 7. Transparency International Zambia v Chanda Chimba III and another (2011) 3 ZR 8. ZIMCO properties v LAPCO Limited (1988-89) ZR 92 (SC) Other works referred to 1. Commercial Litiqation: Pre-emptive Remedies lain S. Goldrein et-al. London Sweet and Maxwell (199 7) This is the Plaintiffs application for an injunction filed into court on the 30th of August 2019. The affidavit in support of even date was deposed to by Peter Mulenga the Plaintiff herein. He deposed that he is a bishop and managing director of Shalom Christian School. He went on to aver that the Plaintiff and Defendant entered into a verbal lease agreement on or about the 30th August 2003 to rent the Defendant's premises for the purpose of operating a school. The said verbal lease agreement was for a monthly payment of K700 and currently adjusted to K2500 per month. The court learnt that between 2007 and 2018 the Plaintiff felt the need to build 3 rooms due to operational demands. One of the rooms was to be a tuck shop and an additional classroom. Verbal permission was sought from the Defendant for the construction of the rooms. R2 It was deposed further that in or around July 2019, the Defendant made demands for the payment of rentals for the additional rooms built failure to which she was to evict the Plaintiff. The Plaintiff however refused to pay for the rentals as the additional rooms were built using his own resources. He opted to close the shops and continued operating the school. The Defendant was reportedly not pleased with this. Due to heightened misunderstanding between the Parties, the Defendant started accusing the Plaintiff of not being consistent in rental payments and wrote an eviction letter in which only 2 weeks' notice was given. She further demanded that the arrears be cleared before the month end of July 2019. The letter was produced and marked "PM 1." The Plaintiff averred further that he had cleared the rental arrears and the only unpaid amount was for the month of August 2019. It was deposed further that the Plaintiff has been running the school for the past 16 years catering for the surrounding community and building trust between the school and the parents over the years. Therefore, evicting the Plaintiff from the premises R3 will destabilize the pupils who will have to look for school places without notice to the parents. In addition that the school, pupils and personnel will suffer dire consequences as a result of an abrupt eviction especially the grade 7 classes that were due to sit for examinations. The Plaintiff thus seeks an order for an injunction to allow him to look for new premises and to get a refund for the additional rooms built. The Defendant opposed the application by affidavit in opposition dated 12th September 2019. She admitted entering into an oral periodic tenancy with the Plaintiff who had introduced himself as a reverend about August 2003. The tenancy was in respect of property known as Block D Plot 130 Mtendere in Lusaka at the monthly rent of K700.00 and later adjusted to K2500 as at April 2019. It was further deposed that the leased premises was to be used as a residence and not for purposes of operating a school as alleged in the affidavit in support. The Defendant informed the court that the Plaintiff held the premises from month to month and sometime in 2006, she discovered that the Plaintiff had converted the premises into a R4 school without either consulting her or obtaining her consent. She thus orally informed the Plaintiff that he was in breach of the lease agreement's covenants but he did not heed the caution. Further that around February 2018, she discovered that the Plaintiff had built additional illegal structures on the property and was subletting portions of it to some traders dealing in mobile phone services without her permission. The Defendant denied ever demanding for payment of rentals for the alleged additional rooms which as far as she was concerned were illegal structures. She however agreed that on the 19th of August 2019 she wrote the Plaintiff a letter terminating the periodic tenancy citing several breaches but not limited to those stated in the letter. It was contended further that prior to the letter terminating the lease the Defendant had a meeting with the Plaintiff at her home on the 22nd of June 20 19. At that meeting, she informed the Plaintiff of the numerous breaches he had committed in addition to the rent arrears which at the time stood in the sum of K700.00 for March 2016, K2500.00 for May and K2500.00 for June 2015, all totaling R5 K9200.00. Further that after the 22nd June meeting the Plaintiff paid the sum of K2500.00 on 12th July 2019 and another K5000.00 on 12th August 2019 towards the rental arrears. No commitment was made to make good on the other breaches. The Defendant contended further that the Plaintiff has caused her property to be so run down and dilapidated it has become unfit for human habitation. Attached was a quotation from Bernada Construction Company exhibited "MW 4 (a)" to "MW4 (d)" indicating K57,550.00 as the money required to repair the premises. Finally, it was deposed that the Defendant believed based on advice from counsel, that this was not a proper case for the grant of an injunction. In an affidavit in reply dated 17th September 2019 the Plaintiff averred that it was untrue that he converted the leased property into a school without the consent of the Defendant. That the premises has never been used as a residential house since inception. He further denied that the structures were built illegally. This was done by verbal agreement with the Defendant who is now demanding that the Plaintiff begin to pay for them. R6 He averred that the named Airtel booths are not in the Defendant's premises. In spite of this, the Defendant who now claims ownership has received payment for the month of September. The Plaintiff further denied the Defendant's assertion that he was in breach of the lease agreement. He stated as untrue the suggestion that he owed K8000.00 in June. He asserted that money was collected sometime in January 2019 by one Dick Masebo the Defendant's son and no receipt was issued. The said Masebo also collected the rental for February 2019. In March 2019, another one of the Defendant's sons was sent to collect the rental for April 2019. The Plaintiff averred that he subsequently cleared the outstanding arrears at a meeting held with the Defendant in June 2019. It was further agreed that he would do some maintenance to the premises and submit the receipts for a refund. He contended however, that sometime in August 2019 after schools closed the Defendant, without his knowledge went to the school and scrapped the PVC tiles and broke window panes. She then took photos of the damage with malicious intent. R7 He denied being responsible for the dilapidated status of the house contending that when he first occupied it there were 3 Zimbabwean families already living there. That the septic tanks were full and the windows were broken. The school therefore kept replacing the windows. He added that the house in question has been in existence for over 40 years and the Defendant has never replaced anything in the 16 years that his school has operated from there. He contended that this was not a proper case in which an injunction should be granted as the school is well established with over 10 full time workers whose livelihood depends on the school. He added that he is from the clergy with no income to depend on aside from the school which he uses to look after his 5 children. Further that there will be a class writing exams but the Defendant had spread rumors indicating that the school was closed thereby causing insecurity to parents. In addition that two of the teachers residing on the rented property were chased by the Defendant. All of this has resulted in the operations of the school being severely disturbed. R8 At the hearing held on the 3rd of October 2019 the Plaintiff relied on his affidavit in support and in reply on record. He stressed that the structures mentioned in the affidavit in opposition were not illegal but rather booths that are outside the Defendant's property. He prayed that the injunction be granted accordingly. In opposing the application, learned counsel for the Defendant Mr. Munsanje submitted that the 2 main issues that the court should consider when faced with injunction applications as per decision in Communications Authority vs. Vodacom', are irreparable injury and the right to relief. He submitted that the Plaintiff had not shown what irreparable injury he stood to suffer if the interim injunction is not granted nor had he shown any legal right to the relief that he is seeking. Mr. Munsanje submitted further that the Plaintiff did not dispute that the verbal agreement for the lease of the property was periodic and that he has been in arrears of rent. Counsel argued further that the Defendant in her affidavit in opposition has demonstrated the damage that has been occasioned to the property by the Plaintiff exhibited "NMA4," "NM4C," "NM5A to "N5U", in spite of the Plaintiffs denial of responsibility. Counsel R9 added that an injunction is an equitable remedy and it was the Defendant's contention that the Plaintiff had not come to equity with clean hands. He concluded that this was therefore not a proper case that the court can be persuaded to exercise its discretion to grant the relief sought which in any event, can even be atoned for in damages. In response, The Plaintiff argued that the affidavit in opposition acknowledges that he had in fact cleared all his arrears. There was therefore no question of approaching the equitable relief with soiled hands arising in this case. Further that the Defendant's action of closing the school has occasioned irreparable injury. He argued that the numbers of children enrolled in the school has considerably reduced and lamented that it had taken the Plaintiff a number of years to establish the school. He insisted that the Plaintiff maliciously damaged the property herself. He argued further that the affidavit in support actually demonstrates that the school was in good condition and subject to regular inspection. On the other hand that there was hardly any RiO maintenance done by the Defendant. He reiterated his prayer for the grant of the injunction. I have carefully considered the application before me. In the case of American Cynamid Company vs. Et hi con2 Lord Diplock set out the test that a court should apply when exercising its discretion on whether or not to grant an injunction. Notably, that the court should address the question whether or not on the facts the plaintiff has raised a serious question to be determined at trial; whether damages would be an adequate remedy and the Defendant is in a position to pay; and lastly where the balance of convenience lies. The first test I must apply therefore is to ascertain if there is a serious question to be tried and a clear right of relief established on the facts. In applying this test, the Supreme Court in the case of Hilary Bernard Mikosa vs. Michael Ranaldson3 went further and held that: "An injunction would only be granted to a Plaintiff who established that he had a good and arguable claim to the right which he sought to protect" Ru Further in the case of Harton Ndove vs. Zambia Educational Company4 Chirwa J. held that: "Before granting an interlocutory injunction, it must be shown that there is a serious dispute between the parties and the Plaintiff musts show on the material before court that he has any real prospect of succeeding at trial." Turning to the disclosed facts in the affidavits, the Plaintiff alleges termination of his lease without notice in breach of the verbal lease agreement between the parties. The Defendant on the other hand contends the agreement was not in compliance with the requirements under the Lands and Deeds Registry Act. She further cites several breaches ranging from a failure to pay the rentals on time leading to an accumulation of arrears to a failure to a keep the premises in a good state of repair. She asserts further that the Plaintiff converted the leased premises into a school and built illegal structures which he sublet without her consent thus justifying the termination of the lease. The Plaintiff denies these claims. The question of whether the lease satisfied the legal requirements under the cited Act, what was agreed and who was in breach of the R12 agreement and associated covenants point to a serious question fit for determination at trial. Without delving into the merits of the case I find that prima facie, the Plaintiff has demonstrated a clear right to relief granted his claim that he was operating the premises as a school and the Defendant had not given the requisite notice for termination of the lease. However, the matter does not end there. The next question the court must interrogate is whether or not damages would be an adequate remedy in the event that the injunction is not granted and the Plaintiff is successful at trial. Put differently, the Applicant must satisfy the court that an injunction is necessary to protect him from irreparable injury which cannot easily be atoned by damages. In the case of Shell & BP Limited vs. Conidaris & Others5 the court defined irreparable injury to mean: "Injury which is substantial and cannot be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired." In Communications Authority vs. Vodacom (Supra) the Supreme Court suggested that in fact the issue of irreparable injury is the "first and primary element". The court went on to hold that: R13 "An injunction will not be granted where damages would be an alternative adequate remedy to the injury complained of if the applicant succeeds in the main action" The learned authors of Commercial Litigation: Pre-emptive Remedies conclude that if an Applicant can be adequately compensated by an award of damages and the Respondent would be in a position to pay the damages, then an injunction should not be granted irrespective of how strong the Applicants case is. The Plaintiff asserts that damages would be inadequate because his school has built a reputation with the local community over a period of 16 years that it has leased the property in issue. Further that there are students who are in exam classes that are likely to be affected and teachers employed by the school who depend on their livelihood on the school. In fact, that the Plaintiff himself being a member of the clergy and father of five depends on the school as he does not earn any other income In Transparency International Zambia v Chanda Chimba HI and ZNBC7 Matibini J held that it is essential for an applicant for an interim injunction to demonstrate that he would suffer R14 substantial prejudice or hardship in material respect if he were confined to other remedies such as damages. I am not satisfied that the Plaintiff has demonstrated that damages cannot atone for the injury or hardship contemplated. The arguments advanced based on the Plaintiff's faith and calling are more an appeal to emotion than legal principle. I find that the anticipated loss can be adequately compensated in damages and would not be difficult to compute in the event of the Plaintiff's success at trial. I further have been given no reason to believe the Defendant will not have the ability to pay. In ZIMCO properties v LAPCO Limited 7, Gardner J S delivering the judgment of the Supreme Court observed that: "We must make it clear that the question of balance of convenience between the parties only arises if the harm done will be irreparable and damages will not suffice to recompense the plaintiff for any harm which may be suffered as a result of the actions of the defendant which it is sought to restrain. It is therefore inappropriate in this case to discuss the question of balance of convenience." Having found that damages would be an adequate remedy in this case, I will not inquire into the question of balance of convenience R15 as guided above and therefore decline to award the injunction sought with costs to the Defendant to be taxed in default of agreement. Leave to appeal is granted. Dated at Lusaka the (cid:9) 1 (cid:9) of (cid:9) 2019. JUDGE. R16