Petrolink Limited v Sydney Chisanga and Anor (NO.263/2022) [2024] ZMCA 227 (12 April 2024)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO.263/2022 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN PETROLINK LIMITEri 2 APR 2024 APPELLANT AND SYDNEY CHISANGA 1 ST RESPONDENT ALPHA ENTERPRISE LTD 2ND RESPONDENT CORAM: Ngulube, Muzenga and Chembe, JJA On 27th March 2024 and 12th April 2024 For the Appellant For the Respondent . . . . Mr. T. M. Chabu - Messrs Terrence Chabu & Co. Ms. N. Mulenga - Messrs Isaac & Partners JUDGMENT CHEMBE, JA delivered the judgment of the Court Cases referred to: 1. Afritec Asset Management Company Limited and another v The Gynae and Antenatal Clinic Limited and another (Selected Judgment No. 11 of 2019) 2. Vangelatos and Vangelatos v Metro Investments Limited and Others (Selected Judgment No. 35 of 2016) 3. Lillian Chuma Mwanapapa and Patel Chibba Jagdish (appeal no. 185/2016 4. July Danobo T/A Juldan Motors v Chimsoro Farms Limited (2009) ZR 148 s. NFC Mining PLC v Techpro Zambia Limited (2009) ZR 236 6. Acces Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture Appeal No. 71 of 2014 7. Charles Mushitu v Swift Capital Limited CAZ Appeal No. 110/2022 1.0 INTRODUCTION 1. 1 This Notice of motion emanates from a ruling of M ulanda J dated 14th June 2022 in which she dismissed the application for an order of interlocatory injunction. 2.0 BRIEF BACKGROUND 2.1 The Appellant, who is the plaintiff in the Court below, commenced an action against the Respondents in which it sought a declaration the decision to terminate the tenancy agreement relating to some filling stations was unlawful and was made in bad faith. The Appellant also sought an order of injunction to rest rain the Respondent from interfering with its business premises. 2 .2 The Appellant had earlier successfully challenged the termination of the tenancy agreement under cause No. 2020/HK/224 in which it was held that the 2 nd Respondent had not complied with the Landlord and Tenant (Business Premises) Act, chapter 193 of the laws of Zambia. 2.3 Following the judgment from the Kitwe High Court, the Respondents issued a fresh notice to terminate the tenancy agreement in accordance with the Act and sought to evict the Appellant. 2.4 After hearing the application for an order of interlocutory injunction, the learned Judge in the Court below dismissed the application on the ground that the Appellant had failed to demonstrate that there were triable issues in the case and that the action had no real prospects of success. 2 .5 Aggrieved with the Ruling of the Court below, the Appellant launched the current appeal advancing the following grounds; 1. The Judge below erred in law and fact when she held that the Appellant had failed to demonstrate that there were triable i n the case. 2. The Judge below erred in law and fact when she h e ld t hat t he Appellant had failed to show that it had real prospec ts success. 3. The Judge below erred in law and fact when she held that t h e Appellant had accrued rental arrears in the sum of K269, 093. 71 as at 31 st March 2021. 4. The Judge below erred in law and fact by dismissing the application an interlocutory injunction and by discharging t he interim order of injunction which was granted exparte to the Appellant on 30t h March 2021. 3.0 THE MOTION 3.1 Before the appeal was heard , the R espondents filed a notice of Motion to raise a preliminary obj ection on a point law pursuant to Or der VII Ru le 1, Order XIII Rule (5) ( 1) and Order 1 Rule 1 of the Court of appeal Rules on the following ground s: 1. Whether this court has jurisdiction t o hear and determine the appeal against the refusal of a n interlocutory injunction in view of the holding by the Supreme Court in the case of Afritec Asset Management Company Limited, CPD Prop e rties Limited v The Gynae and Antenatal Clinic Limited & Kenneth Muuka (Selected Judgment No . 11 of 2019) And that ifit is found that this Honourable Court does not have the Jurisdiction to hear and determine the matter, then the 1 s t and 2 nd Respondents humbly pray that this action be dismissed with costs to the Respondents; OR 2. Alternatively, if this Honourable Court finds t hat this appeal is properly before it, then the Respondents pray that this appeal be dismissed with costs on the basis that that the record of appeal filed in these proceedings by the Appellant is incurably defective for the following reasons: a) That the Record of Appeal does not contain t he complete arguments and submissions made in support and also in opposition to t he interlocutory injunction application made in t he court below as the 1 s t and 2 nd Respondents' skeleton arguments filed on 6 th April 2021 a re not in the Record of Appeal; and/or b) That the record of proceedings/transcript filed in this appeal is incomplete as it does not contain the notes of the hearing that took place on 30th June 2021 which hearing is material to the determination of this appeal. 3.2 In the argu ments in support of the mot ion , the Responden ts relied on the case of Afritec Asset Management Company Limited and another v The Gynae and Antenatal Clinic Limited and another 1 (Selected Judgment No. 11 of 2019) (supra) where the Supreme Cou rt guided that an appeal does not lie following th e dismissal of an application for an inter locu tory inju nction but the application should be renewed before a single jud ge of the appellate court. 3.3 We were u rged to follow the a b ove authority and find that the app eal was not p roperly before us . The Respondents also referred to the case of Vangelatos and Vangelatos v Metro Investments Limited and Others2 where it was held that a cou rt cannot exercise a jurisdiction which it does not possess . 3.4 In relation to t he secon d ground, th e Respondents submitted that the Court of Appeal Rules had stringent requirements on the con ten t s of a r ecor d of appeal. Refer ence was made to Order X Rule 9 (5) U) of Court of Appeal Rules which provides for the inclus ion of notes of the hearing at first instance. It was s u b mitted th at t he Appellant had failed to include the notes of t h e h earing before the Registr ar and the skeleton arguments thereby rend ering the record of appeal incu rab ly defective. 3.5 In support of the a b ove argument, we were referred to th e cases of Lillian Chuma Mwanapapa and Patel Chibba Jagdish3 , July Danobo T / A Juldan Motors v Chimsoro Farms Limited4 , NFC Mining PLC v Tech pro Zambia Limited5 and Acces Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture6 • 3.6 Based on the above decisions, the Respondents contended that the Record of Appeal was incompetent and the breaches were fatal to the appeal. We were urged to dismiss the appeal with costs. 4.0 THE HEARING 4. 1 The Appellant did n ot file an affidavit in opposition or skeleton arguments. At the hearing, Counsel for the Appellant was granted. leave to address the court viva voce. He submitted in relation to the first ground of objection that the appeal was not only against the refusal of the application for an order of injunction but also against the fact that the Judge in the Court below addressed the merits of the matter in her ruling. 4.2 The Respondents relied entirely on their written arguments . 5.0 CONSIDERATION AND DECISION 5 .1 We h ave carefully considered the motion, the affidavit evidence and the a r gumen ts for and against the motion . 5.2 Th e Ruling appealed against is one where the Judge in the court below d eclined to grant th e Appellant's application for an order of inj unction . Th e Supreme Court in the case of Afritec Asse t Management Company Limited & another v The Gynae and Antenatal Clinic Limited and another (supra) guided that where an a p plication for an order of in terlocutory injunction is d eclined , the a p p licant's r ecourse lies in r enewing the application before a single J u dge of t h e Cour t of Appeal and not in lau nching an a p peal. 5 .3 In th e case of Charles Mushitu v Swift Capital Limited7 we had occasion to the issue of where such applications lie. In that case we h eld that su ch applications which are interlocutory in n atu re, must be m ade before a single as a renewed application and n ot lau nch ed as appeals. 5.4 We th er efore, u phold the objection 1n ground one that the appeal is n ot properly before us and we lack the jurisdiction to entertain and determine it. In view of this the a lternative ground of objection has been rendered otiose. 6.0 CONCLUSION 6.1 Having found that t he appeal to be incompetently before us , we dismiss it. Costs s h a ll abide the outcome in the court below. ~ P. C . M . NGULUBE COURT OF APPEAL JUDGE 1 2 APR 2024 COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE Y. CHEMBE 9