Sharon Bulalo v Patrick Chowa and Ors (2014/HP/327) [2019] ZMHC 36 (6 August 2019)

IN THE HIGH COURT FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) 2014/HP /327 In the matter of In the matter of An Application For Summary Possession of Land Pursuant to Order 113 of the Rules of the Supreme Court of England, 1999 Edition (White Book), as read with S. I. No. 944 of 1970 Property No. 10327 situate in the City of Ndola in the Copperbelt Province of the R epublic of Zambia COURT OF P-INCIPAL 0 i AUG 2019 ltEGIST"V BETWEEN: SHARON M BULAL AND PATRICK CHOWA ALAN GONDWE NDOLA CITY COUNCIL ATTORNEY GENERAL PLAINTIFF 1 ST DEFENDANT 2ND DEFENDANT 3 RD DEFENDANT 4 TH DEFENDANT CORAM: HONORABLE JUSTICE MR . MWILA CHITABO, SC For the Plaintiff Ms. C. Chibawe of Messrs Ferd Jere & Company For the 1st Defendant: Mr. W. Mhanga with Mr. C. Mweemba of Messrs AKM Legal Practitioners Rl For the 3 rd Defendant: Mr. R . Mwiinga (In House Counsel for Ndola City Council For the 1s t Defendant: NIA RULING UPON INTERPARTE HEARING OF INJUNCTION APPLICATION Legislation referred to: 1. High Court Rules, Chapter 27 of the Laws of Zambia 2 . Supreme Court Rules of England, 1999 Edition, White Book Cases referred to: 1. American Cynamid v. Ethicon (1975) AC 395 2. Communications authority v. Vodacom (2009) ZR 196 3 . Towe la Akapelwa & others v. Josiah Mubukwanu Litiya Nyimbo (Appeal No. 004/2015) 4. Ubuchinga Investments Limited v. Teklemichael Mestab & Semhar Transport SCZ No. 25 of 2014 5. Lyford Monde v. Chibwe (sued in his capacity as Secretary General of United Party for National Development (2016) 1 ZR 6. Shell BP Zambia Limited v. Conidaris (1975) ZR 174 7. Ahmed Abad v. Turning Metals Ltd (1987) ZR 86 8. Turnkey Properties v. Lusaka West Development Company Limited ( 1 984) ZR 1 05 9. Zambia Wild Life Authority v. Banda (SCZ No. 17 of 2001) 10. Limpic v. Rachael Mawere and others Appeal No. 121 of 2006 R2 11. Stripes Zambia Limited v. Cinderella Investments Limited and Sano Industries Limited, Appeal No. 200/ 2012 12. Handling Xing Xing v. Zamcapital Enterprises Limited (2010) 1 ZR30 13. Honorious Maurice Chilufya v. Kang'undu (1919) ZR 166 14. Aggregates Limited v. Godfrey Nambayo Thomson Appeal No. 136 of 2014 This is an interparte summons for an order of Interim Injunction pursuant to Order 27 Rule 4 of the High Court Rules 1, restraining the 1st and 2 nd Defendants whether by themselves, servants and or agents from encroaching, trespassing or undertaking any further developments on property number 10327, Mitengo, Ndola in the Copperbelt province of the Republic of Zambia. The summons was supported by an affidavit deposed to by one Sharon Bulalo the Applicant herein. The gist of which is that she commenced an action against the 1st Def e nd ant seeking inter alia immediate order for possession of the a lluded to piece of land. In her supporting affidavit in support of the originating summons, she had deposed that she is the legal registered owner of Stand No. 10327, Ndola. That she is a holder of certificate of Title No. 1000633 as shown and marked as "SBl". That sometime in 20 1 7, she discovered that the Respondent was trespassing on her land and when confronted she stopped but later proceeded with construction and she has since built a house where people are staying. R3 That the 1st Defendant has continued developing the said piece of property regardless as shown and marked by exhibit "UMW2". The su mmons were supported by submissions. The essence of which is that the Plaintiff is a holder of a certificate of Title relating to the same land. That the 1st Defendant a lleges that he purchased the same land and later sold it to the 2 n d Defendant. That both the 1st and 2 nd Defendants have no title for the said land. Learned Counsel made reference to the case of American Cynamid v . Ethicon1 where the Court guided as to the consideration as to when to grant or deny an injunction namely:- (i) Whether or not the facts the plaintiff has raised a senous issue to be determined at trial; (ii) Whether damages would be an adequate remedy and the defendant is in a position to pay; and lastly (iii) Where the balance of convenience lies. Reference was also made to case of Communications Authority v. Vodacom Zambia Limited2 where it was held that the two main issues to be considered were "the clear right to relief or question to trial and irreparable damage)). As to what the d efinition of irreparable damage, reference was made to the case of Shell and BP Zambia Limited v. Conidaris and others3 where it was said: - "in;ury which is substantial and can never be adequately remedied or atoned by damages)) R4 It was argued, injunction denied the plaintiff will suffer irreparable damage. That as holder of a certificate of Title she will suffer deprivation of her piece of land whilst the Defendants will continue to reap benefits. The 1st Defendant Patrick Chowa countered the application and filed an opposing affid avit. The gravamen of which was that he denies doing any construction. That it is t h e 2 nd Defendant who has been developing the land following purchase of the same from him. It was deposed that in fact even the plaintiffs certificate of Title is being contested. He thus asked the Court to deny the injunction. Allan Gondwe the 2 nd Defendant filed an opposing affidavit too. He admitted that he is th e one making the developments on the land in dispute having bought it from the 1st Defendant. He maintained t h at the Plaintiff is aware about the developments and th e 2 nd Respondent (Defendant) intends to challenge the legality of the Plaintiffs certificate of Title. Reference was made to an affidavit in support of joinder application deposed to by one Willis Mubanga, SC. The Court was finally invited to deny the injunction. The 1st and 2 n d Defend a nts filed in their submissions in opposition to the grant of injunction. The gravamen of which was that:- RS ( 1) The principles to grant of injunction espoused in the case Towela Akapelwa and others v. Josiah Mubukwanu Litiya Nyimbo3 . Reference was a lso made to the case of Ubuchinga Investments Limited v. Teklemichael Menstab & Semhar Transport:4 . That "the principles set in American Cynamid case were not meant to create rigid rules for the court but to act as mere guidelines for ensuring that the discretionary powers are exercised in the fairest and most reasonable manner to achieve the ends of justice". (2) That in junction seeks to prevent that which has already happened It was submitted that th e dispute is about determining ownership of the land, th erefore this injunction is not merited to prevent that which has already happened. Reference was m ade to the case of L!J.ford Monde v. Chibwe (sued in his capacity as Secretary General of United Party for National Development)5 where it was held as this: - "A restrictive iniunction is one which orders a party from doing specifjed acts. It is the type of iniunction one should apply for when he wants to preserve or maintain a particular situation pending trial. It is granted to restrain a threatened wrong as opposed to one that has actually been committed" R6 (3) Right to relief Counsel then referred to the case of Shell and BP Zambia Limited v. Conidaris and others6 where it was h eld that:- "A court will not generally grant an interlocutory injunction unless the right to relief is clear and unless the injunction is necessary to protect the plaintiff from irreparable injury, mere inconvenience is not enough. Irreparable in;ury means inzjry that is substantial and cannot be adequately remedied or atoned in damages" (4) Injunction likely to create conditions more favorable to the Plaintiff (Status quo In support of this proposition r eference was made to the case of Ahmed Abad v. Turning Metals Ltd7 where Ngulube DCJ (as he then was) had this to say:- "an interlocutory injunction is appropriate for the preservation or restoration of a particular situation pending trial, but it cannot, in our considered view, be regarded as a device by which the applicant can attain or create new conditions favorable only to himself, which tip the balance of the contending interests in such a way that he is able, or more likely to influence the final outcome by bringing about an alteration to the prevailing situation which may weaken the opponent's case and s trengthen his own" R7 Thus, Counsel went one, citing the case of Zambia Wildlife Authority v. Banda9 :- "an in;unction should not be regarded as a device by which an Applicant can attain or create new conditions favorable only to him" (5) Unjust Enrichment Learned Counsel then referred to the case of Limpic v. Rachael Mawere and others10 where the apex court observed:- "but before we leave this matter, we wish to say that from the pictures which were shown in the motion that was in the appeal, the appellant had expended a lot of money on the property in question. To allow the Respondents to talce the property in question with the massive improvements made by the Appellant would be un;ust enrichment of the Respondents. Equity will not allow that. We therefore order that the improvement be assessed by the Deputy Registrar and the Appellants be paid by the Respondents the worth of the improvements" It was therefore submitted that the Defendant having put up habitable structures and an injunction being a discretionary remedy, and the 2 n d Defendant h aving bought the property for value without notice from the 1st Defendant; the injunction ought not to b e sustained as the Plaintiff had not come to equity with clean hands. R8 Reliance was p laced on the case of Stripes Zambia Limited v. Cinderella Investments Limited and Sana Industries Limited11 . I am indebted on the h elpful research by the Advocates for both parties. Confronted with the injunction application, I visited the case of Towela Akapelwa and 3 others v. Josiah Akapelwa Litiya Nyumbu3 a Judgment of the court of last resort where Malila, JS (as h e then was) authoritatively pronounced himself in th e following style and fashion:- ((Before we conclude, we wish to comment on the law relating to injunctions generally. The law with regard to interlocutory injunctions in this country constitutes one of the most difficult sections of the law. Difficult not because the law is abstruse, but because the ascertained principles for granting injunction must be sub;ect at all times to a rather amorphous combination of facts which are perpetually different in every case. A good deal of judicial discretion is required and we think no one now imagines that an order of injunction would be granted as a matter of course. Judicial discretion is itself a power which inheres in a Judge. It is an armour which a Judge should employ judiciously to arrive at a ;ust decision. The same should not be left to the whims and caprices of a party to the action'' The facts of the case as discerned from the pleadings and various affidavits are that: R9 (l)That the Plaintiff has a certificate of Title in respect of the land subject to this legal context. (2)The 2 nd Defendant alleges that he bought the land from the 1st Defendant. (3)That both the 1st and 2 nd Defendants do not have title to the land. (4)That the Defendants contest or intend to contest how the Plaintiff got the certificate of Title. (5)The 2 nd Defendant has built habitable structures on the land which he alleges he bought without notice of any adverse claim for value. (6)The Plaintiff alleges that she had confronted the 1st Defendant to stop trespassing but encroachment has continued and construction continued. (7)It is obvious and it is common cause that a dispute has arisen on the said piece of land. Before I deal with the substantive application, I wish to comment on the affidavit for joinder which was deposed to by one Willies Mubanga, State Counsel, wherein he deposed to contentious matters and alluded to exhibits therein. The said affidavit is relevant as it brings to the fore the positions taken by the 1st and 2 nd Defendants in this matter. Doyle, C. J (as he then was) had occasion to pronounce himself on the subject matter. He instructively and authoritatively held in holding No. (iii) as follows:- RlO «The increasing practice amongst lawyers conducting cases of introducing evidence by filing affidavits containing hearsay evidence is not merely ineffective but highly undesirable, particularly where matters are contentious}} Forty five (45) years later it would appear the instruction by the apex Court continues to be unheeded. It is in the interest of justice that instructions given by superior courts are heeded by lawyers. I now turn to the guidelines in granting or denying injunctions. I adopt the catalogue of Dr. Matibini, J (as he then was) in the case of Handling X i ng Xing v . Zamcapital Enterprises Limited12} Holding (1) clear right of relief /cause of action. In the case in casu, the Plaintiff has featured a certificate of Title. It is trite law that a certificate of Title is conclusive evidence of ownership against anyone in the world. It is valid until the same is revoked or cancelled on account of fraud or mistake. The case of Honorious Maurice Chilufya v. Kelvin Kang'undi13 is instructive. Thus a certificate of title holder ought to enjoy quiet possession of his property until such time that the title is cancelled. At this stage the cause of action and right to relief is evidently clear. Rll Holding No. 2 That injunction denied the Plaintiff will suffer irreparable dama ge not m ere inconvenien ce and that su ch damage cannot be atoned by monetary da mages or comp ensation It is trite law that la nd is special commodity and strict proof of irrepara ble damage is not a requirem ent. The ration a le is that land is unique; it is a special right. In the case in casu, the Pla intiff has a certificate of title. In m y view the second guideline is also s a tis fied . Holding No. 3 Prospects of succeeding At this stage the affidavit eviden ce is that th e re is a dispute on the land. It is not the function of this Court at this stage to resolve conflicting affidavit eviden ce or averments . Tha t is a m atter to be resolved at trial. This guideline is evenly balanced. Holding No. 4 Sta tus quo This is a critical guideline . I have already a lluded in on e of the preceding p aragraphs that there is a dispute over the piece of land under contest . I draw s trength from case of th e court of final resort of Aggregates Limited v. Geoffrey Nambaya Thamsan1 4 , at page JB where the court observed: - "In our considered view, the upshot of the foregoing facts is that the dispute over the proper boundaries of adiacent land owned by the two title holders presents a serious question to be tried w ithin the principles of the American Cynamid v. Eth icon3. In R12 the result we are of the considered position that the balance of convenience lay in maintaining the status quo" On the basis of this authority, I will sustain the interim injunction granted on 28th February, 2019. There may be a need to resolve all relevant issues raised by the parties which have not been addressed 1n the preceding paragraphs. ( 1) That in fact seeks to prevent that which has already happened I have already observed that the conflicting position of the parties is that the Plaintiff alleges that the construction was continuing at the time the suit was launched, whilst the 2 nd Defendant alleges that houses have been constructed and occupied. It is therefore necessary to maintain a status quo. (2) That injunction is likely to create conditions more favorable to the Plain tiff It is common cause that the Plaintiff is a certificate of title holder. On the oth er hand the 2 n d Defendant has put up structures on the Plaintiffs title land with a llegations that construction was 1n progress at t ime of launching the interim injunction application. The justice of the case is that the status quo be maintained pending trial. R13 (3) Unjust enrichment The 2 nd Defendant heavily relied on an observation of the Supreme Court in the case of Limpic v. Rachael Mawere and others, where the apex Court made reference to the doctrine of unjust enrichment and had ordered the Deputy Registrar to assess the value of the unexhausted improvements made by the Appellants on the Respondents property. What Learned Counsel suppressed was that that order in a subsequent motion by a full bench of 9 Judges vacated that order observing that it had been made per incuriam. This was on the backdrop that in that case there was evidence that the property had been fraudulently purchased as found by the High Court. The Supreme Court was thus not addressing an injunction contest. Authorities must be accurately cited within context so as not to mischaracterize the authority thus have the effect of misleading the Court. (4) That the Plaintiff had not come to Court with clean hands and as such ought not to be granted an equitable remedy It is indeed trite that "he who goes to equity must do so with clean hands". The genesis of this injunction application is that the mode of commencement was originally by mode of summary procedure for R14 possession launched under Order 113 of the Rules of the Supreme Court ofEnqland2 . In the supporting affidavit, the Plaintiff had a lleged that he had accosted the 1st Respondent on alleged encroachment who initially stopped his activities but later continued and put up structures. The conflicting opposing affidavit revealed that it was in fact the 2 nd Defendant who was con structing and he admitted that. His defence was that he bough t the property from the 1st Defendant. At this stage, I cann ot resolve the conflicting positions of the parties as there are matters for trial. On the foregoing and as I have already indicated, this is a fit and proper case for me to confirm the interim injunction earlier granted until the determination of the matter. The costs are for the Plaintiff which costs are to be taxed in default of agreement. Leave to appeal to the superior Court of Appeal is granted. Delivered under my hand and seal this 6 th day of August, 2019 Mwila Chitabo, SC Judge RlS