Satima Tembo v National Council for Scientific Research (Application S.C.Z. 139 of 1987) [1998] ZMSC 92 (29 April 1998)

IN THE SUPREME COURT OF ZAMBIA SCZ JUDGMENT NO. 21 OF 1988 (147) HOLDEN AT LUSAKA Application No. SCZ/8/139/1987 (Civil Jurisdiction) SITIMA TEMBO (cid:9) Applicant and NATIONAL COUNCIL FOR (cid:9) Respondent SCIENTIFIC RESEARCH CORM: Gardner, J. S. , in Chambers N. Simango, Legal Aid Counsel, for the appiicant M. Kawanambulu, Messrs Shamwana and Company, for the respondent 29th April, 1988 JUDGMENT In this case the applicant applies for an order cf committal of the respondent's representative on the grounds that, being aware of an injuncti7m which had been issued by this court, the respondent's representative continued to deme1i-5h the applicant's property contrary to the terms of the injuction. Affidavit evidence has been led to the effect that, on the morning of the action complained of, the respondent's representative was shown a copy of this court's order and refused to take notice of it; such refusal taking the form of instructing his work force to continua to demolish the applicant's property. There was further affidavit evidence that a copy of the order was served upon the respondent in the afternoon of the same day. The order was not endorsed with penal notice in accordance with Order 45 Rule 7(4) the Supreme Court Practice (1976) Edition (The White Book), 2/ (cid:9) Mr. Simango J2 (1413) Mr. Simango argued that the note to Order 45 Rule 7(7) indicated that it was sufficient for the purpose of committal if the person 'Am it. was intended to commit had knowledge of the injunction. Mr. Kawanambulu argued that the absence cf the penal notice was fatt to tho applicant's application, and that, where a person had known about an injuction, it was still necessary for that person ‘„_62• (cid:9) to be warnei of the possibility of connate' if the injunction was disobeyed. Order 45 Rule 7(4) provides that it is necessary for a written notice of an injunction to be endorsed with a penal notice, and in my view the exceptions referred to in Note 7 to the rule apply only when there has been insufficient time to prepare a written notice of injunction. Once a written notice has been prepared it must contain a penal notice in accordance with Rule 7(4) in order to make a breach fYF the injunction the subject cf an order of committal. To hold otherwise would te render the provision requiring a penal notice valueless, in that all injunctions by their very nature are matters of urgency, and parties wishing to enforce injunctions would in all cases be able to avoid tlhecessity for a penal notice by relying on verbal notice. As the applicant in this case did in fact have time to draw a written order, and, as such order did not contain a penal notice as required,tho application for an order of committal is refused. 3/ (cid:9) (cid:9) 33 (cid:9) (149) B. T. Gardner SUPREME COURT JUDGE