Whidden Kanungwe v Zambia Sugar PLC (Appeal 192 of 2000) [2002] ZMSC 147 (29 April 2002)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 192/2000 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: WHIDDEN KANUNGWE AND ZAMBIA SUGAR PLC APPELLANT RESPONDENT CORAM: Lewanika, D. C. J., Sakala and Chirwa, JJs on 15th February 2001 and 29th April 2002 For the Appellant: For the Respondent: Ms. M. Mushipe, Mushipe & Associates Mr. I. C. Ng’ona, I. C. Ng’ona & Co. JUDGMENT Chirwa, JS delivered judgment of the Court: - At the hearing of the appeal on 15th February 2001 the appellant applied for leave to adduce fresh evidence pursuant to Order 59 r.14 (1) of the Rules of the Supreme Court and Rule 39 of the Supreme Court Rules of the Supreme Court and this application was refused and we stated that we would give our reasons for the refusal in the main judgment. We wish to give the reason why we refused the application to adduce fresh evidence before we make our judgment on the appeal. The application for leave to adduce fresh evidence is supported by an affidavit sworn to by the appellant in which the essence is his assertion that he was a sitting tenant and that he occupied the house in issue by virtue of his employment in some other parastatal and therefore was entitled to purchase the : J2 : house especially in view of the fact that he had not been paid his full terminal benefits. The issue before the High Court, subject of this appeal, was an injunction, which the learned judge refused to grant on the basis that the appellant has no legal right to protect. The issue of an injunction is irrelevant to the issues of whether he is entitled to purchase the house because his terminal benefits have not been fully paid. The fresh evidence proposed to be adduced is irrelevant to the appeal. In any event if it is relevant, it is evidence that was available to the appellant at the hearing of the injunction at the High Court and he should have adduced it then to enable the judge decide on it. It is for this reason that we refused the application to adduce fresh evidence. Coming to the appeal before us, the appellant is complaining against the refusal by the High Court to grant him an injunction to restrain the respondent from evicting him from house No. 93 Mutobe Road, Roma, Lusaka which house he occupied as an employee of a subsidiary of Zambia National Wholesale and Marketing Company (ZNWM), namely National Home Stores Ltd. The said Zambia National Wholesale and Marketing Company fell under ZIMCO groups of companies. The appellant, whilst still in employment with National Home Store expressed his interest to purchase this house and his company forwarded his request to ZNWM alerting them of the appellant’s interest in the house. Before anything was done on the appellant’s desires to purchase the house and in the course of privatization the respondent was privatized and therefore broke off from the ZIMCO group of companies. The respondent acquired the house in issue through debt swapping. The appellant continued occupying this house in question and the respondent advertised to sell the house and the appellant responded and offered to buy the house at K59,000,000.00. He got no response from the respondent and the appellant topped up the bid figure to K73,000,000.00 again he got no response from the respondent. He then wrote the Chairman of Tate & Lyle Company, the Company that bought the respondent but got no response. The appellant then wrote to the Minister of Works and : J3 : Supply but the response did not satisfy the appellant. After the respondent was privatized and the appellant was still occupying the house, the respondent proposed to the appellant to enter into lease agreement for good order and this was done on 1st July 1996. The respondent then decided to terminate this agreement by giving three months as provided for in the lease agreement and it is as a result of this notice to terminate the lease agreement that the appellant commenced the proceeding by writ of summons praying, among other claims, an injunction to restrain the respondent from evicting the appellant from the house. The learned trial judge on the facts outlined above held that the appellant had no legal right to protect by granting him an injunction and refused to grant the injunction but gave the appellant three months protection order to enable him to relocate himself. It is against this refusal for an injunction that the appellant has appealed. The appellant filed six (6) grounds of appeal and these were followed by detailed written heads of argument. The respondent also followed with detailed written heads of argument. Basically the appellant’s grounds of appeal evolve on the findings that the relationship between the parties was that of landlord and tenant and that there was no provision in the tenancy agreement that gave the appellant a legal right of first offer. In other words, it is stated that the learned trial judge erred in holding that the appellant failed to establish a legal right that should be protected by an injunction. Further that the holding by the trial judge that the house in question belonged to the respondent a private company was a pre-emptive decision on ownership when that issue had to be decided at trial as the debt swap for the house was malafide as it was done without knowledge of the appellant who had the capacity to off-set the debt to the value of the house. There was, therefore, need to keep the status quo until the issue of ownership of the house was determined at trial. These arguments, it has been submitted, uphold the principles upon which injunctions are granted, namely to keep the : J4 : status quo until the matter is decided at trial without prejudicing the appellants’ rights; that having established his legal right the appellant was entitled to remain in the house until the issue of ownership of the house is determined other than pre-emptively conclude that the appellants' claim is baseless in law. The respondent in reply as we have stated, also filed detailed heads of argument supporting the learned trial judge that the judge correctly held that the relationship between the appellant and the respondent was that of landlord and tenant that this is fully supported by the appellant himself in his affidavit in support of the application for an injunction. Further it is established that the appellant made an offer to buy the house from the respondent knowing that the respondent was the owner of the house and the government policy of offering houses for sale does not affect private companies or institutions and that whatever rights the appellant might have had before the house was debt swapped to the respondent those were extinguished on the swapping of the house for the debt due. We have considered the affidavit evidence in support of the application for the injunction and that in opposition before the learned trail judge and also his judgment. We have also paid serious attention to the written submissions and oral submissions by counsel and also the authorities referred to by counsel. The law on the issue of injunctions has been properly seized by the counsel. The applicant must establish a prima facie legal right to be protected by the injunction. He must also, after establishing the right, show that the balance of convenience is in his favour and failure to give him the injunction will cause irreparable damage that cannot be atoned by damages. In search of establishing the legal right, the court is not looking for strict proof of the same; it is a mere prima facie legal right capable of being enforced. In the present case the appellant was establishing his right to the house as a sitting tenant. There is no doubt that he occupied this house by virtue of his employment in the ZIMCO group of companies and while under that status he : J5 : applied to purchase the house in line with the government policy of selling government and parastatal houses to sitting tenants. The appellant never got any response to his offer, either acceptance or refusal. The appellant does admit that while he was a sitting tenant the house was debt swapped to the respondent after it was privatized. Whatever rights he acquired over the house before the respondent was privatized or in relation to his employers, those rights were extinguished when the respondent, as a private company, accepted to swap the debt due from National Home Stores for the house. The right to sell to sitting tenants was no longer available as the house was now owned by the respondent, a private company not affected by the government policy on sale of its houses and those of its parastatals to sitting tenants. From this scenario, the appellant failed to establish a prima facie legal right to protect by an injunction. If there were any malafide dealing on the house, it was by his employers but then they were trying to lessen their debt burden. We cannot, therefore, fault the learned trial judge in holding that the appellant had no legal right to protect. His refusal to grant an injunction is fully supported by the circumstances of the case. We do not need to consider other grounds. This appeal fails with costs to the respondent, both here and in the court below to be agreed and in default to be taxed. D. M. LEWANIKA DEPUTY CHIEF JUSTICE E. L. SAKALA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE