Zambia Telecommunications Ltd v Situmbeko (SCZ 109 of 2007) [2009] ZMSC 157 (18 September 2009)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO.78/07 HOLDEN AT LUSAKA SCZ/109/2007 (CIVIL JURISDICTION) BETWEEN: ZAMBIA TELECOMMUNICATIONS LIMITED APPELLANT AND COLLINS SITUMBEKO RESPONDENT Coram: Lewanika, DC J, Chitengi, JS, Kabalata, JJS On 3rd June, 2008 and 18th September, 2009. For Appellant: Mr. J. J. M. Mulongo, Chief Legal Officer, Zambia For Respondents: In Person. Telecommunications. JUDGMENT Chitengi, JS, delivered the Judgment of the Court The facts of this case can be briefly stated. The Respondent is employed by the Appellant as an Assistant Accountant. Sometime in June 2006 the Respondent applied for sponsorship to pursue CIMA Managerial studies at Zambia Centre of Accountancy Studies (ZICAS). Management turned down the Respondents application on the ground that it was against company policy, which is one of sponsoring only those doing final part of CIMA and not CIMA Bridging Course which the Respondent was doing. Dissatisfied with the rejection of his application for sponsorship, the Respondent appealed to the r Managing Director who on 5th July 2006 approved the Respondent’s sponsorship. The following day on 6th July 2006 the Appellant wrote to ZICAS communicating the Appellants commitment to sponsor the Respondent and asked ZICAS to reserve a single room for the Respondent at the Campus. On 26th July 2006 there was a turn of events. The Appellant’s Director of Human Resources wrote the Respondent withdrawing the sponsorship on the ground that the Respondent’s application was based on CIMA Certificate level when full time sponsorship is only for final stage CIMA and other qualifications. But according to the Respondent there is no such clause in the training policy document. After writing to the Respondent the Appellant subsequently wrote to ZICAS withdrawing the Respondent’s sponsorship. However, relying on their policy ZICAS refused to withdraw the Respondent from class. Thereupon, the Appellant paid K12,000,000.00 to ZICAS and loaned the Respondent K24,000,000.00 when the Appellant only paid K12,000,000.00 to ZICAS. The Appellant is recovering the money from the Respondent’s salary. Pleas by the Respondent to restore the sponsorship and stop deduction from his salary have been rejected. The Respondent is now not in school because the Appellant has made everything impossible. According to the Appellant, the grant of sponsorship by the Managing Director was erroneous. This error was corrected by withdrawing the sponsorship in accordance with the Appellant’s _training„ policy. Upon -withdrawal _ of the sponsorship, the Respondent refused to return to work. Thereupon, the Respondent was granted an education loan to enable him complete his course. After the course, the Respondent asked for sponsorship for him to enrol again for the January 2007. The Respondent was advised that the reason for withdrawal of the sponsorship had not changed. The Appellant can only sponsor only those pursuing final level programmes. As stated earlier the Respondent’s position is that there is no such policy. On this evidence, the learned trial Judge after citing and considering cases on grant of interlocutory injunctions found that the Respondent had raised serious issues to be determined at the trial. The learned trial Judge referred to these issues. Whether the Managing Director made an error when he allowed the Respondent’s appeal and authorized the Respondent’s sponsorship; whether Appellant judiciously exercised its discretion to cancel the sponsorship 20 days after agreeing to sponsor the Respondent; whether or not the course for which the Respondent was sponsored was for six months only and has no levels and whether or not the loan was granted in good faith. The learned trial Judge also found that on the facts of this case the Respondent would suffer irreparable injury if an injunction is not granted because, to use the learned trial Judge’s expression, “opportunity knocks but once”. It was the learned trial Judge’s view that the Appellant would not suffer prejudice if the Appellant resumed sponsoring the Respondent. On the other hand, the Respondent would be greatly prejudiced if he does not continue with his studies with the Appellant’s sponsorship. The learned trial Judge also observed that the Appellant has already made it impossible for the Respondent to continue studying by using a loan and ordered restoration of the sponsorship action. For these reasons the learned trial Judge did not accept the submission by Counsel for the Appellant that granting an injunction will create new conditions favourable only to the Respondent. The Appellant now appeal to this court advancing two grounds of appeal. The first ground of appeal is that the court below erred in law in holding that the grant of an injunction would not create new conditions favourable only to the Respondent because the Appellant would not at all be prejudiced if it resumed sponsoring the Respondent. The second ground of appeal is that the court below erred in law when it held that on the basis of an old adage that an "opportunity knocks but once” the Plaintiff was likely to suffer irreparable injury if the injunction was not granted. Both Mr. Mulongo, learned Counsel for the Appellant, and the Respondent who appears in person made no oral submissions but relied on their written heads of argument. In the view we take of this appeal it is necessary to Counsel’s ......._ arguments on ground one only. .___ __ _ ._ ______ ___________ Mr. Mulongo’s written arguments on ground one start with citing the case of Turnkey Properties V Lusaka West Development Company Limited'1’ which states the principles under which an interlocutory injunction may be granted or refused. One of these principles is that an interlocutory injunction is appropriate for the preservation or restoration of a situation pending trial. Mr. Mulongo pointed out that in this case, at the time the Respondent issued the Writ of Summons in January 2007, the Appellant had on 28th July 2006 already withdrawn the sponsorship of the Respondent. Mr. Mulongo further pointed out that according to the document at page 23 of the Record of Appeal the Respondents study programme was from 6th July 2006 to 6th December 2006. The Respondent had been given an educational loan and paid study leave. Furthermore, Mr. Mulongo pointed out that at the time of the issue of the Writ of Summons the Respondent was not in school as the study leave had ended on 6th December 2006. At the time the interlocutory Injunction was issued on the recovery of educational loan was still running. It was Mr. Mulongo’s submission that the grant of the interlocutory injunction six weeks after the end of the Respondent’s study programme on 6th December 2006 defied the settled principles in Turnkey Properties'1’ and the injunction should be discharged. On the Writ of Summons and Statement of Claim, Mr. Mulongo stated that-one of the claims in-damages-for victimization.--It-was. s Mr. Mulongo’s submission that in line with what this court said in Turnkey Properties*1’ the claim for damages should have been considered by the court below as adequate remedy. Finally on the ground Mr. Mulongo submitted that the grant of an interlocutory injunction compelling the Appellant to restore the cancelled sponsorship cancelled prior to the action made the injunction a device by which the Respondent obtained new conditions favourable only to the Respondent. Mr. Mulongo said the favourable condition is that the Appellant will have to resume sponsoring the Respondent pending trial even when there was no documentary evidence before the court below that the Respondent was in school in January 2007 or any other date after 6th December 2006 when his study programme ended. The Respondent’s written argument is that the learned trial Judge did not error to grant the interlocutory injunction in his favour. The Respondent then cited the case of Zambia Revenue Authority V Makeni Gardens*2’ where this court said, inter alia, that: “.... We are satisfied that the balance of convenience is more in favour of the Plaintiff and that being the case an interlocutory infunction appropriate for the preservation of the status quo of the parties pending trial as nobody jpill lose out” By quoting this passage from the Zambia Revenue Authority case*2’, we take it the Respondents argument is that the balance of convenience in his favour and therefore, the status quo should be m ain tained -.. -- - ________—_ Wc have carefully considered the affidavit and documentary evidence that was before the learned trial Judge, the submissions of Counsel and the Respondent and the Ruling appealed against. As Mr. Mulongo, the learned Counsel for the Appellant, pointed out in his arguments, the critical issue in this case is whether there was a status quo to be maintained or restored. In her Ruling, the learned trial Judge referred to the sponsorship period and posed the questions whether the Managing Director made an error to allow the appeal; whether the discretion to cancel the sponsorship was exercised judiciously; whether or not the sponsorship was for six months only and does not have level and whether the education loan was granted in good faith. In view of these concerns in her mind the learned trial Judge found that there are serious issues to be determined at the trial. But the evidence properly evaluated provides answers to these questions and in deciding whether there was a status quo to be preserved or restored. One striking feature of this case is that the Respondent either in his Writ and Statement of Claim or in his Affidavit in Support of his application the interlocutory injunction which he wrongly called moreva injunction, does not state the period he asked to be sponsored. Be that as it may be, the letter to the Respondent from the Training Manager (Exhibit CSI to the Affidavit in Support) shows that the Managing Director approved six months, that is from 6th July 2006 to 6th December 2006, . This... approval was contrary_to the decision of the management of. the Appellant. In other words, the Managing Director over-ruled his management. But the management would have none of the Managing Director’s actions which they considered contrary to the Appellant’s training policy and quickly, if not peremptorily, over-ruled its Managing Director. From the papers on file the Managing Director did nothing in re-action to his management over-ruling him. The Managing Director recoiled, from the evidence on file it is also clear that the Respondent did not pursue the matter further with the Managing Director. What followed was the study loan story. What follows from what we have said above is that by 26th July 2006, the date of the letter withdrawing the sponsorship, there was no sponsorship relationship between the Appellant and the Respondent. The Respondent was paying for his tuition etc from the education loan the Appellant had granted him. In the circumstances, we must accept Mr. Mulongo’s observation that at the time the Writ of Summons was issued and the application for an interlocutory injunction made in Januaiy 2007 the sponsorship has already been withdrawn on 26th July 2006 and that the study leave had ended on 6th December 2006. From his short submission, even the lay Respondent is aware that on authority for an injunction to be granted there might be a status quo to be maintained. In this case, as Mr. Mulongo rightly argued, at the time this action was commenced and the application for an interlocutory injunction was made there was no status quo to be maintained. As we have said the sponsorship which is the basis for this action had along been withdrawn and even if not withdrawn long expired by affluxion of time. To the extent that this action also seeks the remedy of an interlocutory injunction, it should have been brought within 26th July 2006, the date of withdrawal of the sponsorship and 6th December 2006 the date of the lapse of the sponsorship which was approved by the Managing Director and which the management over-ruled. As matters now stand we must accept Mr. Mulongo’s submission that on authority the interlocutory injunction should not have been granted. There is no status quo to be maintained or restored. In the result we allow this appeal and set aside the judgment of the court below. We make no order as to costs.