SAKALA, J.S., delivered for Judgmett of the Court.
On 14th January 1997 when we heard this appeal, We allowed the appeal. We granted the interlocutory injunction to the appellant pending the trial of the main action on conditions that the appellant parks the vehicle and does not use the same and on his undertaking to make good should it transpire after the trial of the main action that the injunction ought not to have been given. We further indicated at that time that in our judgment we shall distinguish between the perquisites, popularly called perks., which are an incident of employment and co-extensive therewith; and conditions and benefits, such as the purchase of the employers items used by the employee, on favourable terms, after a certain period or at the end of the employment, which is quite another matter. We said then that we would give our reasons for our decision in a written judgment on a date to be notified. We now give those reasons.
This is an appeal against a ruling of the High Court refusing to grant the appellant an interim injunction pending the trial of the main action. The facts of the case in so far as they are relevant to this appeal are that, on 5th March, 1968, the appellant was employed by the respondent as a Sales Trainee. He rose to various senior positions within the respondent company. In the course of his employment he was entitled to a company house and a personal-to-holder vehicle. On 12th September, 1994, after some protracted correspondence between the appellant and the Managing Director of the respondent company, the appellant applied for early retirement effective on same date of the letter. In his application for early retirement, the appellant, among other things, requested to be sold the house he was occupying and the company car which was allocated to him on a personal-to-holder basis. On 31st October, 1994, after further protracted correspondence, the respondents Managing Director wrote the appellant informing him that his offer to go on early retirement had finally been accepted to be effective from the date of the letter. The Managing Director set out, in detail, the terms upon which the appellant was being retired. The letter showed among other things , that a sum of K21,855,344.00 had been deducted from the appellants terminal benefits as the purchase price of the vehicle now in issue.
It was common cause that the appellant disputed the price at which the vehicle was pegged. The appellant made counter offers to the Managing Directors offers. These were rejected. Instead the Managing Director advised the appellant to report for work. The appellant refused this new offer of requesting him to report for work and insisted to proceed on early retirement as already accepted by the company on the terms and conditions as calculated by himself. It was also common cause that the appellant never reported back for work. Consequently, on 12th May,1995, the respondent company wrote the appellant, through his lawyers, informing him that he had been summarily dismissed. In the letter of summary dismissal the appellant was, among other things, requested to vacate the house and to return the personal-to-holder car.
On 22nd May,1995, the appellant commenced an action by way of an originating Notice of Motion seeking several declarations among which was a declaration for an order declaring that he was entitled to the purchase of the house and of the car registration No. AAL 9132 which was allocated to him on a personal-to-holder basis. On the same date the appellant applied for an interim injunction against the respondent to restrain them from claiming possession of the house he was occupying and the company car. The appellant obtained the interim order pending the inter-parte hearing.
In his ruling after the inter-parte hearing the learned trial judge accepted that on the facts as presented before him there was a serious question to be tried at the trial and accepted the principles set out in the case of Preston v Luck (1) where Lord justice Cotton at Page 506 had this to say:
Of course, in order to entitle the Plaintiffs to an interlocutory injunction, though the court is not called upon to decide finally on the right of the parties, it is necessary that the Court should be satisfied that there is a serious question to be tried at the hearing, and that on the facts before it there is a probability that the Plaintiffs are entitled to relief.
The trial judge also accepted the principles in Shell and BP v Conidaris and others (2) where this Court stated:
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 injury means injury which is substantial and cannot be adequately remedied or atoned for by damages, not injury which cannot be possibly repaired.
The learned trial judge properly observed that the question of the appellants entitlement to exercise his option for an early retirement will have a bearing on the issue of whether the purported summary dismissal was null and void at the trial. The court noted that at that juncture the issue was whether the case was a proper one to grant an interim injunction. The learned trial Judge then stated:
I am quite mindful of the fact that the company house and the vehicle Nissan Patrol were enjoyed by the Plaintiff only and purely as an incidence of his employment and the Plaintiff has no rights in them other than by reason of his employment which has now been terminated. There is no doubt that the house and the motor vehicle are the Defendants property. That being the case, the Plaintiff cannot continue to enjoy these facilities when his employment with the Defendant has ceased unless he can show this Court that once these facilities have been withdrawn, the Plaintiff will suffer irreparable injury which can never be adequately remedied or atoned for damages.
After alluding to the affidavit of the appellant where he deposed of the inconvenience and the heavy suffering in form of money, the court noted that these are not the grounds upon which interim injunctions are granted as they can be adequately compensated for by damages. The learned trial judge felt that it was going to be unfair to the respondent for the appellant to continue occupying the company house and using the company vehicle when he ceased working for the respondent at the time he purported to retire. Based on this reasoning the court found that the appellants case was not an appropriate one for the grant of an interlocutory injunction. The appellants application was refused with costs. Hence the present appeal to this court.
At the hearing of the appeal the court was informed that the issue of the house had been settled by consent. The arguments in the appeal were therefore centered on the grounds relating the issue of the motor vehicle.
Both learned counsel filed written heads of argument which we have taken into consideration in this judgment. The gist of Mr. Willombe s submissions is that when the appellant had opted for early retirement, which had been accepted, he had purchased the personal-to-holder vehicle in issue as evidenced by a deduction of a substantial sum of money from his terminal benefits. Mr. Willombes contention was that, the issue of the vehicle arose only when he queried the price of the vehicle as being on the higher side, otherwise it was never an issue. Mr. Willombe urged the court not to disturb the status quo of the vehicle.
In reply Mr. Shamwana contended that the learned trial judge was correct to find that it would be unfair for the appellant to continue to use the respondents vehicle when his employment had been terminated. Mr. Shamwana submitted that it is an accepted principle of law that if one enjoyed a vehicle as a result of his employment, he ceases to enjoy the same upon the termination of his employment. He pointed out that his principle was affirmed by this court in the case of Zambia Railways v Simumba (3).
We have very carefully examined the facts as presented by this appeal and the ruling of the learned trial judge. We are satisfied that the learned trial judges approach and analysis of the principles governing the grant of injunctions cannot be faulted. Indeed the case raises very important issues to be determined at the trial among the issues to be decided upon on the facts, in our view, will be whether summary dismissal of an employee by an employer is competent after the employer has already accepted that employees application for early retirement. But this appeal also raises a very important issue of whether there is a distinction between perquisites, which are an incident of employment and enjoyed only and purely as an incidence of employment , and cease on termination of that employment; and the conditions and benefits, such as the purchase of the employer s vehicle and other items used by the employee, on favourable terms, after using those items for a certain period or at the end of the employment. The issue has not been specifically argued . However, in cases where the claim is for reinstatement this court has accepted that the question of whether or not the ultimate decision of a trial court would result in the reinstatement of the employee was of vital importance in determining whether the employee would be entitled to an interlocutory injunction. Hence where there is nothing on the facts to suggest that a case is a rare one where reinstatement would be likely to be ordered this court has held that the case was not an appropriate one for the grant of an interlocutory injunction restraining the employer from repossessing the house and the vehicle(see the case of Zambia State Insurance Corporation Limited v Mulikelela (4) and Zambia Railways Limited v Oswell Simumba (3).
These were cases where the employees claimed reinstatement after their employment was terminated. They enjoyed the accommodation and the vehicles as an incidence of their employment. This court refused to grant interlocutory injunctions in relation to the accommodation and the vehicles because reinstatement being a rare remedy, the court, on the facts before it, found that there was no probability that the appellants would be entitled to the remedy of reinstatement. In considering the appeal before us we take note that the issue of whether an employee whose application for early retirement has been accepted can be subsequently be summarily dismissed will be of vital importance to be decided upon by the trial court. We accept that the case is not one of claiming for reinstatement. On the other hand, on the facts before us and put before the Judge below, but without prejudging the issue, this appears to us to be an exceptional case where a probability exists that the appellant would be entitled to the relief he is seeking. But in deciding whether this is an appropriate case for granting an interlocutory injunction we have taken note of the other facts on record that the appellants conditions of service entitled him to a personal to-holder car replaceable every four years with an option to purchase it. We have also taken keen note of the fact that in the letter accepting the appellants application for early retirement, the respondents Managing Director wrote as follows:
It has been agreed to have your current personal-to-holder vehicle (Nissan Patrol Registration No. AAL 9132) transferred to your ownership at a value of K21,855,344.00.''
The appellant had retired. We cannot accept that this was a mere gratuitous offer. In our view, this reinforces the argument that the vehicle in issue was not only an incident of employment but a benefit to be enjoyed even after termination of employment as well. There is also evidence on record that in the course of his employment the appellant was authorised to purchase a vehicle under the senior staff personal-to-holder car scheme in accordance with his conditions of service. We take judicial notice of the common practice in most parastatal companies of the existence of conditions of service where employees have been allowed to purchase personal-to-holder cars either after a certain period or upon the employees death or retirement. We are satisfied that on the facts before us the appellant enjoyed conditions and benefits, such as the purchase of the respondents vehicle used by him, on favourable terms, after a certain period or at the end of his employment. This is the distinction between the perquisites enjoyed as an incident of employment and conditions and benefits enjoyed after a certain period while in employment or at the end of that employment. All in all we are satisfied that the competence of summary dismissal of an employee after his retirement has been accepted, is a question of vital importance to be tried at the hearing. We are further satisfied that on the facts before us and those presented before the trial judge there is a probability that the appellant may be entitled to the relief he is seeking.
For the foregoing reasons we allowed the appeal and granted the interlocutory injunction in relation to the vehicle.