SELECTED JUDGMENT NO. 55 OF 2014
IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 200/2014
HOLDEN AT LUSAKA
NEVERS SEKWILA MUMBA APPELLANT
MUHABI LUNGU (Suing in his capacity as
National Secretary of the MMD) RESPONDENT
Coram: Chibesakunda, Ag. CJ, Chibomba, Phiri, Wanki, Malila, Kaoma, JJS and Lisimba, Ag. JS
On 15th, 16th and 18th December 2014
For the Appellant: BC Mutale, SC Messrs. Ellis & Co.
N. B. Mutti, Messrs. Lukona Chambers
F. Besa, Messrs. Besa Legal Practitioners
For the Respondent: A. J. Shonga, Jr. SC., Messrs. Shamwana & Co.
S. Lungu, Messrs. Shamwana & Co.
Malila, JS, delivered the Judgment of the Court.
Cases referred to:-
- Anderson Kambela Mazoka & Others v. Levy Mwanawasa & Others (2005) ZR 138
- Nyampala Safaris (c) Ltd & Others v. Zambia Wildlife Authority and Others (2004) ZR 49
- Shoprite Holdings and Another v. Lewis Chisanga Mosho & Another (SCZ Judgment No. 40/2014)
- Buchman v. The Attorney General (1993 -1994) ZR 131
- Mususu Kalenga Building Limited and Another v. Richman’s Money Lenders Enterprises (1999) ZR 27
- Kearney and Company Limited v. Taw International Leasing Corporation (1978) ZR 329
- National Airports Corporation Limited v. Zimba (2000) ZR 154
- Zambia Telecommunications Company Limited v. Mulwanda and Others (2012) ZR 404
- The Minister of Home Affairs and Another v. Habasonda (2007) ZR 207
- Zambia Breweries Plc v. Sakala (2012) 2 ZR 460
- American Cyanamid Company v. Ethicon Limited (1975) AC. 396
- Preston v. Luck (1884) 27 Ch D
- Ndovie v. National Educational Company of Zambia Limited (1984) ZR 186
- Zambia State Insurance Corporation Limited v. Dennis Mulikelela (1990 – 1992) ZR 18.
- Shell and BP Zambia Limited v. Corindaris and Others (1975) ZR 174
- Zimco Properties Limited v. Lapco Limited (1988 – 1989) ZR 92
- Reckitt & Coleman Products Limited v. Burden Inc. (1990) 1 WLR 491
- Cambridge Nutrition Limited v. BBC (1990) 3 ALL ER523 at 534
- Lock International Plc v. Beswick and Others (1989) 2 ALL ER 373,
- Attorney General v. Kakoma (1975) ZR 212
- Da Costa v. Cockburn Salvage and Trading PTY Limited (1970) 124 CLR 192
- Fox v. Percy (2003) 214 CLR 118.
- Kearny and Company Limited v. Taw International Leasing Corporation (1978) ZR
- Shepard Homes Ltd. v. Sandham (1970) 3 ALL ER 402
- Fellows and Sons v. Fisher (1976) QBD 122 at page12
- Attorney General v. Kateka (1975) ZR 212
Other authorities referred to:-
- Judicial Opinion Writing Handbook, 4th Edition (New York William Stein & Co. Inc., 200) at page 113
- Halsbury’s Laws of England, Volume 24 at paragraph
- Order 27 of the High Court Rules Cap. 27 of the laws of Zambia
- Order 29 of the Rules of the Supreme Court (White Book) 1999 Edition.
- Order 29/L/1 of the White Book
- Order 29/1A/2 of the White Book 1999 Edition
- Order III (2) of the High Court Rules, Chapter 27 of the laws of Zambia
The appellant has appealed against the Ruling of the High Court given on the 10th of December, 2014, declining to grant him an interlocutory injunction pending the determination of an action he commenced against the respondent in the High Court under Cause No. 2014/HP/1870.
The relevant facts leading to the present appeal can be summarised as follows: the appellant was elected President of the Movement for Multiparty Democracy (MMD) during the Extraordinary Party Convention held in 2012 after the resignation of the then Party President, Mr. Rupiah Bwezani Banda, following his defeat in the September, 2011 General Elections. Ensuing the death in October 2014, of the Republican President, the MMD started to position itself to field a candidate in the presidential elections scheduled for January, 2015. Internal disputes within the MMD appear to have arisen during what we can only assume, is strategic political posturing, as to who should be fielded as the party’s candidate in the national presidential election.
The MMD’s National Executive Committee (the NEC) meeting was convened on 16th November, 2014 with the appellant, who, as we have already said, was the duly elected Party President, in attendance. Another meeting on the 18th of November, 2014 at which the President of the MMD was absent, was also held. At the latter meeting, it was decided that the former MMD and Republican President, Rupiah Banda, be adopted as the Party’s presidential candidate for the 2015 presidential election, and that the appellant be suspended from discharging his functions as President of the Party. The high water mark to this unfolding tale was when a letter was delivered to the appellant on the 19th of November, 2014, communicating his suspension from discharging his functions as Party President as well as his being charged with gross misconduct.
Aggrieved by this development, the appellant then took out an action by writ of summons and a statement of claim filed in the High Court, claiming the following reliefs:-
- A declaration that the purported suspension of the plaintiff as party President was wrongful, illegal, null and void ab initio;
- Order for reinstatement or restoration of the plaintiff as Party President of the MMD;
- A declaration that the deliberations and decisions and or resolutions made in the meeting of the 18th of November, 2014 and are null and void ab initio
- An order of interim injunction restraining the Defendant either by himself, agents, servants and whomsoever, from interfering with the smooth running to the office and functions of party President by the plaintiff;
- Any other relief that the Court may deem fit and just;
- Costs of and incidental to this action.
Alongside the writ and the statement of claim, the appellant filed into court an ex parte summons for an order of interim injunction pursuant to Order 27 of the High Court Rules, Chapter 27 of the laws of Zambia, as read with Order 29 of the Rules of the Supreme Court (White Book), 1999 Edition. This summons was supported by an affidavit deposed to by the appellant. For a fuller appreciation of the sequence of events from the appellant’s perspective, it is instructive that we should set out in detail, the appellant’s averments in the said affidavit. The relevant statements sworn to by the appellant in his affidavit allege that:-
- all was well in the rank and file of the party membership and structures until in the month of November, 2014, two week
following the death of the Republican President, when the issue of who was to run for the Republican Presidency on the MMD ticket, arose;
- as Chairperson of the NEC, he caused a meeting to be convened whose agenda was to consider (i) whether the MMD should participate in the presidential election; (ii) the possibility of MMD forming an alliance with other opposition political parties; (iii) the Party’s candidate in the impending presidential election, and (iv) election and campaign resources;
- in line with the procedure and long standing practice, notice of the meeting, together with the agenda, were circulated to all members of the NEC seven days prior to the holding of the meeting;
- the NEC meeting was held on Sunday, 16th November, 2014 at the MMD Secretariat and resolved, inter alia, that (i) a general consensus was garnered that the party should participate in the election, (ii) there was considerable support for an alliance with other political parties, (iii) there
was no provision in the MMD Constitution for selecting a candidate from outside when there was an eligible sitting president, (iv) some members of the NEC wanted the retired President of the Party, Mr. Rupiah Banda, to be the presidential candidate;
- the appellant as President of the MMD was given the mandate to seek possible political alliances with other opposition political parties and to talk to Mr. Rupiah Banda over his role in the election, and to report back to the NEC on these tasks;
- the very next day, on the 17th November, 2014, in a dramatic turn of events and before the appellant could report back on the assignment given to him by the NEC, the appellant received a report that cadres had invaded the Party Secretariat chanting pro-former President Rupiah Banda’s slogans. The appellant had information that the cadres had been mobilized by the defendant, and other people unknown to the appellant, and were due to be addressed by the defendant as National Secretary, and Mr. Rupiah Banda.
- The appellant declined the telephone invitation to go to the meeting at the secretariat without knowledge prior of the agenda for the meeting, and which was, furthermore, arranged in the presence of cadres;
- the appellant suggested that he could meet Mr. Rupiah Banda at a neutral venue without cadres. That meeting was held and it was agreed that the details of the said meeting were to be published the following day after consultations;
- soon following the said meeting, some NEC members began collecting signatures from other unsuspecting NEC members and MPs petitioning the NEC to pick Mr. Rupiah Banda as the Party’s candidate in the upcoming presidential elections;
- the appellant then addressed a media conference at his residence where he refuted claims that the MMD had adopted Mr. Banda instead of himself as the Presidential candidate;
- on 18th November, 2014, without consulting the appellant as Chairman of the NEC, some selected members of the said committee convened a meeting where it was resolved (i) to
- suspend the appellant as Party President; (ii) to adopt Mr. Rupiah Bwezani Banda as the Party’s candidate in the upcoming presidential election;
- the appellant was served with the letter of suspension and charge for gross misconduct, on the 19th of November, 2014;
- the appellant’s suspension was a sham, created merely to enable Mr. Rupiah Banda to stand in the upcoming presidential election on the MMD ticket. The said meeting of the 18th of November, 2014 was illegal in that it was convened:-
- without due notice being given to all the NEC members;
- without the agenda being circulated to all the NEC members;
- without the 7 days’ notice given to all members for the convening of the meeting;
- without informing the appellant as Chair of the meeting of the NEC.
On the basis of these averments contained in his affidavit, the appellant asked the High Court to grant him an Order of interim injunction restraining
“the defendant [respondent] and his agents whosoever called from interfering with my functions as Party President.”
He claimed that unless the respondent was so restrained, the respondent was likely to continue breaching the Party Constitution and, thereby, causing him to suffer injustice likely to lead to a breach of peace in the country.
On the basis of the foregoing facts, the learned trial Judge granted an ex-parte order of interim injunction to the appellant on 25th November, 2014 and directed that the inter parte hearing be on the 3rd December, 2014.
Prior to the inter partes hearing, the Respondent filed in an affidavit in opposition, rebutting the appellant’s averments in his affidavit in support. The substance of the said affidavit, were that:-
- the disagreement as to who could be presidential candidate in the event of a vacancy in the office of the Republican President arose during the illness of the late Republican President when the issue whether the appellant was the automatic candidate to be fielded by the Party for the Presidency of the Republic, was raised, but the appellant declined to entertain opinions on the matter. It was then decided that the matter would be decided by the NEC at a later meeting;
- although the practice may be that the Party President chairs meetings of the NEC, the MMD Constitution, in Article 45(3) states that the NEC meetings are to be chaired by the Party’s National Chairman;
- the meeting of the 16th of November, 2014 did not conclude its deliberations, but was adjourned to the following day for the NEC to receive a report from the appellant who, together with a three man committee, was mandated to discuss the issues of the MMD’s Presidential candidate with former, President Rupiah Banda;
- the idea of an alliance with other political parties was agreed to in principle, and an instruction was given by NEC that a subcommittee which included the appellant be constituted and to report back to the NEC for a final decision before filing in of nominations;
- there was a divergence of views on whether the MMD Constitution provided, or presupposed that the Party President is the automatic presidential candidate in the event of a national presidential election;
- the majority of the members in the meeting preferred former President Rupiah Banda as the MMD candidate for the Republican presidential election and, therefore, there was no conclusion that the appellant was the MMD’s automatic candidate to represent the Party in the presidential election;
- the respondent did not mobilize cadres and never addressed them;
- a meeting was indeed held between the appellant and Mr. Rupiah Banda, and it was further agreed that the draft agreement would be signed the following day;
- the signatures of the NEC members were taken as confirmation of a resolution that Mr. Rupiah Banda would be the MMD’s presidential candidate;
- on the17th November, 2014, the NEC met as agreed to in the meeting of the previous day. The agenda of the meeting were those items not completed at the meeting held the previous day. It was at this meeting that the defiant attitude of the appellant was noted, and a decision was taken to take out disciplinary action against him in line with the MMD constitution for going against the direction of the NEC; and
- the suspension of the appellant was done only after the appellant ignored both the MMD Constitution and the direction of the NEC, and unilaterally held a press conference and declared himself MMD’s candidate in the forthcoming presidential elections.
When the advocates for the respective parties appeared for the inter partes hearing before the learned Judge in the court below, they made spirited submissions in support of the parties’ respective positions. Thereafter, the learned Judge made his decision which he reduced into the Ruling of 10th December, 2014. In that Ruling, the learned Judge held that the MMD Party Constitution vests in both the appellant and the respondent various responsibilities and decision making roles. He lamented that he failed to find the scope or parameters of an injunction that stops the respondent or his agents, servants or whosoever, from interfering with the smooth running of the office and functions of Party President. In particular, the learned Judge was unable to appreciate, from the application before him, what conduct on the part of the appellant would amount to interference – whether these are limited to illegal acts, or any act that the appellant thinks interferes with his running of the Party.
On this basis, the learned Judge dismissed the application for an interlocutory injunction and discharged the interim injunction granted to the appellant on the 25th of November, 2014.
It is against this Ruling of the High Court Judge that the appellant has now appealed seeking to assail the Ruling on three grounds, framed as follows:-
The learned Judge in the Court below erred in both law and fact when he held that the appellant’s ex parte order of interim injunction could not be confirmed on grounds that the appellant had not furnished the parameters of the interference with the smooth running of the office of the President of MMD in the face of abundant undisputed evidence on record showing that the appellant has been suspended from his office and could not therefore perform his function as president while the suspension is still in force and hence the parameters related to the illegal suspension.
The learned Judge in the Court below erred in both law and fact when he held that the respondent could be held responsible for failing to comply with a prohibition that was not specifically spelt out in the face of evidence showing that the prohibition related to implementing the resolutions of the disputed NEC meeting which meeting purported to, inter alia, suspend the appellant as MMD President and therefore Presidential candidate and the NEC purported to adopt Mr. Rupiah Bwezani Banda as the MMD Presidential candidate.
The learned Judge in the Court below fundamentally erred in law and in fact by wholesomely concluding that the interlocutory injunction the appellant sought did not disclose whether it related
to the disciplinary proceedings of the party’s Presidential campaign by only taking a narrow look at the contents of the ex parte order of injunction when the decision of the learned trial Judge ought to have taken into account all the contents of the supporting affidavits to arrive at the Ruling.”
Written heads of argument in support of these grounds were submitted by the learned counsel for the appellant on 13th December, 2014.
When this matter came up for hearing on the 15th of December, 2014, an application was sought by both counsel, for an adjournment, to allow the respondent’s counsel, who had been served with the record of appeal, as well as the heads of argument late, time to respond as appropriate. We adjourned the matter to the 16th of December, 2014, and directed that the appellant’s heads of argument be filed and served prior to the hearing. On 16th December, 2014, the respondent filed into court the following documents:-
- Notice of Preliminary Objection pursuant to Rule 19 of the Supreme Court Rules, Chapter 25 of the laws of Zambia.
- Respondent’s Cross Appeal.
- Respondent’s Heads of Argument.
The learned counsel for both sides accepted the position that we took to hear the issues in limine first and thereafter proceed to hear the main appeal and the cross appeal, with the judgment on these three, being reserved to the 18th of December, 2014. This approach is consistent with our practice in various cases including Anderson Kambela Mazoka & Others v. Levy Mwanawasa & Others1, Nyampala Safaris (Z) Ltd & Others v. Zambia Wildlife Authority and Others2, and Shoprite Holdings and Another v. Lewis Chisanga Mosho & Another3.
Mr. Lungu, learned counsel for the respondent, argued the preliminary issues. Prior to arguing the two preliminary issues as set out in the Notice, Mr. Lungu prefaced his submissions by questioning the certificate of urgency which accompanied the Notice of Appeal, to the extent that it stated that the appeal was of extreme urgency and deserving of expeditious determination as the appellant would suffer irreparable injury if he remains suspended up to 17th December, 2014, when he as President of MMD must file his nomination for the January presidential election. Mr. Lungu’s concern was that the appeal before the Court related to the
discharge of an ex-parte injunction which the appellant had obtained in the High Court. According to the learned counsel, the ex-parte order makes no mention of the appellant’s position as someone who will be filing a nomination as a presidential candidate in accordance with his own submissions in the heads of argument at page 20.
In regard to the first preliminary issue, the learned counsel questioned whether or not the appellant can raise before this Court, issues that were not raised before the lower court. He referred us to page 9 of the appellant’s heads of argument where in support of ground one, the appellant advanced legal arguments and authorities in support of the grant of an injunction. Mr. Lungu cited arguments on the balance of convenience and adequacy of damages, as the matters that were never raised in the court below, but had been sneaked into this appeal.
As regards ground two, counsel submitted that the issue of the adoption of Mr. Rupiah Banda as Presidential candidate of the MMD, was never raised in the application for an injunction in the
lower Court. The learned counsel cited the cases of Buchman v. The Attorney General4and that of Mususu Kalenga Building Limited and Another v. Richman’s Money Lenders Enterprises,5 as authority for his submission that a matter not raised in a lower court cannot be raised in a higher court as a ground of appeal.
In regard to the second point in limine, as to whether the appellant can advance arguments not supported by the memorandum of appeal, it was submitted that an appeal cannot turn on a ground not stated in the memorandum of appeal, and such ground should therefore, not be allowed. In support of this argument, counsel referred us to our decision in Kearney and Company Limited v. Taw International Leasing Corporation,6 where Baron DCJ (as he then was) cited rule 58 (3) of the Supreme Court Rules Chapter 27 of the laws of Zambia, which provides that:-
“The court in deciding an appeal shall not be confined to the grounds put forward by the appellant, provided that the court shall not allow an appeal on any ground not stated in the memorandum of appeal.”
After citing the case of National Airports Corporation Limited v. Zimba7, the learned counsel submitted that some written arguments in support of the three grounds of appeal contained in the heads of argument are not borne out of the memorandum of appeal. In this connection, counsel cited the arguments against the allegedly flawed approach by the learned Judge below in writing a judgment; the arguments in relation to the law on granting of an injunction and the arguments on this court’s power to rehear the application on the evidence before us as set out in the supplementary heads of argument, as being matters that were outside the memorandum of appeal, and should not be considered by the court.
In his brief response, State Counsel Mutale, submitted that the preliminary issues raised were totally, misconceived as will be demonstrated when the main appeal is argued.
Mrs. Mutti, co-counsel for the appellant, in retort to the arguments on the preliminary issues, first responded on the concern raised in relation to the certificate of urgency. She stated
that the certificate was deliberately couched in the way it appears because the matter was of utmost urgency. According to Mrs. Mutti, the affidavit of the appellant, which is at page 31 of the record of appeal, clearly shows that what was at issue in the whole application was the national presidential election.
In regard to the first preliminary issue, Mrs. Mutti, while conceding that the authorities cited reflected the correct position of the law, submitted that what the heads of argument have raised are not new matters which were not advanced before the lower Court. Further understanding, these were principles of law which could be raised at any time, in either the High Court or in the Supreme Court, or in both.
Mr. Besa, co-counsel for the appellant, argued against the second preliminary issue regarding arguments being advanced outside the grounds of appeal as set out in the memorandum of appeal. He referred us to page 3 of the appellant’s heads of argument and submitted that the learned Judge in the Court below should not have confined himself to considering only the text of the
ex-parte order, but should have considered the totality of the affidavit evidence before him. It was the learned counsel’s submission that the arguments submitted on appeal, which include those on considerations for proper judgment writing, and the substantive arguments on principles relevant to granting of injunctions, were all within the general scheme of the grounds of appeal designed to show the extent of the learned Judge’s misdirection and that there was, therefore, nothing irregular about the submissions. In response to the arguments, both Mr. Lungu and State Counsel Shonga, resigned the fate of their submissions to the Court.
We have carefully considered the preliminary issues raised by the learned counsel for the respondent, the submissions and authorities as well as the arguments in response by the learned counsel for the appellant.
We do not take Mr. Lungu’s observation made before the points in limine, as part of those preliminary issues for which due notice was given. It is, nonetheless, an important observation
which the learned counsel for the appellant have also considered worthy of their reaction. We think it well that we should ventilate our views on it too.
The tenor of the certificate of urgency as quoted by Mr. Lungu on page 3 of the respondents written submissions, is that the applicant is decrying that he stands to suffer irreparable injury if he remains suspended up to the 17th of December, 2014 when he, as President of the MMD, must file his nomination for January 2015 Presidential elections. Mr. Lungu’s concern, as we understand it, is that the reason given in the certificate as justifying the urgency of the matter, are outside the focus of the appeal. According to Mr. Lungu, this appeal is not about the appellant’s filing of a nomination for the presidential election, but relates to his suspension.
We agree that what Mr. Lungu has raised is not an idle point. A matter is viewed as urgent if it is such that it cannot wait for the normal roll or queue to set down the process. This is in circumstances where delay would render the relief sought nugatory
or hollow as the delay would occasion irreparable harm. In this case, therefore, while not expected to give details of the irreparable harm or injury that the beneficiary of the certificate of urgency would suffer, it is good practice to have some indication in the certificate of urgency of the apprehended harm. Whether the intimation of a wrong reason for taking out a certificate of urgency would defeat the certificate itself, is a matter that has not been requested of us to determine. Suffice it to state that most interlocutory injunctions are, by their very nature, urgent so that those who seek them are presumed to be making urgent applications.
A perusal of the appellant’s documents filed with this appeal shows what appears, from the appellant’s point of view at least, to be a dire situation which requires immediate intervention so as to prevent some irreparable harm.
Having already heard the appeal as an urgent matter, Mr. Lungu’s concern becomes moot. In any case, as we have already stated, it was not expected of us to make any decision on this point.
As regards the first issue in limine, we accept as correct, the submission by Mr. Lungu that a party cannot raise, on appeal, any issue that was not raised in the lower Court. We have not departed, nor do we intend to depart, from the guidance we gave in the case of Buchman v. Attorney General4, which Mr. Lungu referred to namely that:
“[a] matter not raised in the lower court cannot be raised in a higher court as a ground of appeal.”
That guidance was reiterated in Mususu Kalenga Building Limited and Another v. Richman’s Money Lender’s Enterprises5, to which, again, the learned counsel rightfully referred. The reason for this position in our view, is that in an adversarial system of justice, such as obtains in this country, it is generally considered fair to afford the opposing party an opportunity to respond to every issue raised. Furthermore, we are loath to reverse a lower court based on an issue that the trial court has not ruled upon. This court will, however, affirm or overrule a
trial court on any valid legal point presented by the record, regardless of whether that point was considered or even rejected.
The issues that the respondent contends were not raised in the lower Court, and which have caused annoyance to the respondent, are basically two: (i) the legal arguments on the grant of an injunction, that is to say, the arguments on the balance of convenience, and the adequacy of damages (ii) the connection of the appellant’s suspension to the adoption of Mr. Rupiah Banda as presidential candidate.
We have perused the appellant’s supplementary record of appeal containing the record of proceedings before the lower Court at the inter partes hearing on the 3 December, 2014. In particular, we have examined page 3 lines 5 to 10. We note from the said record that Mr. Simwanza, learned counsel for the applicant before the court below, quite rightly raised the issue of irreparable injury, and the need for the right to relief being clear. We do not accept, therefore, the contention of the respondent’s counsel that the issue of adequacy of damages and balance of convenience cannot be
raised in this Court because they were not raised in the Court below. The essential requirements for the grant of an injunction logically flow into each other. They are mutually inclusive. When irreparable injury is alleged, it is ineluctable to consider the adequacy or inadequacy of damages. And, when the right to relief and irreparable injury are established, the balance of convenience is the next logical consideration. We might add that after these considerations, the equitable maxims, ‘he who comes to equity should come with clean hands’, ‘equity aids the vigilant, not those who slumber on their rights; etc, may have their place.
Perhaps an even more important reason we are inclined not to accept the respondent counsel’s argument on this score, is that the issue of adequacy of damages and balance of convenience are, as the learned counsel for the appellant have argued, in truth matters of law. It would indeed be calamitous were we to accept the argument implied in the respondent’s counsels’ submission that any legal argument and authority not advanced before a lower court, cannot be made before this Court.
As regards the issue of linking the appellant’s suspension to the adoption of Mr. Banda as Presidential candidate, we note from the affidavit in support of the ex-parte summons for an order of interim injunction, especially between pages 29 and 35, that there is mention of Mr. Rupiah Banda, in no less than nine paragraphs. In paragraph 9 (iv), 10, 12, 17, 18, 21 (i) (ii) and 23 of his affidavit, the appellant makes repeated reference to Mr. Rupiah Banda. The NEC meeting of the 18th November, 2014, which adopted Mr. Banda as presidential candidate, after suspending the appellant, in our view, sufficiently links the suspension of the appellant to the adoption of Mr. Rupiah Banda, and these are matters that were raised in the affidavit evidence before the lower Court.
We find that the first preliminary issue, premised on raising matters not allegedly raised before the lower Court, to be without merit, and we dismiss it accordingly.
In the second preliminary point, the appellant’s counsel has taken issue with the appellant’s advancing of arguments allegedly not supported by the memorandum of appeal.
Counsel advanced the argument that for one to put up any argument before this Court, that argument must be supported by the memorandum of appeal, meaning there ought to be a connection between the arguments advanced in the heads of argument and the grounds of appeal in the memorandum of appeal. For this proposition, the learned counsel cited the case of Kearny and Company Limited v. Taw International Leasing Corporation6.
Turning to the arguments by the appellant which were not borne out of the grounds of appeal, the learned counsel cited three sets of arguments, namely (i) the arguments relating to the alleged flawed approach by the learned Judge below in styling his Ruling, (ii) the arguments on the law relating to the grant of injunctions and (iii) the arguments contained in the supplementary heads of argument filed on 15th December, 2014, to the extent that they urge us to re-hear the application on the affidavit evidence before us, rather than send the matter back to the High Court for re-hearing.
We have no hesitation, whatsoever, in dismissing this preliminary issue on the following three grounds:
First, Rule 58 (3) does allow this Court to hear arguments other than those set out in the memorandum of appeal. Rule 58 (3) reads as follows:-
“the appellant shall not thereafter without leave of the court put forward any ground of objection other than those set out in the memorandum of appeal, but the court in deciding the appeal shall not be confined to the grounds put forward by the appellant; provided that the court shall not allow an appeal on any ground not stated in the memorandum of appeal unless the respondent, including any person who in relation to such ground should have been made a respondent, has had sufficient opportunity of contesting the appeal on that ground.” (Underline ours for emphasis)
The aforesaid provision, as quoted by our learned brother, Baron DCJ (as he then was) in Kearney and Company v. Taw International Leasing Corporation6, does not, in any way mean, as counsel would like us to understand, that under no circumstances will this Court hear arguments outside the memorandum of appeal. Rule 58 (3) does give discretion to the Court to grant leave to an appellant to argue outside the memorandum of appeal. Under the same rule (Rule 58 (3)) this
Court, in deciding an appeal before it, is not confined to the grounds put forward by the appellant. In this connection, the Court could consider arguments not borne out of the memorandum of appeal, the only caveat in Rule 58 (3) being that this Court will not allow an appeal on any ground not stated in the memorandum of appeal, unless the conditions set out in the proviso to Rule 58 (3) are met. Needless to state that the raising of a preliminary issue in the present case is premature given this provision. Second, within its inherent jurisdiction, this Court has discretion, guided by competing policies of fairness to opposing parties, the regard for the lower court’s role, equity and the importance of the issue before it, to consider, where the circumstances warrant, all legal points relevant to the issues before it.
Third, and most importantly, none of the issues alluded to in the appellant’s arguments are outside the scope of the grounds of appeal.
With specific reference to the instances of matters outside the memorandum of appeal, which the learned counsel for the
respondent pointed out, we have this to say. The arguments of the appellant relating to the style adopted by the learned Judge in writing his Ruling, unpleasant though they may sound, appear to us to have been intended to drive home the point about the extent of the learned Judge’s misdirection. Whether they will be relevant to the determination of this appeal, remains a matter for this Court to decide. We have already given our views in relation to the arguments on the grant of an injunction which were advanced by the appellants in their heads of argument. Those views apply in equal measure to the second point in limine.
On the arguments in the appellant’s supplementary heads of argument, all we can say at this stage, is that what the appellant’s supplementary heads of argument are urging us to do, is to exercise one of the many powers vested in this Court by section 25 (1) of the Supreme Court Act, Chapter 25 of the laws of Zambia. Those powers could, where we consider necessary, be exercised even without the appellant urging us, through his submissions, to do so. The second issue in limine is equally dismissed.
Having dismissed both preliminary points, we now turn to the main appeal.
In their written heads of argument in support of ground one, the learned counsel for the appellants submitted that the Judge below did not take into account the affidavit evidence presented through the affidavit sworn by the appellant, to find what he called the parameters of interference. Counsel contended that the learned Judge premised his finding on the evaluation of the ex-parte order of interim injunction, and that this was a misdirection.
Counsel complained that had the learned Judge cared to examine the detailed affidavit in support of the ex-parte application for an interim injunction, as well as the affidavit in reply, he would have understood the background to the whole dispute, and would then have appreciated the parameters of the injunction sought. Counsel cited paragraphs 9 to 11 of the appellant’s affidavit in support of ex-parte summons for an order of injunction and stated that some of the appellant’s functions as they relate to this election period include (i) preparing to participate as the presidential
candidate in the Presidential election slated for 20th January, 2015, (ii) discussing possible alliances with other political parties, (iii) talking to Mr. Rupiah Banda over his role in the Presidential election and (iv) chairing the MMD NEC meetings whenever the same were duly convened.
The learned counsel sharply criticised the Judge below for failing to look beyond the ex-parte order which was granted by himself. According to counsel, the Judge should have evaluated the evidence and legal arguments presented before him in the form of affidavit evidence. Counsel argued that the Judge employed a flawed approach which went against the established rules and authorities on how to write a judgment. The learned counsel quoted the case of Zambia Telecommunications Company Limited v. Mulwanda and Others,8 we set out the features of a good judgment. Counsel also contended that the process of making findings of fact is a critical and central consideration in writing a judgment. The author, Joyce J. George of the book Judicial Opinion Writing Handbook1, was quoted to buttress the point.
In further arguing on the point, the learned counsel accused the learned Judge below of neglecting, in a general way, the basic tenents of good judgment writing. The learned counsel cited the case of The Minister of Home Affairs and Another v. Habasonda9 where this Court stated, among other things, that every judgment must reveal a review of the evidence, where applicable, summary of the arguments and submissions if made, findings of fact, the reasoning of the Court on the facts, the application of the law and authorities, if any, to the facts and finally, the conclusion. Counsel also referred us to the case of Zambia Breweries Plc v. Sakala10, which was to the same effect.
In the present case, counsel argued, the Ruling of the Court below did not reveal a review of the affidavit evidence, neither did it show any reasoning by the Judge on the facts and the application of the law to the facts as presented in the affidavit evidence. According to counsel, the Judge merely reproduced the affidavit evidence, the oral submissions of counsel and ended there. What is more, counsel argued, the Judge proceeded to attack the ex-parte order of injunction which he himself had granted in the first place.
More pointedly, counsel argued that had the Judge below held the view that the ex-parte order of injunction did not disclose the parameters of the defendant’s interference with the appellant’s performance of his functions, the Judge ought not to have granted it in the first place. In essence, counsel argued, the application was not considered on its merits.
We pause here to state that in his oral submission on the same point, the learned State Counsel Mutale, reinforced this argument stating that in the 13 paged Ruling subject of the present appeal, the learned Judge only devoted three pages in his effort to resolve the issues before him. According to the learned State Counsel, the Ruling as a judicial decision should have conformed with well-established principles relating to judgment writing; that this Ruling, failed in a hugely visible way to address the issues placed before the learned Judge.
In their written arguments, the learned counsel then proceeded to set out the relevant considerations for the grant of
interlocutory injunctions as set out in the case of American Cyanamid Company v. Ethicon Limited11, namely:-
- whether there is a serious question to be tried
- whether damages would be adequate to compensate the plaintiff
- whether the balance of convenience tilts in favor of granting the injunction to the plaintiff
- whether the plaintiff has come to court with clean hands.
The learned counsel for the appellant then proceeded to consider each of these points in turn. As regards the requirement of a serious question to be tried, the learned counsel argued that there are in the present case, serious issues to be tried gyrating around the absence of notice to members of NEC for the meeting held on 18th November, 2014 where the appellant was purportedly suspended and the issue of Mr. Rupiah Banda being adopted as Presidential candidate; whether or not the said meeting of 18th November, 2014 was a continuation of the earlier meeting of the
16th of November, 2014 and Mr. Rupiah Banda’s candidature and the MMD Constitutional provisions.
In this regard, according to the learned counsel, there was compliance with the requirement as to establishing serious questions to be tried at the hearing as laid out in Preston v. Luck12 as endorsed in Ndovi v. National Educational Company of Zambia Limited13, and subsequently affirmed in Zambia State Insurance Corporation Limited v. Dennis Mulikelela14.
As regards adequacy of damages, the learned counsel cited the case of Shell and BP Zambia Limited v. Corindaris and Others15 where we stated 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 injury means injury which is substantial and cannot be adequately remedied or atoned for by damages, not injury which cannot be possibly repaired.”
Counsel argued that the appellant stood to suffer irreparable injury which cannot be atoned for by damages.
Counsel also submitted on the balance of convenience. Here, it was their argument that the balance of convenience tilts in favour of granting the appellant an injunction so that the status quo is maintained while he challenges his allegedly illegal suspension. They cited the case of Zimco Properties Limited v. Lapco Limited16 and quoted out statement that:-
“The balance of convenience between the parties as to whether to grant an injunction will only arise if the harm done will be irreparable and damages will not suffice to recompense the plaintiff for any harm, which may be suffered.”
In ground two, which is substantially related to the first ground, the appellant’s grievance was that the learned Judge in the Court below should not have held as he did, that the respondent could not be held responsible for failing to comply with a prohibition that was not specifically spelt out. Counsel contended in their written heads of argument that there was sufficient evidence showing that the prohibition sought related to implementation of the resolution of the disputed NEC meeting of the 18th of November, 2014, where the appellant was suspended as MMD Presidential. In what obviously was a repeat of an issue
already traversed in ground one, counsel complained that the learned Judge appeared to have confined himself to his reading of the ex-parte order of interim injunction and ignored the affidavit evidence and oral submissions of the appellant which sufficiently demonstrated that the appellant was seeking to forestall the implementation of the resolution of the NEC meeting of 18th November, 2014.
Counsel argued that the learned Judge appeared to have taken issue with the manner in which the ex-parte interim injunction which he signed was drafted; that the Judge should have questioned the wording of the order before he signed it, and if he was of the view that no definite terms, parameters, or prohibitions had been stated in the said order, he should have declined to grant it. Counsel went on to state that the learned Judge granted the order after he had studied the application, the originating process, the affidavit evidence and after fully understanding what he was restraining the respondent from doing. The parameters of the injunction should have been based on the Judge’s own evaluation of the application before him.
More purposely, counsel argued that an ex-parte order of injunction has a life span up to the hearing of the matter inter partes. After receiving evidence and submission from both parties, the Judge is not bound to grant the reliefs as contained in the ex-parte order of injunction. Where, after evaluating the evidence at inter parte stage, the Judge feels that the parameters of prohibition are not adequately spelt out in definite terms, the Judge has power under Order 3 rule 2 of the High Court Rules to vary the terms of the injunction to conform with the evidence presented before him.
In ground three, the learned counsel attacked the conclusion by the learned Judge below that the interlocutory injunction the appellant sought had not disclosed whether it related to the disciplinary proceedings or the party presidential campaigns.
The learned counsel again accused the learned Judge of having adopted a parochial approach, confining himself to interpreting the ex-parte order which he had granted and in the process failing to comprehend what the interlocutory injunction related to. Counsel further argued that had the learned Judge
addressed his mind to the contents of the Affidavit he would have discovered that the injunction related to the disciplinary proceedings against the appellant, and that nowhere in his Affidavits or originating process did the appellant suggest that an injunction be issued against the party’s presidential campaigns. Counsel then reiterated the point that the Ruling of the lower Court fell short of the basic requirements of a good judgment.
The respondent strenuously opposed the appeal and supported the Ruling of the lower Court to the extent that it declined to grant the interlocutory injunction sought by the appellant.
Written heads of arguments filed against the appeal were relied upon by the learned counsel for the respondent. Mr. Shonga, State Counsel, augmented these by oral submissions.
In relation to ground one of the appeal, State Counsel Shonga gainsaid the submissions made by counsel for the appellant, asserting that paragraphs 9 to 11 of the affidavit in support constitute the appellant’s version of events which is sufficiently
rebutted in paragraphs 11 and 12 of the affidavit in opposition. It was Mr. Shonga’s submission that the appellant had come to court seeking only one injunctive relief, namely for the Court to order that:
“the defendant and his agent whosoever called are restrained from interfering with the plaintiff’s right to perform the functions of party President of the Movement for Multiparty Democracy.”
Mr. Shonga, State Counsel, then referred to page 70 of the record of appeal as regards the functions of the President of MMD. The learned State Counsel asserted that the appellant had the opportunity to argue his case before the lower court during which he did not allude to his right to contest the Republican Presidential elections. State Counsel submitted that the arguments relating to ground one bear no relationship to the ground and cannot support that ground.
The learned State Counsel defended the Ruling of the learned Judge below saying the Judgment complied with the recommendation on good judgments as stated in Zambia Telecommunications Company Limited v. Mulwanda and
Others8. After submitting that the cases of The Minister of Home Affairs and Another v. Habasonda9 and that of Zambian Breweries Plc v. Sakala,10 were distinguishable, the learned counsel posited that the fact that the learned Judge below did not prepare his judgment the way the appellant would have liked him to, did not take away the fact that it was a good ruling at law.
The learned State Counsel concluded his submissions on this ground by maintaining that the appellant’s arguments regarding a serious question to be tried; whether the appellant may be adequately compensated by an award of damages; where the balance of convenience lies, and whether the appellant had come to court with clean hands were issues that were not raised in the Court below and that appeals are not about having second bite at the cherry.
On ground two, State Counsel Shonga, indicated that he would rely on the preliminary issue raised. Counsel submitted that the injunction in the court below was not about a challenge on the resolution of the NEC to adopt Mr. Rupiah Banda as the MMD’s
Presidential candidate. State Counsel asserted that in the event that the preliminary issue was not sustained, he would argue on this ground as follows: that where there is an ex-parte injunction, a court could either sustain or discharge the injunction upon inter parte hearing. In this case, the appellant requested the Court to uphold the ex-parte injunction as couched when it was granted ex-parte. The Court, according to State Counsel Shonga, could not be faulted considering the manner in which the ex parte order was drafted since that was what was sought by the appellant.
The learned counsel then quoted Order III, Rule 2 of the High Court Rules, Chapter 27 of the laws of Zambia to support the proposition that the Court below did have discretionary power to vary the terms of the injunction. Counsel then referred to the case of Reckitt & Coleman Products Limited v. Burden Inc.17 and quoted a passage which is to the effect that the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right is uncertain and will remain uncertain until final judgment is given in the action.
After quoting a passage in the judgment of Kerr LJ. in Cambridge Nutrition Limited v. BBC,18 to buttress the point he made that the case of American Cynamid11 does not establish principles of general application and must therefore not be treated as a statutory definition, counsel finally submitted on this ground that it was neither just nor convenient for the Court below to sustain the injunction which was granted ex-parte to the appellant as the appellant sought an injunction in general terms and which did not have a bearing on other matters not subject to the dispute before the Court, including the adoption of Mr. Rupiah Banda, as Presidential candidate for the MMD.
In respect of ground three of the appeal, State Counsel Shonga, supported the reasoning of the learned Judge in the Court below, where he stated that the appellant should have set out in definite terms, what the defendant should be precluded from doing during the subsistence of the injunction he seeks. Counsel argued that the case of Lock International Plc v. Beswick and Others19, which the learned Judge relied on, was a proper authority for the position he took.
State Counsel Shonga then submitted that the blame for what appeared to be a badly drafted ex-parte order lay squarely on the appellant. In declining the ex-parte order as drafted, the Court was well within the provisions of Order 29/L/1 of the White Book which states that:
“In granting a mandatory injunction (whether interlocutory or finally) the court ought to be able to tell the enjoined party exactly what it has to do in order to conform with it.”
The learned counsel ended on a melancholous note that if this were a normal prohibiting injunction the difficulties that were now before the Court would have been avoided. He prayed that the whole appeal be dismissed.
In her very brief submissions in reply, Mrs. Mutti, posited that a perusal of the supplementary record of appeal containing the record of proceedings in the Court below, shows that no arguments regarding the parameters of the injunction were addressed to the court. On the endorsement on the writ and the statement of claim, Mrs. Mutti submitted that they were being alluded to, to show that the appellant had an arguable case.
On the 15th December, 2014, the appellant’s advocates filed in supplementary heads of argument in support of the appeal. The submissions were all in addition to those made under the first ground of appeal.
Counsel submitted that since the learned Judge in the Court below failed to deliver a Ruling on the merit, this would have been a fit case, in some cases, to have sent back to the learned Judge to consider the application on the merit and render the ruling in line with the guidelines for the grant of injunctions.
The learned counsel pleaded, that given the urgency and the exceptional circumstances of this case and the public policy consideration associated with it, the Court should consider all the affidavit evidence before it and determine the application without having to send the matter back to the High Court. The learned counsel relied on this submission of a rehearing on the evidence on the case of Attorney General v. Kakoma20. The learned counsel also called in aid the New Zealand cases of Da Costa v. Cockburn Salvage and Trading PTY Limited21 and Fox v. Percy22.
We have paid the closest attention to the affidavit evidence as well as the rival submissions of the parties. Important questions of principle are raised by the highly unusual facts of this case. Although the appellant and the respondent are the visible dramatis personae, there are various other interests, visible and not so visible, in this dispute. There is conflicting affidavit evidence and the issues are highly contentious. In determining this matter, therefore, we do not intend to usurp the powers of the lower Court to determine conflicting questions of fact or to determine the matter in finality.
The overarching issue we have to determine is whether, all circumstances taken together and considered, the learned trial Judge erred in declining to grant an interlocutory injunction to the appellant pending the determination of the action the appellant has commenced in the High Court, challenging, among other things, his suspension as Party President of the MMD.
In relation to ground one of the appeal where the learned Judge lamented over the lack of parameters of the interference sought to be prohibited, the question we ask ourselves is whether, on the
documentary evidence before him coupled with the submissions of the parties’ respective advocates, there was sufficient material to give the learned Judge a clear indication and direction as to the nature of the relief that the appellant was seeking.
The appellant alleges and the respondent denies, that such sufficient information was before the learned trial Judge. Counsel for the appellant argued that the learned Judge in the court below premised his finding on the evaluation of the ex-parte order of interim injunction, and by so doing, he erred. Further, that the learned Judge did not consider the evidence before him and that if he had cared to do so, he would have found the parameters. The respondent of course, denies that there was any misdirection and that the appellant asked something specific, namely extending the interim injunction which the court had earlier granted ex-parte.
We have examined the documents on the record; in particular, the Ruling of the Court below. On page 8 of the Record of Appeal (R3 of the Ruling), the learned Judge began his ruling with a statement on the nature of the application before him. He quotes up
to a certain extent, what appears to be the wording of the ex-parte order which is at page 94 of the record. What is equally clear to us is that the wording of the ex-parte order is similar to the wording of the ex-parte summons at page 27 of the record of appeal. The same wording is used by the learned Judge on page 16 of the record of appeal (at R16). We are not able, from the record, to come to the definite conclusion, which the appellant, and to some extent the respondent, do, that in arriving at the conclusion that no parameters of interference with the running of the appellants office as President of the MMD had been furnished, the learned Judge confined himself to considering the ex-parte order. In any case, an application for an injunction is always made by summons. In this case, the learned Judge could most probably have considered the wording of the ex-parte summons, which for all purposes and intents became inter partes after the ex-parte order was granted and endorsed with an inter partes date.
It is for the foregoing reason that we are of the view that the criticism that the learned Judge focused solely on the ex-parte order that he had earlier granted, does not appear in the present
circumstances, justified. The broader argument regarding reliance on the wording either of the ex-parte summons or on the ex-parte order however remains.
In fairness to the learned Judge, when a court is moved by summons for a specified relief, the judge has in the first place, to focus on the relief prayed for, and to consider whether, on the evidence available before him, the relief sought should be granted.
In this particular case, the relief sought by the appellant was in the summons by which the application was made. The evidence before the Judge was comprised in the affidavit in support together with all the exhibits, the affidavit in opposition together with its exhibits and the affidavit in reply. Furthermore, on the Court’s record, were the writ of summons and the statement of claim. The learned Judge was clearly duty bound to examine all these documents, especially before the grant of the ex-parte injunction, to satisfy himself that there was some material upon which he could base the granting of the ex-parte order before a more mature consideration of the application at inter parte hearing.
It was argued on behalf of the appellant that the learned Judge in the Court below did not interpret any affidavit evidence as regards the appellant’s functions that the appellant wanted to restrain the respondent from interfering with as set out in his affidavit.
A perusal of the appellant’s affidavit in support and reply clearly show what the appellant’s grievance was and the mischief he feared would be perpetuated if an injunction did not issue. There were also the writ and the statement of claim outlining the actions of the respondent which caused sufficient annoyance to the appellant as to prompt him to turn to Court for injunctive relief. We accept the submission on behalf of the appellant that the learned Judge did not interpret, purposefully, the affidavit evidence before him to discern correctly the relief that the appellant was seeking. The functions of the MMD President as set out in Articles 37 and 41 of the MMD Constitution as referred to us by Mrs. Mutti, as well as the letter of suspension annexed to the affidavit in support contain details which should have assisted the learned trial Judge, had he been so minded, to find the parameters of the injunctive relief sought by the appellant. Equally, the affidavit of the respondent in
opposition to the application, particularly, the exhibited minutes of the combined NEC and Members of Parliament meeting held on the
16th and 17th of November, 2014, would have assisted put the contestation between the parties into some perspective prior to the learned Judge’s determining the main matter on the merit.
We agree with the submissions of counsel for the appellant that a proper evaluation of the appellant’s affidavit would have revealed the parameters that the Judge failed to find. Furthermore, at the inter partes hearing, the Judge was at liberty to seek clarification on any issues that he may not have been clear on, including in this case, the issue of the parameters of the injunction.
We also accept the arguments of the learned counsel for the appellant on the relevant considerations in granting of injunctions as set out in American Cyanamid Company v. Ethicon Limited.11 We agree that those considerations should have been foremost in the mind of the learned Judge in considering whether or not to grant the injunction.
In our estimation, the question of the parameters of the injunction should have come after the Judge’s analysis as to whether or not an injunction could issue in those circumstances. It seems to us logical that the first consideration should be whether the injunction can or cannot, on the facts given and the circumstances of the case, and then after the parameters of that injunction if it can indeed be issued.
We note from the supplementary record of appeal that arguments around some of the necessary considerations in the grant of an injunction were addressed to the learned Judge during the inter partes hearing. Apart from the ipse dixit reproduction of those arguments, the learned Judge made no allusion in the critical part of the Ruling, to the arguments submitted to him.
In any case, as rightly submitted by counsel for the appellant, Order III (2) of the High Court Rules Chapter 27 of the laws of Zambia provides in clear terms that:-
“Subject to any particular rules, the Court or judge may, in all causes and matters, make any interlocutory order which it or he considers necessary for doing justice, whether such order has been expressly asked by the person entitled to the benefit of the order or not.”
It is not expected of a judge tasked with dealing with a matter as urgent and as emotive as an application for an injunction, to adopt a mechanical posture. The judge ought, at the inter partes stage, to take advantage of the parties or their representatives, to clarify all issues including the parameters of the relief sought, before giving his decision.
The issue of the style, format and content of the learned Judge’s Ruling was criticised by the learned counsel for the appellant, as failing to meet the structure of a judgment as suggested by Mwanamwambwa, JS, in the case of Zambia Telecommunications Company Limited v. Mulwanda and Others8 The Ruling was also attacked for its failure to make a proper finding of facts as Joy J. George in Judicial Opinion Writing1 recommends. Other cases cited to justify the submission that the judgment was wanting in various respects, were the case of The Minister of Home Affairs and Another v. Habasonde9 and Zambia Breweries Plc v. Sakala10. State Counsel Shonga, for the respondent, however, held a contrary view stating that:-
“The fact that the learned Judge did not prepare his judgment the way the appellant would have liked him does not take away the fact that the ruling is good at law.”
We have familiarized ourselves with the style, and the substance of the Ruling of the Court below. It does contain the minimum requirements of a judgment. We must state that judgments will vary in style, aptness, perspicuity and elegance of diction, depending on a variety of factors, including the judge’s own disposition, the subject matter of the judgment, the complexity of the arguments and whether or not, a matter before the judge is dismissed on a technical point, as appears to us to have been the case with the application before the learned trial Judge. While we fully ascribe to the tenets of good judgment writing as alluded to in all the authorities cited to us, we are reluctant to go so far as to accept, as entirely justified, the vociferous criticisms against the Ruling subject of this appeal.
As we have already pointed out, ground one is bound to succeed on the basis that we set out earlier.
We now turn to ground two of the appeal. Here, it was contended by the appellant that what the appellant sought to forestall was the implementation of the purported resolution of the NEC meeting of the 18th of November, 2014 by which he was suspended.
It appears to us that the arguments on this ground are not dissimilar to those advanced under ground one. No purpose will be served to repeat them. The one argument that appears different under this ground is that the learned Judge signed the ex-parte order on the basis of the same documents submitted to him by the appellant. The only documents that were not with the learned Judge at that stage were the affidavit in opposition and the affidavit in reply.
For the appellant, it is contended that the learned Judge must have satisfied himself with the appellant’s application, at least, on a prima facie basis that in the absence of a strong and compelling argument from the respondent, or the production of new contradictory evidence, the injunction would stand. At that stage,
according to counsel for the appellant, the learned Judge below should have been satisfied about the parameters of the injunction.
We already recited the arguments of counsel for the appellant on this point which were to the effect that the interim injunction which is temporary and, is granted at first glance and therefore, the learned Judge cannot be faulted in so granting the injunction in favour of the applicant. Counsel submitted that Judge is however, perfectly entitled to discharge it upon assessment of addition matters.
Mrs. Mutti, in her reply to this argument, pointedly argued that the supplementary record of appeal does not show that the issue of the parameters of the injunction was ever raised, by either counsel or by the Court.
We agree that following the grant of an interim injunction ex-parte, the learned Judge should have recorded what change had occurred in the evidence before him which prompted him to discharge of the ex-parte order. Such change could be either in the affidavit evidence, the submissions of counsel or his own changed
perception. This is regrettably not part of the record of the learned Judge in the Court below. This ground of appeal succeeds to the extent indicated.
Under ground three, the contention is that it was a misdirection on the part of the Judge below to have insisted that the interlocutory injunction the appellant sought had not disclosed whether it related to the disciplinary proceedings or the Party Presidential campaigns.
The arguments under this ground have already been covered under grounds one and two. Mrs. Mutti, in making her supplementary arguments in support of this ground indicated, and quite candidly in our view, that this whole appeal is about the Republican presidency. The injunction being sought is to stop the implementation of the resolution of the NEC which was passed on the 18th of November, 2014, which resolution among other things, suspended the appellant and adopted Mr. Rupiah Banda as the MMD’s presidential candidate.
In our judgment, there cannot be any doubt that the issues of the suspension of the appellant from the MMD Presidency and the nomination of Mr. Rupiah Banda as the MMD Presidential candidate in the forthcoming elections are not divorced. Their symbiotic relationship is evident from the documents on file.
This ground of appeal also succeeds.
We now turn to consider the respondent’s cross-appeal which, as we indicated earlier on, has three grounds.
In ground one of the written arguments of the cross-appeal, the respondent argues that the lower court erred in failing to find that the appellant was not entitled to the grant of an interlocutory injunction on account of there being no evidence that he would suffer irreparable harm.
Learned State Counsel Shonga, cited the well-known decision in Shell and BP v. Conindaris and Another,15 where the court reiterated the right to relief ought to be clear and the injunction must be necessary to protect the plaintiff from irreparable injury.
State Counsel argued that had the court below pronounced itself on whether the appellant had shown evidence of irreparable injury, the court would have concluded that none was advanced.
When State Counsel Shonga, made his oral submissions, he advisedly abandoned this ground, and indicated that grounds two and three would be argued as one.
The learned counsel proceeded to argue under ground two and three that the court below erred in fact and in law by failing to find that a prohibitory injunction may not be employed to deal with acts that have already occurred.
He submitted that the scope of a prohibitory injunction is restricted to future occurrences, and it may not be used to deal with events that have occurred in the past. He cited the case of Shepard Homes Ltd. v. Sandham24 as authority for this proposition. Counsel further argued that what the appellant sought to be confirmed at the inter partes hearing, is couched in the fashion of a prohibitory injunction which cannot be employed to restore the appellant to his office.
The learned State Counsel then moved on to argue that the Court erred in not finding that what the appellant sought was a mandatory injunction and also erred by failing to find that the appellant was not entitled to a mandatory interlocutory injunction as he had failed to provide the court with a high degree of assurance that the main matter would succeed.
The learned State Counsel referred us to Order 29/1A/2 of the White Book, 1999 Edition, which makes a distinction between a prohibitory and a mandatory injunction.
Counsel further pointed out that as at the date the appellant sought to obtain an ex-parte injunction, he had already been suspended. The learned State Counsel quite correctly submitted that “it is only a mandatory injunction that was capable of undoing the suspension of the appellant from his position as MMD President”.
Mr. Shonga then referred to Halsbury’s Laws of England2 on mandatory injunctions. He also cited Order 29/L/1 of the White
Book on what a court must take into account when granting a mandatory injunction.
In his response, State Counsel Mutale, submitted that all the three grounds of cross-appeal are misconceived and should be dismissed. He pointed out that a cross-appeal should be a challenge to a decision made by a Judge. All the three grounds in this case attack issues on which the Judge made no findings.
He submitted that the Court has been taken on a speculative journey to deal with non-issues. Having so submitted, State Counsel Mutale took advantage of the respondent’s arguments on ground three and submitted that regardless of the manner in which the order of injunction was couched, it was now clear on a perusal of the evidence on record, that what ought to have been granted, was a mandatory injunction. Counsel further submitted that on the basis of the gross injustice and the illegalities occasioned against appellant following the NEC/Members of Parliament meeting on the 18th of November, 2014, which if they continue will be irreparable; the appellant is entitled to a mandatory injunction.
Counsel argued that the appellant stood to suffer grave, irreversible and irreparable injury arising from the events of the 18th of November, 2014 when a decision was taken to sideline the appellant from consideration as a Presidential candidate, and the idea conceived and implemented totally disregarding the appellant’s accrued rights that he could equally have aspired to be a presidential candidate. He submitted in these circumstances, a mandatory injunction was appropriate.
State Counsel Mutale, further submitted that it was within the powers of this Court to correct the injustice that was caused to the appellant by rehearing the matter and ordering that a mandatory injunction be granted. He relied on Halsbury’s Laws of England2 which states that:-
“A mandatory injunction may be granted even though the act sought to be restrained has been nearly or entirely completed before the action is began, but it will only be granted in such cases to prevent any serious damage.”
State Counsel reiterated that the facts on record do justify such an injunction and it is within the powers of the Court to do so.
Mrs. Mutti, finally, referred us to the case of Fellows and Sons v. Fisher25 in regard to the appellate court’s power to rehear a matter.
In reply, State Counsel Shonga merely reiterated the arguments he had made earlier and prayed that the cross-appeal be upheld.
We have heard and considered the arguments by counsel on both sides regarding the cross-appeal. It is clear that all the grounds of appeal canvassed in the cross-appeal are illusory and fanciful. The arguments in support of the cross-appeal by State Counsel for the respondent are, in all respects, inapropos. They urge us to overturn the decisions of the Judge below which he did not make. We entirely agree with State Counsel Mutale that this was an unwarranted fishing expedition. We dismiss all the grounds of cross-appeal.
Before we conclude we wish to deal with the issue that the appellant’s counsel raised, namely, that we should re-hear the matter on the evidence before us and make an appropriate order.
The learned counsel for the appellants referred us to the case of Attorney General v. Kateka26 where at page 216 – 217 it was stated that:-
“this court observed that the trial judge’s whole approach to the question of damages was wrong and could not be supported. But this court asked itself the question whether it should send back the matter to the lower court, so that damages could be assessed on proper principles or whether since the court had all the relevant facts before it, it was not in as good a position as the trial judge to resolve the issue. This court answered the question in the affirmative and also observed that it would not do the parties service if it were to involve them in the expense which would in incurred if the matter were sent back on the issue of damages.”
The learned counsel also cited the two New Zealand cases which we alluded to earlier to support the same proposition.
We are satisfied that we have sufficient power to deal with the matter in the manner suggested by the learned counsel for the appellant. We are also not unmindful that under section 25 (1) of the Supreme Court Act Chapter 25 of the laws of Zambia, we have vast power to determine a matter in place of the High Court.
All circumstances considered, we are of the view that on the evidence before us, the appellant has made out a strong case to
warrant us to order a mandatory injunction in his favour. We, therefore, order that the respondent be, and is hereby directed by himself, his agents, servants and whomsoever, to forthwith restore the appellant as the MMD President. We further order that the respondent by himself, his agents, servants and whomsoever be and is hereby restrained from further implement the resolutions of the disputed National Executive Committee and Members of Parliament Meeting held on the 18th of November, 2014, pending the determination of the main matter by the High Court.
In sum, the preliminary issues by the respondent are dismissed, the appeal succeeds on all grounds and the cross-appeal is dismissed.
Each party shall bear their own costs both here and in the court below.
L. P. Chibesakunda
ACTING CHIEF JUSTICE
SUPREME COURT JUDGE
G. S. Phiri
SUPREME COURT JUDGE
M. E. Wanki
SUPREME COURT JUDGE
M. Malila, SC
SUPREME COURT JUDGE
R. M. C. Kaoma
SUPREME COURT JUDGE
ACTING SUPREME COURT JUDGE