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AHMED ABAD v TURNING AND METALS LIMITED (1987) Z.R. 86 (S.C.)
|SUPREME COURTNGULUBE, D.C.J., GARDNER AND SAKALA, JJ.S.21ST MAY AND 29TH JUNE,1987.
(S.C.Z. JUDGMENT NO. 13 OF 1987)
|Civil procedure - Interlocutory injunction - Damages adequate remedy - Whether injunction available.
Civil procedure - Interlocutory injunction - Grant having effect of determining action against the future interests of one party - Whether appropriate.
|The appellant agreed, as part of a wider agreement, to buy a trailer from the respondent company. When the agreement fell through the appellant took possession of the trailer. The respondent obtained an interim injunction ordering the appellant to return the trailer. The appellant appealed against the order to discharge the injunction and sought a mandatory order that he be required to pay the respondent the purchase price and the respondent release the trailer and documents of title to him to enable him to register the trailer in his own name.
(i)An injunction is inappropriate when damages would be an adequate remedy.
Turnkey Properties v Lusaka West Development Company Limited applied.
(ii)An injunction should not be granted if the effect would be to determine the outcome of the action against future interests of a party who might be successful at the trial.
(1)Shell and BP Zambia Limited v Conidaris and Others (1975) Z.R. 174
(2)Turnkey Properties v Lusaka West Development Company Limited (1984) Z.R. 85.
For the appellant:L.P. Mwanawasa, Mwanawasa and Company with S. Sikota, Gibson Chigaga and Company
For the respondent:A.Adam, Solly Patel, Hamir and Lawrence.
|SAKALA, J.S.: delivered the judgment of the court.
On 21st May,1987, when we heard this appeal, we made an order discharging the ex parte interim injunction, refused an application for a mandatory injunction, ordered the action to proceed by way of summary trial and made an order for directions. We said then that we would give reasons later and we now give those reasons.
This is an appeal against an order of a High Court commissioner refusing to discharge an ex parte interim injunction.
For convenience we will refer to the appellant and the respondent as the defendant and the plaintiff company respectively which they were in the court below. The plaintiff company are the manufacturers of, among other things, trailers. The defendant is a businessman by occupation.
The facts of the case were that on 26th September 1986 the defendant and the plaintiff entered into an agreement for the sale and purchase of an uncompleted dwelling house situated at Stand No. 6798, Roma Township, Lusaka at a purchase price of K240,000.00 (Two hundred and forty thousand kwacha). Special conditions 8, 10 and 11 of the contract of sale read as follows:
manager informed him that the company was proceeding with the purchase of the house on terms already agreed.
LET ALL PARTIES concerned attend before the Honourable Mrs. Commissioner Mambilima in Chambers on the 30 day of January 1987 at 9 hours on the hearing of an application on behalf of the above named defendant for an order that the interim injunction made by the Court herein and dated 26th December, 1986 be discharged and that thereafter there be made an order requiring the Defendant to pay and the Plaintiff to accept the sum of K150,000.00, the Plaintiff to release to the Defendant the documents of title necessary to register the trailer in the Defendant's name; and finally requiring the Defendant to give an undertaking that in the event that this court should hereafter be of the opinion that the Defendant is liable to pay any further sums on the price of the trailer the Defendant will without any further let or hindrance pay such sums to the Plaintiff AND THAT the costs of and incidental to this application be costs in the cause.
Turning to the present appeal, counsel for the appellant Mr Levy Mwanawasa argued two grounds of appeal namely that an injunction should not be granted where damages would be an adequate remedy and that the balance of convenience in the present action lies with the defendant if it should be conducted at all. It must be mentioned that after some indication from the court Mr Mwanawasa abandoned arguments which touched on the merits of the case. In relation to the first ground counsel argued that the ruling by the learned High Court commissioner that the trailer remain where it was and be unused was a misdirection in relation to the principle governing the grant of injunctions namely that an injunction should not be granted where damages would be an adequate remedy. In support of this argument counsel referred the court to Order 29/1/5 of the White Book (1979 edition). He pointed out that the writ of summons in the instant case showed that damages would be an adequate remedy as the value of the trailer was known. He argued that in these circumstances the remedy of an injunction was inappropriate as the plaintiff was not likely to suffer unquantifiable damages while the facts of the case indicated that it was the defendant who would suffer unquantifiable damages from the disruption of his business. Turning to the second ground counsel argued that the balance of convenience was in favour of the defendant but, as damages were an adequate remedy the question did not arise at all. He asked the court to assist the defendant to use the trailer if the injunction was dissolved.
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 can never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired'.''
Properties v Lusaka West Development Company Limited, B.S.K. Chiti (sued as receiver) and Zambia State Insurance Corporation Limited (2) the appellant applied in the High Court for an interlocutory injunction to restrain the respondents from selling or damaging property and to restrain them from entering upon land or interfering with the appellant's possession thereof pending the settlement of a dispute concerning a sub-sale. The appellant soughs to continue in possession of the disputed buildings and to continue building during the injunction if granted. The injunction was refused by the High Court. The appellant appealed against that refusal to the Supreme Court. Ngulube, D.C.J., delivering the judgment of the court had this to say at page 88:
An interlocutory injunction is appropriate for the preservation or restoration of a particular situation pending trial; but it cannot, in our considered view, be regarded as a device by which the applicant can attain or create new conditions, favourable only to himself, which tip the balance of the contending interests in such a way that he is able, or more likely, to influence the final outcome by bringing about an alteration to the prevailing situation which may weaken the opponents' case and strengthen his own.''