Southern African Institute for Policy and Research

Tawela Akapelwa and Others V Josiah Mubukwanu Litiya Nyumbu (Appeal NO.004/2015) [2015] ZMSC 25 (21 May 2015)

Commentary by Mapange Nsapato

Full Case Can be Found HERE

FACTS

The appeal arose from a ruling of the high court after it granted an interim injunction in favour of the respondent in this appeal.

In 2008, the respondent was gazetted as chief of the Mbundu people and established as His Royal Highness Chief Chiyengele of the Mushuwa area in the western province of the Republic of Zambia. On or about October 2014, the appellants together with other persons unknown called a meeting of the Kuta to discuss the dethronement of the respondent on account of alleged misrule of his subjects. The deliberations of the Kuta proceeded without the respondent who, despite the invitation, did not attend on account of what he attributed to ill-health. At the meeting, a decision to dethrone the respondent was arrived at.

Aggrieved by the decision to dethrone him, the respondent commenced this action in the High court challenging the decision as being contrary to section 4 of the Chiefs Act, Chapter 287 of the laws of Zambia. He sought various orders including an injunction which he obtained pending the determination of the main matter. The appellants appealed against the interim order of injunction.

 

THE LEGAL ISSUES

The main issue to be resolved was whether this was a proper case in which to grant the interim relief of injunction. To determine the main issue, the Supreme Court had to resolve the following issues:

  1. What is a “serious question to be tried’ for purposes of granting an injunction;
  2. What accounts for an injury which cannot be atoned for in damages; and
  3. Whether the adequacy of damages is a mandatory consideration when granting an interim injunction

 

THE HOLDING

The Supreme Court dismissed the appeal and upheld the interim injunction. It held:

  1. There is a serious question to be tried if upon looking at the pleadings and conflicting affidavit evidence a prima facie arguable case is revealed[1]. It is not for the court at this point to try to resolve the conflicting pleadings and affidavit evidence.
  2. An injury which cannot be atoned in damages is one which is irreparable and substantial, not a mere inconvenience.[2]
  3. The consideration of damages as an adequate remedy before granting an interim injunction is mandatory. This is irrespective of the uniqueness of the case or where the ultimate remedy is one that is one that is unrelated to damages.

 

THE SIGNIFICANCE

This decision departs from the Supreme Court’s previous decisions on the applicability of the principles established in the American Cyanamid[3] case. The Supreme Court in its previous decisions on interim injunctions seems to suggest that the principals in American Cyanamid are mere guidelines and not binding on the court[4]. In the present case, the Supreme Court after itemizing the Principles of the American Cyanamid case , held that ‘these considerations be foremost in the mind of any judge considering whether or not to grant an injunction’.[5] In this case the Supreme Court makes the application of principles of American Cyanamid mandatory[6].

Furthermore, the Supreme Court had the opportunity to rule on whether the consideration for damages as an adequate remedy was mandatory in all cases. There is overwhelming dicta post the American Cyanamid case, to support the view that in certain cases, damages must not be a factor in the determination of whether or not to grant an interim injunction[7]. The Supreme Court recognized this rising school of thought, but rejected the same as being an evolving law which has not yet crystalized into a mandatory norm. This is in line with the historical foundations of an injunction being an equitable remedy as developed by the court of chancery.[8] It follows therefore, that where the common law remedy of damages is adequate no injunction should be granted.

The present case sets out the principles a court must consider when hearing an application for an interim injunction. The case has further confirmed that consideration of the adequacy of damages is mandatory when granting an interim injunction.

[1] See the following cases for further guidance on an arguable case: Preston v Luck (1884) 27 Ch.D,; Zambia State Insuarance Corporation limited v Dennis Mulikelela (1990-1992) ZR 18,; Harton Ndove v. National Educational Company Of Zambia Limited (1980) ZR. 184.

[2] See Shell BP Zambia Limited v Conidaris and others (1975) ZR 174 and Communications Authority v. Vodacom Zambia limited (2009) ZR. 196.

[3] American Cyanamid Co. v Ethicon Limited (1975) 1 ALL ER 504.

[4] See Tommy Mwandalema v. Zambia Railways Board (1987) ZR. 65; Shell BP Zambia Limited v Conidaris and other (1975) ZR 174 and Communications Authority v. Vodacom Zambia (2009) ZR. 196.

[5] At page 21 of the judgment under commentary.

[6] The Supreme Court itemized these principals as follows: 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 favour of granting the injunction to the plaintiff, and whether the plaintiff has come to court with clean hands.

[7] Evans Marshall& Co. v Bertola SA (NO.1)(1993) 1 WLR 349, Moonda Jane Mungaila Mapiko and Another v. victor Mukuba Chaanda(2010)ZR. Volume 2, 416.

[8] See J. Parks, A History of the Court of Chancery.

Maano alazwa amukasumbwa

Translation: "Wisdom may be found through observation of even the simplest things"

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