Petrolink Limited v Sydney Chisanga and Anor (NO.263/2022) (12 April 2024) – ZambiaLII

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO.263/2022 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN 2 1 PETROLINK LIMITEri APR 2024 APPELLANT AND SYDNEY CHISANGA 1 RESPONDENT ST ALPHA ENTERPRISE LTD 2ND RESPONDENT CORAM: Ngulube, Muzenga and Chembe, JJA On 27th March 2024 and 12th April 2024 . . For the Appellant Mr. T. M. Chabu - Messrs Terrence Chabu & Co. . . For the Respondent Ms. N. Mulenga - Messrs Isaac & Partners JUDGMENT CHEMBE, JA delivered the judgment of the Court Cases referred to: 1. Afritec Asset Management Company Limited and another v The Gynae and Antenatal Clinic Limited and another (Selected Judgment No. 11 of 2019) 2. Vangelatos and Vangelatos v Metro Investments Limited and Others (Selected Judgment No. 35 of 2016) 3. Lillian Chuma Mwanapapa and Patel Chibba Jagdish (appeal no. 185/2016 4. July Danobo T/A Juldan Motors v Chimsoro Farms Limited (2009) ZR 148 s. NFC Mining PLC v Techpro Zambia Limited (2009) ZR 236 6. Acces Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture Appeal No. 71 of 2014 7. Charles Mushitu v Swift Capital Limited CAZ Appeal No. 110/2022 1.0 INTRODUCTION 1. 1 This Notice of motion emanates from a ruling of M ulanda J dated 14th June 2022 in which she dismissed the application for an order of interlocatory injunction. 2.0 BRIEF BACKGROUND 2.1 The Appellant, who is the plaintiff in the Court below, commenced an action against the Respondents in which it sought a declaration the decision to terminate the tenancy agreement relating to some filling stations was unlawful and was made in bad faith. The Appellant also sought an order of injunction to restrain the Respondent from interfering with its business premises. 2.2 The Appellant had earlier successfully challenged the termination of the tenancy agreement under cause No. 2020/HK/224 in which it was held that the 2nd Respondent had not complied with the Landlord and Tenant (Business Premises) Act, chapter 193 of the laws of Zambia. 2.3 Following the judgment from the Kitwe High Court, the Respondents issued a fresh notice to terminate the tenancy agreement in accordance with the Act and sought to evict the Appellant. 2.4 After hearing the application for an order of interlocutory injunction, the learned Judge in the Court below dismissed the application on the ground that the Appellant had failed to demonstrate that there were triable issues in the case and that the action had no real prospects of success. 2.5 Aggrieved with the Ruling of the Court below, the Appellant launched the current appeal advancing the following grounds; 1. The Judge below erred in law and fact when she held that the Appellant had failed to demonstrate that there were triable in the case. 2. The Judge below erred in law and fact when she held that the Appellant had failed to show that it had real prospects success. 3. The Judge below erred in law and fact when she held that the Appellant had accrued rental arrears in the sum of K269,093. 71 as at 31st March 2021. 4. The Judge below erred in law and fact by dismissing the application an interlocutory injunction and by discharging the interim order of injunction which was granted exparte to the Appellant on 30th March 2021. 3.0 THE MOTION 3.1 Before the appeal was heard, the Respondents filed a notice of Motion to raise a preliminary objection on a point law pursuant to Order VII Ru le 1, Order XIII Rule (5) ( 1) and Order 1 Rule 1 of the Court of appeal Rules on the following grounds: 1. Whether this court has jurisdiction to hear and determine the appeal against the refusal of an interlocutory injunction in view of the holding by the Supreme Court in the case of Afritec Asset Management Company Limited, CPD Prop erties Limited v The Gynae and Antenatal Clinic Limited & Kenneth Muuka (Selected Judgment No. 11 of 2019) And that ifit is found that this Honourable Court does not have the Jurisdiction to hear and determine the matter, then the 1st and 2nd Respondents humbly pray that this action be dismissed with costs to the Respondents; OR 2. Alternatively, if this Honourable Court finds that this appeal is properly before it, then the Respondents pray that this appeal be dismissed with costs on the basis that that the record of appeal filed in these proceedings by the Appellant is incurably defective for the following reasons: a) That the Record of Appeal does not contain the complete arguments and submissions made in support and also in opposition to the interlocutory injunction application made in the court below as the 1st and 2nd Respondents' skeleton arguments filed on 6th April 2021 a re not in the Record of Appeal; and/or b) That the record of proceedings/transcript filed in this appeal is incomplete as it does not contain the notes of the hearing that took place on 30th June 2021 which hearing is material to the determination of this appeal. 3.2 In the argu ments in support of the motion, the Respondents relied on the case of Afritec Asset Management Company Limited and another v The Gynae and Antenatal Clinic Limited and another1 (Selected Judgment No. 11 of 2019) (supra) where the Supreme Court guided that an appeal does not lie following the dismissal of an application for an interlocutory injunction but the application should be renewed before a single judge of the appellate court. 3.3 We were u rged to follow the above authority and find that the appeal was not properly before us. The Respondents also referred to the case of Vangelatos and Vangelatos v Metro Investments Limited and Others2 where it was held that a court cannot exercise a jurisdiction which it does not possess. 3.4 In relation to the second ground, the Respondents submitted that the Court of Appeal Rules had stringent requirements on the contents of a record of appeal. Reference was made to Order X Rule 9 (5) U) of Court of Appeal Rules which provides for the inclusion of notes of the hearing at first instance. It was submitted that the Appellant had failed to include the notes of the hearing before the Registrar and the skeleton arguments thereby rendering the record of appeal incurably defective. 3.5 In support of the above argument, we were referred to the cases of Lillian Chuma Mwanapapa and Patel Chibba Jagdish3 , July Danobo T / A Juldan Motors v Chimsoro Farms Limited4 NFC Mining PLC v Techp ro Zambia Limited5 and , Acces Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture6 • 3.6 Based on the above decisions, the Respondents contended that the Record of Appeal was incompetent and the breaches were fatal to the appeal. We were urged to dismiss the appeal with costs. 4.0 THE HEARING 4. 1 The Appellant did not file an affidavit in opposition or skeleton arguments. At the hearing, Counsel for the Appellant was granted. leave to address the court viva voce. He submitted in relation to the first ground of objection that the appeal was not only against the refusal of the application for an order of injunction but also against the fact that the Judge in the Court below addressed the merits of the matter in her ruling. 4.2 The Respondents relied entirely on their written arguments. 5.0 CONSIDERATION AND DECISION 5.1 We have carefully considered the motion, the affidavit evidence and the arguments for and against the motion. 5.2 The Ruling appealed against is one where the Judge in the court below declined to grant the Appellant's application for an order of injunction. The Supreme Court in the case of Afritec Asset Management Company Limited & another v The Gynae and Antenatal Clinic Limited and another (supra) guided that where an application for an order of interlocutory injunction is declined, the applicant's recourse lies in renewing the application before a single Judge of the Court of Appeal and not in launching an appeal. 5.3 In the case of Charles Mushitu v Swift Capital Limited7 we had occasion to the issue of where such applications lie. In that case we held that such applications which are interlocutory in nature, must be made before a single as a renewed application and not lau nched as appeals. 5.4 We therefore, uphold the objection 1n ground one that the appeal is not properly before us and we lack the jurisdiction to entertain and determine it. In view of this the alternative ground of objection has been rendered otiose. 6.0 CONCLUSION 6.1 Having found that the appeal to be incompetently before us, we dismiss it. Costs shall abide the outcome in the court below. ~ P.C.M. NGULUBE COURT OF APPEAL JUDGE 1 2 APR 2024 Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE 9