Thomas James Collins v Epiroc Zambia Limited (2024/HK/315) (13 May 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2O24/HK/315 AT THE KITWE DISTRICT REGISTRY HOLDEN AT KITWE (Civil Jurisdiction) BETWEEN: THOMAS JAMES COLLINS PLAINTIFF AND EPIROC ZAMBIA LIMITED Before the Honourable Mr. Justice C. Chanda in Chambers on this 13th day of May, 2025 For the Plaint iff Mr. N. Chaleka, Messrs ECB Legal Practitioners For the Defendant Mr. K. Wishimanga, Ms. K. Nalondwa and Ms. I. Mwanza all of Messrs AMW & Company Legal Practitioners RULING Cases referred to: 1, Ubuchinga Investments Limited v Tecklemicael Menstab & Another Supreme Court Judgment No. 25 of 2014 2. Ndove v National Education Council of Zambia Limited (1980) ZR 184 Legislation referred to: 1, The High Court Rules, Chapter 27 of the Laws of Zambia- Order 27 2. The Rules of the Supreme Court (White Book) 1999Edition -Order 29 1. This is an inter parte hearing of an interlocutory injunction application made by way of summons issued in terms of the provisions of Order 27 of the High Court Rules, Chapter 27 of the Laws of Zambia read together with the provisions of Order 29 of the Rules of the Supreme Court (White -R2Book) 1999 Edition. By this application THOMAS JAMES COLLINS, the Plaintiff herein seeks the confirmation of the interim injunction I granted th on 12 August 2024 against EPIROC ZAMBIA LIMITED, the Defendant Company. In the said interim order the Defendant company, by itself, servants, agents or whomsoever was restrained from grabbing and/ or disposing of the motor vehicle Toyota Landcrusier registration number BAH 1736ZM the subject matter of this application, pending the hearing and determination of this matter. 2. It will be observed that these legal proceedings were commenced on the same day 12th August 2024 but the interlocutory injunction application is only being disposed of now. The delay was born out of my abiding faith in alternative dispute resolution mechanisms in this case being mediation. Immediately the matter came up for inter parte hearing with the concurrence of the parties, the whole matter was referred to mediation. Even after mediation had failed I still allowed the parties more time to engage in an effort to amicably resolve the matter but regrettably, that has failed. 3. Despite the failure of ex cuira settlement negotiations, I do hereby tender my sincere apologies for the delay in the delivery of this ruling after the matter was argued. This was due to both official and personal circumstances beyond my control. 4. This matter is born out of an employee/employer relationship that was enjoyed between the plaintiff and the Defendant over a considerable period of time. A dispute, however, arose after the cessation of that relationship giving rise to these legal proceedings whereby the plaintiff now seeks against the Defendant the following reliefs: 4.1. Gratuity payment for the period of 6 years 10 months that the Plaintiffworkedfor the Defendant. 4.2. Payment of leave days arrears amounting to $4,928.57. -R34.3. An order that the Defendant conveys motor vehicle registration number BAH 17362M which had vested in the Plaintiff at the time of mutual separation; or 4.4. In the alternative, payment of $23,000.00 worth of improvements made on the vehicle with the clear understanding that the vehicle had vested in the Plaintiff and would be conveyed to him. 4.5. An interim order of attachment of motor vehicle registration number BAH 1736ZM to these proceedings until fully determined. 4. 6. An order of interim injunction preventing the Defendant from using state machinery to illegally grab and dispose of motor vehicle registration number BAH 1736ZM until this matter is fully determined. 4. 7. Pre-judgment and post-judgment interest on any amounts that will be found to be due. 4.8. Costs for and incidental to this action. 5. It is clear from the Plaintiff's accompanying statement of claim, that he was prompted to move this application as a result of the Defendant's involvement of the Zambia Police Service in order to avert the risk of a possible criminal prosecution for conversion of property. The allegation was not denied by the Defendant, who in its defence admitted involving the Zambia Police Service to impound the said motor vehicle. Consequently, the Defendant counter claimed the following reliefs: 5.1. An order directing the Plaintiff to return the vehicle to the Plaintiff (Defendant) free of damage and encumbrances. 5.2. In addition to (1) above, payment of damages against the Plaintiff for wrongfully converting the vehicle. 5.3. General damages for breach of contract. 5.4. Special and aggravated damages. 6. I have highlighted the Plaintiff's claims and Defendant's counterclaim set out above as they are germane to the determination of this application. -R47. At the hearing of the application, both parties relied on their respective affidavits in support and in opposition as well as their skeleton arguments. I have carefully considered this application and I have taken into account the affidavit evidence before me as well as the arguments and submissions in respect to their adopted positions. 8. For reasons of maintaining a clear and impartial mind throughout these proceedings, I have refrained from reproducing the parties affidavit evidence and their arguments and submissions which I will only refer to as and when necessary. This is so because, at injunction stage I am only exercising a limited jurisdiction on a prima facie basis as to whether or not to grant an interlocutory injunction. I am precluded from considering the merits and demerits of this matter which will be considered at the trial of this matter. In view of that, I have refrained from reproducing the affidavit evidence and arguments as there is a real likelihood of me prejudging this matter at this stage by making comments on the same. An honest and sober consideration of the underlining arguments and submissions made by the parties, reveals that same are not merely restricted to the interlocutory application but also argues the merits of this matter which I have no jurisdiction to consider and pronounce on. 9. Doing my best in the circumstances of this application, therefore, the Plaintiff's grievance at the moment is that he had more than a legitimate expectation to be sold the motor vehicle in issue and hence went ahead to make certain modifications and improvements on the understanding and assurances by the Defendant that he would be sold same. And such expectation was reinforced by the three (3) months period he was told the process would take for the same to be conveyed to him and hence his continued use after the mutual separation agreement of 14th September 2023. Thus, the Plaintiff is seeking to enforce the "agreement or assurances" to buy the said motor vehicle so that he is not treated -RSdifferently from other Defendant employees who have been sold vehicles before in similar circumstances. 10. The Defendant on the other hand denied ever agreeing to sale the said motor vehicle which sale could only be done in accordance with its company policy on the same. The Defendant insisted that no such approval was made and hence its counterclaim. It was argued in this regard that the Plaintiff had breached clause 12 of his contract of employment which required him to surrender the motor vehicle on cessation of employment. It was therefore submitted that the Plaintiff's application did not meet the standards at law as there was no serious question to be tried and the balance of convenience titled in favour of the Defendant. In addition it was submitted that the Plaintiff would not suffer any injury that could not be compensated by an award of damages and in the circumstances of the case the Plaintiff did not show a clear right to relief as the sale of personal to holder vehicles were done on fulfillment of certain conditions. 11. On the other hand, it was contended on behalf of the Plaintiff that he had disclosed a serious question to be tried in relation to gratuity, ownership of the vehicle and the improvements made thereto. On the aspect of adequacy of damages, I was invited to consider the special circumstances to the effect that a motor vehicle of the Defendant vested to the person who was using it when it clocked 5 years and he had done improvements which could not be found on any other vehicle. It was also submitted that the balance of convenience titled in favour of the Plaintiff who was currently in possession of the said motor vehicle and hence prayed for maintaining the status quo. 12. The principles of law on injunctions are well established and are now settled. I, therefore, agree with the principles restated in all the authorities cited and relied upon by both parties in so far as they related to the matters that fell for determination in those cases. What is trite is -R6that injunctions are temporary remedies which were granted or refused on the subjective discretion of the Court. And in order to ensure that such discretion is judiciously exercised, various principles have been evolved, which have been appropriately referred to by the parties. 13. Even then, these principles are not statutory stipulations but are merely guidelines. This entails that the exercise of the Court's discretionary powers to grant or refuse an injunction, is dependent on the special and peculiar circumstances of each case in aid of a fair and just determination of the matter. Thus, each case is determined on its own peculiar facts and circumstances. 14. In dealing with an application for an injunction made under Order 27 of the High Court rules, such as this application, the Supreme Court in the case of UBUCHINGA INVESTMENTS LIMITED V TECKLEMICAEL MENSTAB & ANOTHER(1) observed as follows: "Evidently, this provision does give the Court power to grant an injunction where property in dispute is in danger of being wasted, damaged or alienated by a party to an action. The order is expressed in the widest of terms because injunctions are equitable and temporary reliefs whose Jurisdiction to grant or not to grant, is left entirely to the discretion of the Judge." 15. The Supreme Court in the above cited case went on to hold that the principles of injunction law, which were cited and relied upon by the parties were not principles of universal application nor were they rigid rules of Court. Rather, these were merely useful guidelines for ensuring that the wide discretionary powers of the Court were exercised in the fairest and most reasonable manner and at the same time achieve the ends of justice. 16. I am, therefore, properly guided to the effect that I must exercise my discretionary powers in the fairest and most reasonable manner as to -R7achieve the ends of justice at this stage of proceedings. The gravamen of the Defendant's contention among others is that the Plaintiff has failed to disclose any serious question to be tried at the trial and there is no proof that the Plaintiff would suffer irreparable harm which cannot be atoned for by an award of damages. 1 7. This Court, had crystalized the principles of injunction law in the case of NDOVE V NATIONAL EDUCATION COUNCIL OF ZAMBIA LIMITEDl2l when Chirwa J, as his Lordship then was held that in an application for an interim injunction, though the Court is not called upon to decide fully on the rights of the parties, it is necessary that the Court should be satisfied that there is a serious question to be tried at the hearing and on the facts there was a probability that the Plaintiff is entitled to relief. 18. I, therefore, proceed to determine whether or not the Plaintiff has established a serious question to be tried at the hearing of the matter. According to the Plaintiff, there was an agreement to sell the said car to him and he was told the process would take three (3) months and was allowed to retain the car. The Defendant has, however, contended that there was no such agreement as any sale ought to be authorized and the Plaintiff was merely allowed to use the car for three months. It is for this reason that the Defendant contended that the Plaintiff had breached clause 12 of his contract of employment by failing to surrender the vehicle on termination and hence seeking damages for breach of contract and also seeking restitution of this car. In addition the Defendant had been emphatic that there was no compliance with the company policy and as such the Plaintiff had not fulfilled those conditions in claiming the right to purchase the said car. 19. I am mindful of the issues to be determined at the trial and not at this injunction stage. Based on the Defendant's own insistence as a stickler to the letter and spirit of its company policy and contract of employment, I am persuaded by the Plaintiff's position that he was given three (3) -RSmonths as a period within which the sale process would be concluded. As such his continued use of the motor vehicle on a balance of probability was with the view of being sold the car. 20. I make this preliminary finding at this stage because the Defendant pointed me to its company policy of disposal of motor vehicles which have clocked five (5) year or covered 250,000 kilometers. I have equally been referred to clause 12 of the Plaintiff's contract of employment which demands the surrender of the motor vehicle on cessation of employment. I have, however, not been referred to any company policy or provision of the contract of employment which makes provision to allow former employees to continue using the car for a period of three months. At this stage it is not deniable that the Plaintiff was allowed use of the car for three (3) months because in the defence and counterclaim, the Defendant is not claiming any loss suffered from September 2023 but specifically from 14th December 2023. This is evident from the particulars of loss set out in the counterclaim at paragraph 42 that the alleged deprivation of same was with effect from December 2023. 21. It is, therefore, plain to see that the Plaintiff has established a serious question to be tried as to whether the three (3) months use of the said motor vehicle after termination of his employment was in order to allow the finalization of the acquisition process. The Defendant had admitted allowing the Plaintiff's use and custody of the said vehicle for a period of three months. However, the Defendant has not shown me the basis upon which its former employee was allowed a gratuitous gesture by a company that strictly abides by its policy and conditions of employment. This gesture reasonably leads to an inference that the Defendant does and did go outside the said policy it is now insisting on which gesture was not shown to have been supported by any policy and was certainly contrary to clause 12 of the contract of employment which demanded unconditional surrender of the motor vehicle upon termination. Looking -R9at what the Defendant has admitted in its papers, which is allowing the Plaintiff use of the motor vehicle, to me raises a serious question to be tried especially that the Plaintiff alleged it was a period he was given for the entire acquisition process to conclude. 22. And if at the trial the Plaintiff succeeds to prove that the three (3) months custody and use of the motor vehicle as a former employee was a prelude to the acquisition process, will the Plaintiff suffer irreparable injury which could not be atoned for by an award of damages if the injunction is not granted? On this aspect the contention of the Plaintiff in more words than one, is that he had an accrued right to purchase the motor vehicle as it clocked five (5) years whilst he was using it and on being assured that it would be sold to him went ahead to effect improvements to the tune of US$23,000.00. Thus, a reasonable representation of acquisition of the motor vehicle was made by the officers of the Defendant who from the affidavit in reply had admired the said improvements and also wished to do the same to theirs as per the whatsapp text messages attached thereto. In short, this motor vehicle is no longer an ordinary motor vehicle as it was given to him due to its upgrade. In addition, the Plaintiff contended that others had acquired the Defendant's motor vehicles in similar circumstances after they clocked five (5) years or covered 250,000 kilometers as per the Defendant's company policy. 23. It is therefore my considered view, on a prima facie basis, that the Plaintiff would suffer irreparable harm by being treated differently from others who are or were similarly circumstanced and thereby lose his accrued right to purchase a motor vehicle on which he has spent a colossal sum to improve. More so that he was assured that he would acquire the said motor vehicle and a process of such acquisition had commenced which was estimated to last three (3) months for which he was allowed custody and use of the said vehicle after termination. -Rl024. For the above reasons and considerations, I am persuaded by the need to be fair and meet the ends of justice, to take into account the fact of allowing a former employee use of a motor vehicle for three (3) months without any disruption of the Defendant's business and exercise my discretion on the available material to grant the injunction sought. 25. I, therefore, order that the interim injunction order I granted on 12th August 2024 BE and IS HEREBY CONFIRMED and shall henceforth operate as an interlocutory injunction pending the hearing and determination of this matter. 26. I also take note of the Plaintiff's complaint of the involvement of the Zambia Police Service of being treated as a common criminal, which involvement was admitted by the Defendant prompting seeking this injunction. In the exercise of my discretionary powers, I award the Plaintiff costs of this application which costs shall be taxed in default of agreement. Leave to appeal to the Court of Appeal is hereby granted. 27. For the further conduct of this matter, I do hereby grant the order for directions in the usual format and set down this matter for a scheduling conference to be held on 15th July 2025 at 09:00 hours. Delivered at Kitwe this 13th day of May 2025 ' ' .r