Eston Kasongo (Suing on behalf of Charles Cherry Mwando by Power of Attorney) v Jackson Mwando (2024/HP/0520) (23 September 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIAA, 2024/HP/0520 AT THE PRINCIPAL REGIST Y HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ESTON KASONGO PLAIN' (Suing on behalf of Charles Cherry Mwando by Power of Attorney) AND JACKSON MWANDO DEFENDANT BEFORE HON. MRS. JUSTICE G.C. CHAWATAMA ON 20TH SEPTEMBER, 2024 - IN CHAMBERS For the Plaintiff In Person For the Defendant No Appearance EULING CASES REFERRED TO: 1. Mutuwila Farms Limited V Johan Note (Judgment No. 28 of 2010) 1110 2. Shell and BP Zambia Limited V Conidaris & Ors (1975) ZR 174 3. Turnkey Properties V Lusaka West Development Corporation and ZSIC (1984) ZR 85 4. American Cynamid Co. V Ethicon Limited (1975) 1 ALL ER 504 5. Finance Bank Zambia Limited V Monokandilos and Another (2012) Volume 1 ZR 484) LEGISLATION AND OTHER WORKS REFERRED TO: 1. Black's Law Dictionary Tenth Edition at page 1297 2. Oliver L. Barbour, A summary of the law of parties to actions at law and suits in Equity 18(1864) Volume 1 by Mambilima DCJ the case of Mutuwila Farms Limited V Johan Nortje (Judgment No. 28 of 2010)1 and she stated at page 21: "The law with regard to the grant of interlocutory injunctions is well settled after the decision in the celebrated case of American Cynamid Co. V Ethicon Limited. The principles laid down in this case are still good law. Our own decisions in the cases of Shell V BP Zambia Limited, Turnkey Properties and Harton Ndove cited to us by Counsel for the defendant endorse the Cynamid principles and have added to our jurisprudence on injunctions. One of the cardinal principles in the grant of an interlocutory injunction is that the applicant must show inter alia that he has an arguable case and that if he is not granted relief, he will suffer from irreparable injury, that is injury that cannot be atoned for by damages." 3.2 I was referred to the case of Shell and BP Zambia Limited V Conidaris & Ors (1975) ZR 1742 in which the Supreme Court summed up the basic principles and held inter alia 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..." 3.3 The court in this case further held that: "Where any doubt exists as to the Plaintiffs rights or if the violation of an admitted right is denied the court takes into consideration the balance of convenience to the parties. The burden of showing the greater inconvenience is on the Plaintiff." R3 3.4 I was further referred to the case of Turnkey Properties V Lusaka West Development Corporation and ZSIC (1984) ZR 853 where it was held that: "An interlocutory injunction is appropriate for the preservation or restoration of a particular situation pending trial. Thus, the object of an interim injunction is to maintain the status quo pending determination of the parties' rights at trial of the substantive matter." 3.5 I was further referred to the case of American Cynamid Co. V Ethicon Limited (1975) 1 ALL ER 5044. In this case Lord Diplock gave guidance on how a court is to determine the question of where the balance of convenience lies. He stated at page 509 that: "The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial, but the plaintiffs need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiffs undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where the balance of convenience lies." R4 4.0 ANALYSIS AND DECISION OF THE LAW 4.1 I am not satisfied that the plaintiff's right to relief is clear nor that he has an arguable case. I am not satisfied that the injunction sought is necessary to protect the plaintiff from irreparable injury. I see no need to grant the injunction ordering the restraining of the defendant either by servants, agents or whosoever form interfering, harassing, selfproclaiming of headmanship and or carrying himself as headman for Mwando village, Chief Shakumbila, Shibuyunji until full and final determination of the matter by this court. 4.2 Having denied the application for an interim injunction I find it necessary to address the issue of Mr. Eston Kasongo right to sue on behalf of Charles Cherry Mwando by Power of Attorney. 4.3 Mr. Eston Kasongo informed the court that he was Director EKP Human Rights. That he is based at Kalusha Bwalya Road Kanyama site and service Lusaka. When heard on the 24th April, 2024. Mr. Kasongo informed the court that Mr. Charles Cherry Mwando is in the village in Shibuyunji district along Mumbwa Road. That Charles Cherry Mwando was the one who was supposed to be village headman. That at the time the court sat he was in Namibia. That Mr. Kasongo did not know when he was coming back to Zambia. That Mr. Charles Cherry Mwando was his family friend. That R5 Mr. Mwando is a family friend and a busy person. That he went to Namibia to see someone who was not well. That as headman he can appoint a vice headman. That he has known Mr. Charles Cherry Mwando for twenty-five (25) years. The absence of Mr. Mwando as plaintiff who is a busy person and has travelled to Namibia has made it necessary for me to address the issue of who is or is meant to be a party in this matter. 4.4 A party according to Black's Law Dictionary Tenth Edition at page 1297 is defined as 2. " "One by or against whom a lawsuit is brought, anyone who both is directly interested in a lawsuit and has a right to control the proceedings, make a defence or appeal from an adverse judgment. Those persons who institute actions for the recovery of their rights, or the redress of their wrongs and those against whom the actions are instituted, are the parties to the actions..." 4.5 Oliver L. Barbour, A summary of the law of parties to actions at law and suits in Equity 18(1864) Volume 1 the author Judge Patrick Matibini as he was then at page 47 posed a question "Who is a Party? (He went on to state)": "A party is a person who on the record of the court has commenced a proceeding, has been served with legal process or has been joined to a cause of action by order of court. R6 He went on to state how the subject relating to parties to legal proceedings is important because the remedies granted by the courts are generally effective only as between the parties". 4.6 At page 2.2 the third paragraph he went on to state that: "An individual cannot delegate the right to conduct litigation by power of attorney. He referred to the case of Finance Bank Zambia Limited V Monokandilos and Another (2012) Volume 1 ZR 484).5 In this case in addressing the second ground of appeal the court stated as follows: "That the Deputy Registrar misdirected himself in law, and in fact first disregarding the fact that there was no affidavit in opposition from the 2nd respondent. Second that even though the 1st respondent had been deported from Zambia, he could still have prosecuted the claim through a power of Attorney. In response, the respondent argued that, first the deportation of the 1st respondent affected the 2nd respondent. As a result, she was unable to prosecute the matter: Second, that the 1st respondent could not prosecute this matter through a power of Attorney because his presence was essential." 4.7 The court went on to state that: "I agree with the submission by the respondent that it is essential for the 1st respondent to be personally available to prosecute the claim. In fact, I am not aware of any rule of procedure that permits the conduct of litigation through a Power of Attorney. And no authority has been brought to my attention. At any rate, one of the primary objectives of conducting a trial, is to give a trial court an opportunity to examine the demeanour of the parties and their witnesses. In any event, if the 1st respondent R7 appointed an agent to represent him and testify to matters within his personal knowledge, such an agent would obviously risk violating a seminal evidential rule, the rule against hearsay, unless of course he had personal knowledge of the matters in issue. Evidence of such matters would have to be adduced. In the absence of such evidence, I am not prepared to hold that the 1st respondent should have in this case appointed an agent to represent him in court." 4.8 Similarly in the matter before me issues of Chieftaincy/Headmen are very important as well as vital. The power of a Chief/ Headman includes that of preserving public peace and to take reasonable measures to quell (or put an end to a rebellion or other disorder) any riot, affray or similar disorder which may occur in that area within the purview of section II(1) of the Chiefs Act. 4.9 The person who ought to have instituted this action should have been Charles Cherry Mwando. He cannot delegate the right to conduct litigation by Power of Attorney. It is essential for him to be personally available to prosecute the claim. His absence would not afford the court an opportunity to examine his demeanor. 4.10 One may ask where the court derives the power to look into the issue of who a party is when what is before the court is an application for an injunction. Order HI Rule 2 provides as follows: R8 "Subject to any particular rules, the court or Judge 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" 4.11 An interlocutory order is a temporary or interim decision that governs the proceedings until a final resolution is reached. It also means not that which decides the cause but which settles some intervening matter relating to the cause. 4.12 In this case the intervening matter is having the right person conduct litigation. 4.13 In conclusion let it be known that generally, a person who is not a plaintiff cannot sue by Power of Attorney on behalf of the actual plaintiff. The reason for this is simple. Firstly, on the issue of legal capacity only the person with a direct interest in the case has the legal capacity to sue. Secondly the standing of the person who sues. The plaintiff must have standing to sue, meaning they have a direct stake in the outcome. 4.14 Lastly the limitations of the Power of Attorney itself. The same typically grants authority to manage specific affairs. Examples could be financial or medical decisions but not to pursue legal claims. However, I must state that there are exceptions unfortunately Mr. Eston Kasongo in the case R9 before me does not fall in the category of those who can act for someone by way of a Power of Attorney. 4.15 This case is hereby dismissed due to lack of standing of Mr. Eston Kasongo who sued on behalf of Charles Cherry Mwando by Power of Attorney. 4.16 I order no costs. 4.17 Leave to appeal is denied. DELIVERED AT LUSAKA THIS 20TH DAY OF SEPTEMBER, 2024. G.C. CH WATAMA HIGH COURT JUDGE R10