Interlocutory order

Attorney General v UWP Consulting Zambia Limited (Appeal No. 21/2016) [2019] ZMSC 6 (22 February 2019);

Sakala v Phiri (Appeal No. 215/2015) [2018] ZMSC 302 (27 August 2018);

Kibler v Apollo Agricultural Holdings Limited (Appeal No. 149/2015) [2018] ZMSC 46 (21 June 2018);

Lapemba Trading Limited v Lapidaries and Another (Appeal No. 49/2014) [2016] ZMSC 191 (5 August 2016);

Dudhia and Others v Patel and Another (Appeal No. 79/2015) [2016] ZMSC 150 (26 May 2016);

Stripes Zambia Limited v Cinderella Investments Limited and Another (Appeal No. 200/2012) [2015] ZMSC 40 (19 August 2015);

Akapelwa (Sued as Induna Inete) and Others v Nyumbu (suing as Chief Chiyengele) (Appeal No. 004/2015) [2015] ZMSC 25 (20 May 2015);

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:

What is a “serious question to be tried’ for purposes of granting an injunction;
What accounts for an injury which cannot be atoned for in damages; and
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:

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.
An injury which cannot be atoned in damages is one which is irreparable and substantial, not a mere inconvenience.[2]
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.