THE COPPERBELT UNIVERSITY

SCHOOL OF HUMANITIES AND SOCIAL SCIENCES

DEPARTMENT OF LAW

NAME: Annie Chiimbwe

STUDENT NUMBER: 23120785

PROGRAM: Bachelor of Laws 2 (LLB 2-Distance )

COURSE: LS 161 :Remidies in Private Law Assignment

LECTURER:

Question: John owns a plot of land which he leases to Sarah for commercial purposes. The lease agreement includes a clause allowing Sarah to
make improvements on the land with John’s consent. Without obtaining consent, Sarah constructs a large warehouse on the property. A year
later, John discovers the construction and seeks legal remedies. Sarah argues that the warehouse increases the value of the property and should
not be removed. Discuss the potential legal remedies available to John under private law. In your answer, consider:

1. Specific Performance: Whether John can compel Sarah to restore the property to its original state.
2. Injunctions: The likelihood of John obtaining an injunction to prevent further construction or use of the warehouse.
3. Damages: The types of damages John may claim, including compensatory and consequential damages, and under what circumstances
they might apply.
4. Restitution: Whether John is entitled to restitutionary remedies, taking into account the argument that the warehouse has increased the
value of his property.

Support your answer with relevant case law and statutory provisions, and discuss the principles that guide the court’s decision-making in such
cases.

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Introduction
Specific Performance
Specific performance is an equitable remedy that can be awarded for breach of contract,
requiring the party to perform their obligations under the contract.
Legal Issues
Whether John can compel Sarah to restore the property to its original state?
Rule of Law
The general principle is that specific performance will only be awarded where damages would
not offer a suitable remedy to the claimant. In the English case of Adderley v Dixon1 the court
has argued that one of the situations where damages would not be suitable include circumstances
where the loss incurred is not possible to quantify. Moreover, the court in the case of Beswick v
Beswick2 argues that the other situation where damages would not be suitable is where only
nominal damages can be claimed. According to the English court in the case of Falcke v
Gray3,the other situation where specific performance is suitable is where the contract relates to
unique goods that cannot be obtained elsewhere. The England and Wales High Court in the case
of Ashworth v Royal National Theatre 4has also guided that specific performance will only be
awarded where it requires no element of personal performance.
In the Zambian case of Jigry Auto Works Ltd v M. H. Patel5,the High Court guided that a court
will not grant a decree for specific performance of a contract if the party seeking the decree can
obtain a sufficient remedy by a judgment for damages and such a decree will not be made when
it would be impracticable to secure compliance to it. In the Zambian Supreme Court case of
Mwenya and Randee v Kapinga6 ,the court upheld the trial court’s decision to order specific
performance for a claimant who made part-payment for a house after the defendant changed their
mind to sell the house by citing delays in clearing the balance.
Application of the Rule of Law and Conclusion
As seen from the various authorities on the principles that guide the court before it can order
specific performance, the key principle is that specific performance can only be awarded if there
is no other remedy available to the claimant. John has other remedies that he can claim from
Sarah other than asking the order of specific performance to demolish the warehouse. The only
1
(1824) 1 Sim & St 607
2
(1968) AC 58
3
(1859) 4 Drew 651
4
(2014) EWHC 1176 (QB)
5
(1993) S.J. 65 (H.C.)
6
(1998) S.C.Z. Judgment 4 of 1998
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mistake Sarah committed was not to inform John about the construction of the warehouse. In
addition, the warehouse would surely bring value to the land as it would attract customers to
come and do business on the land. So, the one mistake of not informing John when building the
warehouse can not be a good reason to warranty the demolishing of the warehouse. It is a breach
of contract and John can ask for other forms of remedies such as injunctions or damages.
The guidance from the High Court decision in Jigry Auto Works Ltd v M. H. Patel case is clear
that as long as other forms of remedies are available, the courts should be reluctant to order
specific performance as a remedy. The learnt reader must take note that the case of Mwenya and
Randee v Kapinga must be distinguished from the case in casu in that in the Kapinga case
there was no other remedy available that could be offered to the claimant who had given part-
payment for the purchase of the house and hence the reason the apex court upheld the order for
specific performance.
It can be concluded the prospectus of whether John can compel Sarah to restore the property to
its original state is likely to be frowned upon by the court.
Injunctions
Injunction is a legal remedy imposed by the court in civil proceedings. It can be said to an order
issued by a court of competent jurisdiction restraining a party from doing or committing certain
acts or an order issued by a court compelling a party to take certain steps. Injunctions are
binding, meaning the agreement or ruling reached in court must be obeyed or carried out
Injunctions are a discretionary remedy that courts grant to protect legal rights when money is not
an adequate remedy.
Legal Issues
Whether or not John is likely to succeed in obtaining an injunction to prevent further
construction or use of the warehouse?
Rule of Law
According to Capper7,there are four principles that a court will consider before a court will
consider whether are not award an injunction a remedy in private law. The first principle is that
there must be a serious question to be tried. In other words, the claimant must have a case
which merits such an award. In some cases, this has been referred to this as an arguable case –
there must be an arguable case. Therefore, one’s claim (being the substantive matter) must not be
frivolous or vexatious. This principle was emphasized by Justice Chirwa (as he was then) in the

7
David Capper, Injunctions in Private Law (Elgar Litigation Series, Queen’s University Belfast, UK,2024) 179-189.
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case Ndove v National Educational Council of Zambia Limited 8. If the first principle is satisfied,
then we look at the second principle. The second principle is that damages will not be
sufficient. This is one of the most important principles of injunction law – that if damages can
adequately compensate for the wrong about to be committed no injunction should be granted at
all irrespective of the strength the case that that the party has put. This principle was affirmed in
the case of Shell and BP Zambia Limited v Conidaris and Others 9.If this principle is satisfied,
then we need to look at the third principle. The third principle is that there must be balance of
convenience. Here the court must weight and found out which creates more injustice between
granting the injunction and not granting injustice. The Supreme Court of Zambia considered the
balance of convenience in the case of Zimco Properties Limited v Lapco Limited10.The fourth
and last principle is the question of preserving the statust quo. Where the balance of
convenience is evenly settled the next thing is for the court to then consider maintaining the
status quo. In the course of weighing the balance of convenience if the factors appear to be
evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve
the status quo.
Application of the Rule of Law and Conclusion
John has satisfied the first principle. He has an arguable case that warrants an injunction because
Sarah has built a warehouse on his land without his consent. Since the first principle has been
satisfied, we look at the second principle. Are damages not sufficient to cover the breach of
contract by Sarah for building a warehouse without the consent of John? There is a high chance
that liquidated and unliquidated damages are enough to cover loss suffered for the breach of
contract for constructing on John’s land without his consent. Therefore, the second principle has
not been satisfied. The third and fourth principles need not consider by the court since the
second principle has not been satisfied.
It can be concluded that John is likely to find it hard to convince the court to grant him an
injunction to prevent further construction or use of the warehouse because of the presence of
other available remedies for breach of contract such liquidated and unliquidated damages.
Damages
There are three main types of damages that can be awarded as remedy in private law. These are
Nominal and Contemptuous damages, General and Special damages and Aggravated and

8
(1980) Z.LR 184
9
(1975) ZLR 174
10
(1988 -1989) ZLR 92
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Exemplary damages. Nominal damages are awarded where the claimant proves that the
defendant has committed a tort but the claimant has suffered no loss. Contemptuous damages
are awarded when the court considers that the claimant's action, although technically successful,
was without merit and should not have been brought. General damage is the damage that is
presumed to flow from torts which are actionable per se, and so need not be specifically pleaded
(e.g., loss of reputation in a libel action). Special damage refers to the damage that the claimant
must plead and prove as part of his cause of action in torts where damage is the gist of the action
(e.g., negligence, nuisance, slander). Aggravated damages are awarded for conduct that shocks
the claimant (and therefore constitutes a real loss). Exemplary damages are awarded for
conduct the shocks the court.
Legal Issues
Whether or not John is eligible to be awarded some form of damages for the breach of contract
by Sarah?
Rule of Law
There are stages that the courts will consider before the courts can award damages. The first is
whether or not the claimant suffered a loss. It was held in the English case of Chaplin v
Hicks11 that failure to give an opportunity to your client to make a profit can amount to a loss.
This will involve quantifying the loss. The second is whether the loss suffered actionable. If
the loss is actionable, we then consider the next factor. The third is whether the type of loss
was reasonably foreseeable. This stage of assessing whether damages will be an appropriate
remedy is the most important stage, and is where a lot of claims will fail. The purpose of this
stage is to consider the remoteness of the damage. The last two stages are whether the
claimant did mitigate the loss or not and also whether the claimant did contribute to the
loss. All these stages are important in assessing whether a claimant must be compensated or not.
Application of the Rule of Law and Conclusion
John appears to have suffered no loss. There is no loss that arises as a result of a person you
leased your land to in building on it without consulting you. The five stages for claiming
monetary damages have not been met. Therefore, John cannot qualify for General damage,
Special damage, Aggravated damages or Exemplary damages.
In conclusion, John only qualifies for Nominal damages or Contemptuous damages.

11
[1911] 2 KB 786
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Restitution
A remedy based upon the principle of unjust enrichment. For the claimant to bring a
restitutionary claim, the defendant must have been unjustly enriched at the expense of the
claimant. A restitutionary remedy seeks to reverse that unjust enrichment, by restoring the
relevant benefit or enrichment to the claimant.
Legal Issues
Whether or not John is entitled to restitutionary remedies, taking into account the argument that
the warehouse has increased the value of his property?
Rule of Law
There are three conditions in which restitution can be awarded. First, where the defendant has
profited from the commission of a wrong. Second, where the defendant has received property in
which the claimant has a proprietary interest, the claimant will be able to vindicate that property
right. Third, where the defendant has been unjustly enriched at the claimant’s expense. It is this
principle which is likely to be most significant to restitutionary claims against public
authorities12.
There are four things that the court will consider when awarding restitution. The first is whether
the defendant was enriched. This will invariably be satisfied by means of showing that the
defendant received money. The second is whether this enrichment was at the expense of the
claimant, which means that it was obtained directly from the claimant. The third is whether
this enrichment can be characterized as unjust within one of the recognized grounds of
restitution. The fourth is whether no defences are available to reduce or limit the claim.13
Application of the Rule of Law and Conclusion
It looks like the first three conditions have been met. Sarah got enriched because the value of the
land has increased after the warehouse. Yes, the enrichment is at the expense of John because he
was not informed on the construction of the warehouse. Yes, the enrichment was unjust because
John had not consented to the construction of warehouse. However, there is a defense to this
enrichment because Sarah has been leased the land and because of that all benefits of the land
now accrue to her.
In conclusion, John will not succeed for restitution because Sarah has a defense to this
enrichment as she has all benefits to the land until the lease expires.

12
Graham Virgo, ‘The Essence of Restitution’ (2006) 45(3) Oxford Law Journal.
13
Chandreyee Maitra, ‘Restitution as Remedy in Disputes Between Investor and State’ (2024) 20(1) Available at
https://doi.org/10.36633/ulr.945 .
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BIBLIOGRAPHY
CASES
Adderley v Dixon (1824) 1 Sim & St 607
Ashworth v Royal National Theatre (2014) EWHC 1176 (QB
Beswick v Beswick (1968) AC 58
Chaplin v Hicks [1911] 2 KB 786
Falcke v Gray (1859) 4 Drew 651
Jigry Auto Works Ltd v M. H. Patel (1993) S.J. 65 (H.C.).
Mwenya and Randee v Kapinga (1998) S.C.Z. Judgment 4 of 1998
Ndove v National Educational Council of Zambia Limited (1980) Z.LR 184.
Shell and BP Zambia Limited v Conidaris and Others (975) ZLR 174.
Zimco Properties Limited v Lapco Limited (1988 -1989) ZLR 92.
BOOKS
Capper D, Injunctions in Private Law (Elgar Litigation Series, Queen’s University Belfast,
UK,2024) 179-189.
JOURNALS
Virgo G, ‘The Essence of Restitution’ (2006) 45(3) Oxford Law Journal.
Maitra C, ‘Restitution as Remedy in Disputes Between Investor and State’ (2024) 20(1)
Available at https://doi.org/10.36633/ulr.945.

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