Idris Ahmed Essa v Mukambi Safari Lodge and Ors (CAZ/8/494/2025) [2025] ZMCA 137 (24 November 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/8/494/2025 BETWEEN: IDRIS AHMED ESS , AND £,UC OF coURTOFAP --- 2 4 NOV 2025 CIVIL R'EGISTR APPLICANT MUKAMBI SAFARI LODGE /Jt_,)( t..o, COMMISSIONER OF LANDS ATTORNEY GENERAL , · 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT CORAM: Hon. Mr. Justice K. Muzenga in Chambers at Lusaka. For the Applicant: Mrs. B. J. Bulaya Kerns of Jane Bulaya and Partners and Steven Bwalya Jnr of Christopher, Russell Cook & Co. For the Respondents: Mr. E. K. Mwitwa and Mr. C. Kamelu of Mwenye & Mwitwa Advocates RULING MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Attorney General and The Speaker v. The People (1999) ZR 186 2. American Cyanamid Company v. Ethicon Limited (1975) AC 396 3. Mobil Zambia Limited v Msiska (1983) ZR 86 4. Ahmed Abad v. Turning and Metals Limited (1975) ZR 174 5. Shell and BP (Z) Limited v. Conidaris and Others (1975) ZR 174 6. Zimco Properties Limited v. Lapco Limited (1988 - 1989) ZR 92 R2 Legislation referred to: 1. The Court of Appeal Act, No. 7 of 2016 2. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 3. Rules of the Supreme Court of England White Book 1999 Edition Vol 1. 4. The High Court Act, Chapter 27 of the Laws of Zambia 1.0 INTRODUCTION 1.1 This is a renewed application for an order of interim injunction pursuant to Section 9 of the Court of Appeal Act No. 7 of 2016 as read together with Order 10 Rule 2(1) of the Court of Appeal Rules Statutory Instrument No. 65 of 2016 (CAR) and Order 29 rule 1 of the Rules of the Supreme Court of England White Book 1999 Edition Vol 1. 2.0 BACKGROUND OF THE APPLICATION 2.1 The background to this application is that the 1st respondent commenced an action against the 2nd and 3rd respondents seeking among other things, an order for rectification of the Lands Register following the Chief Registrar's entry on the said register on 4th December 2019 which allegedly had the effect of cancelling the 1st respondent's Certificate of Title No. 20248 relating to Farm No. MUMBW/1368308. The applicant was on 31st December 2024 joined to the proceedings having satisfied the court that he had sufficient interest. 2.2 Unknown to the applicant, the respondents executed a Consent Order on 22nd November 2023 pursuant to which the 3rd respondent R3 cancelled entry number 4 on the Lands Register relating to the property thereby reinstating entries number 1 and 2 on the Register which related to the issuance of the Certificate of lltle for the property in the 1st respondent's favour which encompassed a substantial portion of the property granted to the applicant by Chieftainess Kabulwebulwe. Following this, the 1st respondent applied through the Mumbwa Town Council, to the Department of National Parks and Wildlife for the subdivision of the northern portion of the property for the creation of six subdivisions, which application was approved. After registering his concerns to Mumbwa Town Council through his Advocates, the Council informed the applicant that the process would be halted. 2.3 The 1st respondent however continued facilitating the subdivision of the property, prompting the applicant to place a caveat on the property. On 10th June 2024 the applicant commenced proceedings in the High Court under Cause Number 2024/HP/0814 seeking to set aside Consent Order entered in Cause Number 2020/HP/0279. On 19th July 2024 the applicant discovered that the 3rd respondent through the Senior Registrar of Lands and Deeds deregistered the caveat on the premise that it was effected in error. 2.4 The applicant on 22nd July 2024 applied for an order of interim injunction under Cause Number 2020/HP/0279 to prevent the 1st respondent from proceeding with the subdivision following removal of the caveat but the Hon Justice C. C. Zulu declined to entertain the application. On 2nd April 2025 the applicant filled another application for an order for interim injunction under Cause Number R4 2024/HP/0814 seeking to restrain the 1st respondent from further subdividing, transferring or dealing with the property pending determination of the action to set aside the consent order. Meanwhile the action to set aside the consent order was reallocated from Justice C. C. Zulu to Justice S. K. Newa following his formal expression that Justice C. C. Zulu was conflicted, having been the one who endorsed the consent order without giving him an opportunity to be heard. 2.5 Mrs. Justice S. K. Newa however declined to determine the application for an order of interim injunction on account that it would amount to interfering with the consent order endorsed by Judge C. C. Zulu. Dissatisfied with the outcome, the applicant renewed the application for an order for interim injunction, culminating into this ruling. 3.0 HEARING 3.1 Both parties were present at the inter-parte hearing. They informed me that they would rely on their respective affidavits and made oral submissions. I will not recount the contents of the affidavits herein, neither will I reproduce ipsissima verba the arguments advanced. 4.0 MY DECISION 4.1 I have carefully considered the affidavits and the arguments for and against this application. The issue before me for determination is whether it is desirable to grant an order of interim injunction restraining the 1st respondent by itself, its servants, agents or representatives or otherwise from entering upon for purposes of RS subdividing and/or developing, mortgaging or pledging or otherwise howsoever dealing with the subject property or any portion of Farm No. MUMBW/1368308 situate in Central Province of the Republic of Zambia. 4.2 Before I consider the application and the principles governing the grant or otherwise of injunctions, I would like to address an issue I have noted from the Ruling of the court below. I have noted that the learned trial Judge did not determine the application for an injunction on its merits. The reasoning by the learned trial Judge, after considering Section 4 of The High Court Act and the case of Attorney General and The Speaker v. The People,1 was that she enjoyed equal jurisdiction as the Judge before whom the Consent judgment was executed, as such she was precluded from considering the injunction as that would have the effect of tampering with the Consent Order. 4.3 I wish to guide that the reasoning by the judge in the court below is not applicable in fresh proceedings that have been commenced to set aside a consent judgment/order. This is because these proceedings are special, and any interlocutory relief in respect of the consent order sought to be set aside, must be made in those proceedings and the High Court Judge hearing that matter is clothed with jurisdiction to issue out any such order, demanded by the justice of the moment. In these proceedings, the trial Judge does not determine the merits, demerits, propriety or otherwise of the consent order. In short, the Judge does not reopen the other cause. R6 If there was such a blanket restriction, then no consent order would be set aside as no other judge sits in the High Court other than High Court Judges who rank pari passu. Therefore, a Judge sitting in proceedings to set aside consent orders is clothed with jurisdiction to issue interlocutory orders pending the determination of the proceedings, otherwise great injustice may occur. 4.4 I felt compelled to provide the foregoing guidance just in case there are other judges of the High Court who hold similar views on the subject, so that the issue is settled. I shall now proceed to consider the application. 4.5 The rules governing injunctions are well-established in numerous cases. The standard for deciding whether to grant an injunction is based on the principles set out by the House of Lords in the pivotal case of American Cyanamid Company v. Ethicon Limited.2 4.6 The Supreme Court held in the case of Mobil Zambia Limited v. Msiska3 that: "In considering whether or not an injunction should be granted, a most important consideration is whether or not damages are an adequate remedy ... 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. Irreparable injury means injury which is substantial and can never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired." R7 4. 7 Thus, in exercising its discretion, the court will only grant an injunction where the right to relief is clear and the injunction is necessary to protect the applicants from irreparable injury which cannot be atoned for by an award of damages. 4.8 Notwithstanding that the right to relief is clear, an injunction will not be granted as a matter of course. The applicant ought to satisfy the court that the order is necessary to protect it from irreparable damage. Thus, if the applicant can be fully compensated by an award of damages, no injunction should be granted. This consideration is made in the light of what was stated by Lord Diplock in the American Cyanamid case supra that: "If damages in the measure recoverable at common law would be adequate remedy and the Defendant would be in the financial position to pay them, no interim injunction should normally be granted." 4. 9 I am further fortified by the guidance given by the Supreme Court in the case of Ahmed Abad v. Turning and Metals Limited4 that an injunction is inappropriate when damages would be an adequate remedy. 4.10 The applicant argues that he recently came across an advertisement on Facebook indicating that the 1st respondent has been marketing portions of the subject property for sale. That the public advertisements coupled with the ongoing subdivisions and issuance of certificates of title demonstrates the 1st respondent's intent to dispose of the land despite the pending disputes and proceedings in R8 court. In this regard, the gist of the applicant's argument is that there are triable issues and that he has a clear right to relief as the consent order he seeks to set aside was signed without his participation. 4.11 It was argued that damages are an inadequate remedy in the circumstances involving property as no one property is like another and further that the balance of convenience thus tilted in favour of granting and confirming the injunction. 4.12 The 1st respondent on the other hand argues that the right to relief is not clear as the applicant has come before the court on the basis of challenging a consent order endorsed by the lower court in Cause Number 2020/HP/0279 executed by the respondents to deal with an error committed by the Registrar of Lands. Further that on the basis that the applicant claimed for damages as well as special damages in excess of K2,500,000.00, the applicant has demonstrated that damages would be adequate if the court were to discharge the interim order of injunction. 4.13 The pt respondent's contention is that it is a holder of 8 different certificates of title relating to the land in question and that the applicant was not entitled to the interim injunction being sought. 4.14 I have considered the parties' respective arguments and satisfied on the affidavit evidence and the originating process that there is a serious question to be tried by the lower court and further that the applicant's right to relief is clear. To demonstrate how clear the R9 right to relief is, the judge in the court below, when joining the applicant to the proceedings in which the consent order emanated, found that the applicant had an interest in the matter and was likely to be affected by its decision. 4.15 I further hold the view that if an injunction is not granted the 1st respondent or its agents will continue subdividing and even sell off the said properties, thereby rendering the pending cause, academic. There is therefore no doubt that the applicant will be ruined if an injunction is not granted. The authorities are clear that an injunction may not normally be granted unless the loss or damage the applicant may suffer will be irreparable. Therefore, it is not every damage for which injunctive relief may be granted. 4.16 Learned counsel for the 1st respondent argued that the fact that the applicant in its originating process has claimed for damages, it follows that damages will be adequate and therefore injunctive relief is inappropriate. In considering the adequacy of damages, I have examined the originating process, more particularly, the applicant's endorsement, which inter alia include: "Special damages in excess of K2,S00,000.00 occasioned to the plaintiff arising from the 1st defendant by not allowing the plaintiff to commence construction on the land for 8 years causing financial, mental and physical stress on the plaintiff." 4.17 I agree with learned counsel for the 1st respondent that the applicant, in part of its claims in the cause includes damages. I however hold the view that this alone is not fatal to the injunctive R10 relief sought. I say so because firstly the claim for damages is not the main claim. The main claim relates to setting aside of the consent order, dealing with real property rights. The claim for damages can only arise or be successful in the first place if the main claim in the cause is successful. Secondly, it is not claimed in the alternative to the main claim which borders on real property rights, neither is it in lieu thereof. I therefore hold the view that it does not follow that whenever there is an additional claim for damages in a cause, then injunctive relief must fail. This could be true where an applicant seeks damages in lieu of its real property rights. Most importantly, each case must be determined on its own facts. 4.18 Having said the foregoing, the main claim herein involves real property rights, and I hold the firm view that the loss to be suffered by the applicant in the circumstances of this case is irreparable. 4.19 I must state that it is well established that a consideration of the balance of convenience arises where there is no doubt as to the adequacy of the remedies in damages as elucidated by the Supreme Court in the case of Zimco Properties Limited v. Lapco Limited6 wherein it stated that: "We must make it clear that the question of balance convenience between the parties only arises if the harm done will be irreparable and damages will not suffice to recompense the plaintiff for any harm which may be suffered as a result of the actions of the defendant which it is sought to restrain. It is therefore inappropriate in this case to discuss the question of balance of convenience. It is clear to us that if the ' ' . Rll plaintiff is successful in its action, it will be adequately compensated by an award of damages." 4.20 The balance of convenience therefore favours the grant of the injunction in order to preserve the status quo. I am thus satisfied that the applicant has met the requirements for the grant of an injunction. I hereby find merit in the application. 5.0 CONCLUSION 5.1 Having found merit in the application, I hereby grant it. Consequently, I confirm the ex-parte order of interim injunction I granted on the 26th September 2025. 5.2 Costs will be in the cause. Dated this 24th day of November 2025 K. MUZENGA COURT OF APPEAL JUDGE