Lake Kariba Inns Limited v Steven Nyirenda and Anor (CAZ/08/75/2025) [2025] ZMCA 63 (25 April 2025)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/75/2025 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: LAKE KARIBA INNS LIMITED AND STEVEN NYIRENDA 2 5 APR 2025 IVIL REGISTRY 0067 , L VSPH INVESTMENTS LIMITED (T/A SAVEE BEACH RESORTS) APPELLANT 1st RESPONDENT 2 nd RESPONDENT Before the Hon. Lady Justice Abha Patel, S. C. in Chambers on 6th March & 1st Apri l 2025. For the Appellant: Mr. R. S. Simeza, SC & Ms. N. Mwila Messrs Simeza Sangwa Associates For the Respondent: Ms. N. S. Phiri Messrs Namonje Sikombe & Associates RULING Cases referred to: 1. Zambia National Commercial Bank PLC v Ernestina Sakala & 62 others CAZ/08/168/2019 2. Shell & BP Zambia Limited v Conidaris & Others - (2004) ZR 96 3 . Jaulani Company Limited v Ark Freight Limit ed and another Appeal No 92 of Page IR 1 4. Ladd v Marshall 1954, 3 A. E. R. 745 5. American Cyanamid vs Ethicon (1975) 1 ALL ER 50 6. Lukwanda and Ors v Zambia Airforce Projects Ltd and Ors (CAZ 8 323 of 2019) [2020] ZM CA 134 7. Horizon Properties Lim ited v Tembo & another (Appeal 223 of 2020) [2020] ZMCA 1 8. Sanofi-Aventis Deutschland GMBH v Alphapharm Pty Ltd (No 3) [2018] FCA 9. Turnkey Properties v Lusaka West Development Company Limited, BSK Chiti and Zambia St ate Insurance Corporation Ltd & Ot hers (1984) ZR 85 legislation & Rules referred to : 1. The Rules of the Supreme Court of England 1965 ("White book") 1999 Edition 2. The High Court Act, Chapter 27 of the laws of Zambia 3. The Court of Appeal Act, No.7 of 2016 Other works refe rred to: 1. Commercial Litigation; pre-emptive Remedies, (London, Sweet and Maxwell 2005) Page IR 2 1.0 INTRODUCTION 1.1 This is a composite Ruling on the Appellant's applicat ion for an Order of Interim Injunction pending the hearing and determination of the appeal pursuant to Order 59 Rule 10 of the Rule of the Supreme Court of England (RSC), 1965 1 filed on 28th February 2025. The application was made ex parte with a supporting affidavit and skeleton arguments. The ex parte Order of interim injunction was granted by the Court on the same date and an inter partes hearing date of 6th March 2025 was endorsed on the Summons. 1.2 On 6th March 2025, the 2nd Respondent sought a short adjournment to allow it to file its opposing process which application was granted, and the application was heard inter partes on 24th March 2025. 1.3 A subsequent application was made by the 2nd Respondent for an Order to adduce further evidence on 31st March 2025. This was heard on 1st April 2025 and the Court reserved its Ruling in this matter. 2.0 BACKGROUND 2.1 This matter has had a checkered background before the lower Court(s), the salient points of which dispute are narrated below for context. 2.2 The Appeal in this matter was lodged on 20th February 2025, the Appellant being dissatisfied with the Ruling of Lady Justice S. K. Newa delivered on 6th February 2025. 2.3 The brief background to this matter is that on 4th December 2019, Justice E. L Musona delivered Judgment in a matter commenced by the Appellant Page IR 3 regarding a long-standing boundary dispute over property in Siavonga specifically Stand 412 and Stand 1152 wh ich stems back from as far as 2009. Justice Musona took conduct of it in 2018. In his judgment, Justice Musona did not declare any party as an owner of the disputed piece(s) of land, save fo r the order of re-planning of the affected area . He ordered that the whole affected area be re-planned based on a survey report filed into Court. The Honourable Judge also ordered that until the affected land was re-planned, both the Appellant and 2nd Respondent shall halt any further developments on their disputed stands. 2.4 On 30th May 2024, the Appellant commenced proceedings aga inst the ist Respondent, the 2nd Respondent and Attorney Genera l seeking the fol lowing reliefs: i. An Order directing the Southern Province Planning Authority to re-plan the disputed area affecting Stand No 412 and Stand No 1152 Siavonga based on the survey report of 20th December 2011; ii. An Order directing Steven Nyirenda and NSPH Investments Limited trading as Savee Beach Hotels to pull down and demolish all structures found to be encroaching following the re-planning of the area based on the Survey Report of 20th December, 2011; iii. Damages for trespass to land against Steven Nyirenda and NSPH Investments Limited trading as Savee Beach Hotels; iv. Any other relief the Court may deem fit. Page IR 4 2.5 On 17th July 2024, the Appellant applied ex-parte for an Order of interim injunction to restrain the 2nd Respondent from erecting structures, carrying out developments until final determination of the matter. 2.6 On 24th September 2024, Lady Justice Newa considered the Appellant's application and in her Ruling ordered that the Appellant and 2,,d Respondent be restrained from carrying out any construction or developmental activities on the property. 2.7 On 25th October 2024, the 2nd Respondent filed into Court an application pursuant t o Order 14a Rules 1 and 2 and Order 33 Rule 7 of t he RSC 1 read w ith Section 13 of the High Court Act 2 seeking the determination of whether or not the matter was properly before the Court in light of the fact that it was fully and finally determined under the Judgment of 4th December 2019. 2.8 On 6th February, 2025, Lady Judge Newa held the view that the Appellant had the opportunity to raise specific issues that arose from evidence on record but did not do so . She took the view that by seeking to litigate issues mentioned in the 20th December 2011 Survey Report, the Appellant is attempting to have a second bite at the cherry. She ultimately held the view that the claims sought in the matter were res judicata and that commencing the action was a multiplicity of actions and abuse of the Court process. She upheld the preliminary issue raised by the 2nd Respondent and dismissed the matter for being res judicata and subsequently discharged the Order of injunction. 2.9 Dissatisfied with the Ruling of the lower Court dated 6th February 2025, the Appellant filed its Notice and Memorandum of Appeal on 20th February 2025. Page IR 5 3.0 THE APPELLANT'S APPLICATION 3.1 The Appellant' s application was accompanied by an Affidavit and Skeleton Arguments in support filed on 28 th February 2025. The Affidavit was deposed by one Jason Townsend, in his capacity as a director of the Appellant company. 3.2 It was deposed that the Appellant is the registered title holder of Stand No. 412, Siavonga District. A copy of the Certificate of Title was exhibited and marked "JTl". 3.3 At paragraph 6, the deponent deposed that the High Court in its judgment of 4th December 2019, determ ined, inter alia, that the source of the dispute stemmed from the manner Stands 412 and 1152 Siavonga were planned and consequently directed the Provisional Plann ing Authority to rep Ian the whole affected area on the basis of the Survey Report prepared by Kateka/Chungu dated 20th December 2011. It was further deposed that the High Court further directed that all developments on the disputed portion be halted until the replanning was concluded. 3.3 The deponent at paragraph 7 deposed that, despite the directive in the said Judgment, the Provincial Plann ing Authority for Southern Province neglected to comply with the said directive. 3.4 The deponent also averred that on 21st September 2022, the Appellant wrote to the 2nd Respondent advising it to halt all developments on Stand No 412 until the area was re-planned as directed by the High Court. Page IR 6 3.5 The deponent also averred that further attempts were made by the Appellant to follow up on re-planning on 11th November 2022, 9th March 2023, 10th July 2023 and 4th August 2023 to the Council Secretary Southern Planning Authority, Provincial Planning Officer Southern Province, the Permanent Secretary in the Ministry of Local Government and Rural Development respectively. 3.6 The deponent averred that unless restrained by Order of this Court, the 2nd Respondent would continue with its construction activities on the Appellant' s property with the result that the Appellant's property will be altered permanently and in the event that the Appellant was successful in this Appeal, the results of the appeal would be rendered an academic exercise. 3.7 In its skeleton arguments, the Appellant placed reliance on Order 59 Rule 10 (9) of the RSC1 which provides as follows : 11 (9) In any proceedings incidental to any cause or matter pending before the Court of Appeal, the powers conferred by this rule on the Court may be exercised by a single judge of the registrar. Provided the said powers of the Court of Appeal shall be exercisable only by that Court for a single judge in relation to- ( a) The grant, variation, discharge or enforcement and an injunction, or an undertaking given in lieu of an injunction; and (b) The grant of lifting of a stay of execution or proceedings. " Page IR 7 3.8 In arguing the applicat ion, the Appellant referred t o t he case of Zambia National Commercial Bank Pie v Ernestina Sakala & 62 others1 in which this Court held t hat under Order 59 Rule 10 (9) RSC 1 , th e Cou rt of Appeal can exercise the power t o grant an interim injunction as if it were a Court of first instance. It is the argument that th is Court has the power to grant the Order of interim injunction in matters on appeal from the High Court as if it was a Court of first instance. 3.9 Counsel su bmitted that t he 2nd Respondent has continued building on Stand No 412 in total disregard of the Appellant' s rights as t itle holder and that unless t he 2nd Responde nt is rest rained by Order of inj unction, there was a real risk that Stand No 412 would be total ly alienated by the actions of the 2nd Respondent. 3.10 The Appellant referred to the case of Shell & BP Zambia Limited v Conidaris & Others2 in support of the principles for the grant of interim relief and submitted th at t he Appella nt's right to relief is clear, and the injunction necessary, to protect it from irreparable injury. It was further argued that no amount of damage could compensat e the Appe llant for loss of a particular piece of land vis St and 412 Siavonga. The Appellant referred to Jaulani Company Limited v Ark Freight Limited and others 3 in which t he Supreme Court dealing with an injunction relating t o loss of an interest in land, had the following to say: " ... The question of irreparable injury could not be ruled out because damages cannot adequately atone a loss of an interest in land. 11 Page IR 8 3.11 Counsel submitted that in the circumstances, it was in t he interest of justice and appropriate that the Order of interim injunction be confirmed, so as to preserve and restore the rights of the Parties pending the hearing and determination of the appeal and called upon the Court to confirm the Order so as to maintain the status quo pending the hearing and determination of the appeal. 4.0 THE OPPOSITION 4.1 On 10th March 2025, the 2nd Respondent filed an Affidavit in Opposition accompanied by skeleton arguments in support. The Affidavit was sworn by one Vijay Anaka Bhaskhar Reddy, in his capacity as a director of the 2nd Respondent Company. 4.2 The deponent at paragraph 4 submitted that the Appellant was taking a selective approach, ignoring the fact that, what was highlighted in paragraphs 5-7 of its application resulted in a Judgment dated 4th December 2019 ordering the replanning of the entire area . 4.3 At paragraph 5, it was deposed that the purported registered ownership of Stand No 412, Siavonga District, is non-existent due to re-planning and subsequent cancellation fol lowing the sa id Judgment. A copy of the letter from the Southern Planning Authority to the Ministry of Lands requesting cancellation and proposed cancellat ion was exhibited and marked "VABRl". 4.4 It was deposed that as a consequence of the cancellation, an official search at the Ministry of Lands confirms that property SIA/412 is not active and Page IR 9 exhibited a copy of search results which show the status for the Appellants property SIA/412 and SIA/1152 belonging to the 2nd Respondent. 4.5 It was deposed at paragraph 7 that the 2nd Respondent, following the re planning and in exercising its rights and/or benefits from the same, took possession of the land apportioned to it by the said Report and/or Judgment. 4.6 In their arguments, the 2nd Respondent argued that t he Appellant' s claim is unfounded due t o t he cancellation of propert y SIA/412 and its current inactive status. It was furt her argued that the facts in the matter do not state any prejudice or irreparable injury the Appellants will suffer if the ex parte Order of injunction is not vacated. It was argued t hat if the injunction is sustained, the 2nd Respondent who are already on the land and have made significant developments, will suffer prejudice. 4.7 As regards the preservation of the status quo, the 2nd Respondent argued that if the status quo is not preserved, the 2nd Respondent may suffer irreparable harm or damage, which cannot be compensated by damages. 5.0 TH E HEARING OF THE APPLICATION FOR INTERIM INJUNCTION 5.1 At the hearing of the application, both State Counsel Simeza, for the Appellant, and Counsel Phiri, for the Respondent, made lengthy and detailed submissions to augment the material already filed before the Court which will be considered below. 5.2 As noted above, the inter partes hearing was followed by a subsequent hearing on the application of the 2nd Respondent for the Court to consider further evidence. Page IR 10 6.0 ANALYSIS AND DECISION OF THE COURT 6.1 I have considered the 2nd Respondent' s application by Summons for an order to adduce further evidence dated 25 th March 2025 with the supporting affidavit sworn by one Vijay Anaka Bhaskhar Reddy, as well as skeleton arguments filed on the same date. 6.2 Without losing sight of the main matter before the Court and in which Ruling was reserved, I am not inclined to be distracted from the nature of the urgent application for an interim order of injunction pending appeal, as argued by the Parties on 24th March 2025 . 6.3 I have had occasion to review the 2nd Respondent's application . In its affidavit in support, it was deposed that the 2nd Respondent has been a title holder of property, which was issued after the replanning of the said property. It was further deposed that there was an inadvertent omission on the part of the 2nd Respondent to attach the Certificates of Title that had been issued. It was deposed that the said Certificates would have a significant impact on the outcome of the Appellant's application for an Order of interim injunction heard by this Court on 24th March 2025 . 6.4 The 2nd Respondent in the skeleton arguments placed reliance on Section 24 of the Court of Appeal Act 3 which stipulates as follows : "(1} The Court may, on the hearing of an appeal in a civil matter (b) where necessary or expedient in the interest of justice- Page IR 11 (i) Order the production of a document, exhibit or other thing connected with the proceedings, the production of which may be necessary for the determination of the matter. 6.5 The 2nd Respondent placed further rel iance on Order 59 Ru le 10 (2) of the RSC 1 which states: "The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds. 11 6.6 It is the 2nd Respondent's argument that the certificate of title issued post re planning, was inadvertently omitted from the record. The 2nd Respondent argues that the inclusion of the document is essential for a just and informed determination of the pending injunction application before the Court which was heard on 24th March 2025 . 6.7 I have noted the contents of the opposing affidavit and skeleton arguments of the Appel lant, filed on 3i5t March 2025 opposing the 2nd Respondent' s application to introduce further evidence. 6.8 In light of the forgoing, I have taken time to review Order 59 Rule 10 of the SCR 1 . I have also had occasion to review the explanatory notes which provide guidance on applications for leave to adduce further evidence, referred to by Page IR 12 the Appellant. It was argued that the 2nd Respondent had not satisfied the conditions required before an appel late court could receive fresh evidence. 6.9 At the hearing of the application on 1st April 2025, Counsel for the Respondent submitted that a perusal of the explanatory note of Order 59/10/8 defines ' meaning of trial of hearing on the merits' to mean a final trial or hearing of an action or other proceeding. It was submitted that it is on this basis that the 2nd Respondent argued that the matter is properly before the Court. 6.10 I have reviewed the 2nd Respondent's reference to note 59/10/8 which reads as follows : 1159/10/8 Meaning of "trial or hearing on the merits" - Clearly a final trial or hearing of an action or other proceedings is a "trial or hearing on the merits", including a split trial or a sub-trial. It was held in Langdale v Danby {1982} 1 W. L. R 1123; {1982} 3 All E. R. 129, H. L. that a judgment given under 0.14 (or 0.86} was a judgment given after a hearing on the merits; it follows that the Ladd v Marshall conditions apply where there is an application to adduce further evidence in an appeal against such a judgment (Lodge Green Limited v. Leitch (trading as Manx Electronics), November 2, 1982 (unrep.), C. A. and K/5 A/5 Oil Transport v. Saudi Research and Development Corporation, Ltd {1984)1 Lloyd's Rep. 5, C. A.}. But an order refusing summary judgment or granting conditional leave to defend is not an order made after a hearing on the merits ... 11 (emphasis ours) Page IR 13 6.11 I have also noted that according to Order 59 Rule 10 (2)1, for an application for leave to adduce further evidence to succeed, fresh evidence cannot be adm itted unless special circumstances have been established . 6.12 In light of the above, firstly, I hold t he view that it is manifestly clear that the explanatory notes relied on by the 2nd Respondent, speak to an appeal and not an application before the Court of Appeal. It is my view that the 2nd Respondent is cherry picking the 'meaning of a trial' in this sense and overlooking that, holistically, this applies to an appeal. I find myself in agreement with the submissions of the Appellant, that the provisions relied on by the 2nd Respondent as authority for the application, do not clothe this Court with the requ isite jurisdiction to accept further evidence during or after an interlocutory application has been argued . 6.13 In further consideration of the special circumstances requ ired for an applicant to be able to adduce fresh evidence, I have noted the three conditions that must be satisfied laid down in Ladd v Marshall 4, which are that, for an application to introduce new evidence to succeed, it must be shown that the evidence could not be obtained w ith reasonable diligence at trial; that the evidence will have an important influence on the result of the case and that the evidence will be credible. 6.14 In the application before me, I note the 2nd Respondent's skeleton arguments of the application at paragraph 3, in which it was submitted that new certificates of title were issued, evidenced by their Affidavit in Opposition that was filed in the lower Court. I have had sight of the exhibits and acknowledge the 2nd Respondent's arguments that the 2nd Respondent Page IR 14 inadvertently failed to attach the relevant certificates of title to the record . However, from my observation, the certificates of title relied upon were exhibited in their affidavit in opposition dated 30th July 2024, as such I am not persuaded by the 2nd Respondent's reasons for not availing copies of the documents at the appropriate t ime. I accept the opposing submissions of th e Appellant and accept that the reasons tendered by the 2nd Respondent do not fall within the reasons that may be deemed sufficient to the Court. 6.15 In any event, the documents wh ich the 2nd Respondent wishes to place reliance on, will be the subject of the main appeal before the Court. In the exercise of my inherent discretion, I will not allow production of the documents by the 2nd Respondent made under cover of its application to adduce further evidence at this stage. 6.16 I will now turn my consideration to th e subject of the reserved Ruling. 6.17 I have considered the affidavits, arguments and authorities cited by both parties regarding the application for an order of interim injunction pending appeal. The question before me, is whether the Appellant has presented sufficient evidence to confirm the Order of interim injunction that was granted on 28th February 2025. 6.18 In answering the above question, I ask myself whether the Appellant has met the principles required for a successful injunction, as established by the seminal case of American Cyanamid vs Ethicon Limited5 . 6.19 Guidance to the Court, in my view, is provided by the following short passage from the well-known speech of Lord Diplock in the American Cyanamid 5 case where he said : Page IR 15 "The court no doubt must be satisfied that the claim is not frivolous or vexatious in other words, that there is a serious question to be tried. It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. 11 6.20 I am su itably guided that in considering the grant of an injunction, the Court is required to undertake an incremental inquiry which was aptly encapsulated by the learned authors of Commercial Litigation; pre-emptive Remedies, (London, Sweet and Maxwell 2005)1 at page 2.5 in paragraph A 1005 as follows: a) Consider whether there is a serious question to be tried. That is, the claim must not be frivolous or vexatious; b) If there is a serious question to be tried, consider whether if the Plaintiff were to succeed at trial in establishing his right, the plaintiff could be adequately compensated by an award of damages for the Joss he would have sustained as a result of the defendant continuing to do what was sought to be enjoined between the time of the application and the time of trial; c) If damages would be an adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted however strong the claimant's claim appeared; Page IR 16 d) If, however, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at trial, his right to do that which was sought to be restrained consider whether, if the defendant were to succeed at trial in establishing, the defendant would be adequately compensated by an award of damages under the plaintiff's undertaking in damages; e) If damages in the measure recoverable under that undertaking would be an adequate remedy, and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction; f) Where there is doubt as to the adequacy of the respective remedies in damages available to either party or both, then the general balance of convenience arises. At this stage, the Court is engaged in weighing the respective risks that injustice may result from deciding one way rather than the other at a stage when the evidence is incomplete; g) Where factors relevant to the general balance of convenience are evenly balanced, generally take such measures as may be necessary to preserve the status quo; and h) Resist resolving conflicts of evidence or undertaking a detailed consideration of the law. 6.21 In the case of Lukwanda and Ors v Zambia Airforce Projects Ltd and Ors,6 we stated that in determ ining whether there is a serious question to be tried and whether on the facts before Court, the re is a probability that t he Page IR 17 applicant is entitled to relief, the Court is required to consider the evidence before it. 6.22 I have considered the affidavit evidence and am of the considered view, without delving into the merits of the main appeal, that what is clear to this Court is that, since the lower Court' s Judgment of 4 December 2019 (" the Judgment"), further issues have continued to arise from the Order made in the said Judgment. 6.23 At the hearing of the application, it was the Appellant' s argument that the entire dispute stems from the decision by the Provincial Plann ing Authority of Southern Province acting in concert with the 1st Respondent, to disregard the said Judgment, which directed that Stand 412 Siavonga and Stand 1152 be replanned . State Counsel Simeza submitted that the replanning be done in accordance with the survey report that was before the lower Court and prepared by one Mr. Kateka . He submitted that the replanning has not been concluded following the Court process that was issued and Stand 412 still exists, as can be shown on the Lands Register exhibited and marked "JTl". 6.24 I have also considered the 2nd Respondent's submission that the disputed area was replanned and new certificates of title had been adduced . Counsel for the Respondent submitted that the 2nd Respondent has demonstrated that tremendous developments have been made following replann ing and that the business is an on-going concern. Counsel for the 2nd Respondent argued that the Appellant had not shown that its right to relief was clear. 6.25 I have considered the aforementioned arguments, the affidavit evidence and the subject judgment. Upon reviewing the affidavit evidence and the Page IR 18 Judgment of the lower Court, it is clear that there are contentious issues to be determined, to address the existence of the certificates of title held by the Appellant on the one hand, and the 2nd Respondent on the other, relating to portions of the same disputed area of land. More importantly, this matter, in the determination of the main appeal, will call for the scrutiny and confirmation of the survey report that was used . 6.26 It is evident that there are serious questions to be determ ined between the Parties which need to be determined on the merits. I refer to our decision in the case of Horizon Properties Limited v Tembo & another 7 , and paragraph 4.16 thereof states as follows: "A Court cannot be barred from considering a dispute relating to two separate certificates of title encompassing the same portion of land, arising possibly from misdescription or boundary errors." 6.27 The second requirement for the grant of an injunction is that the Appellant must show that it will suffer irreparable injury if the injunction is not granted. I refer to the case of Jaulani Company Limited v Ark Freight Limited and another 3 in which the Apex court stated as follows: " .... The question of irreparable injury could not be ruled out because damages cannot adequately atone a loss of an interest in land. " 6.28 Upon careful consideration of the foregoing, I am of the firm view that in the absence of an injunction pending appeal, the Appellant is like ly to suffer substantial harm. I have reviewed the affidavit evidence and observed the developments that have occurred in the disputed area. Should the activities of the 2nd Respondent continue, there is a real risk that the land may be Page IR 19 significantly alt ered before a final det ermination of the matter. In the event of a successful appeal, the Appellant may be left with no remedy, as t he damage inflicted may be irreparable, rendering any restoration to its origina l state vi rtually impossible. 6.29 I therefore find merit in the arguments advanced by the Appellant that the 2nd Respondent is already on disputed land and has made significant and tremendous developments, and if not restra ined, the 2nd Respondent w ill continue to excavate and build on Stand 412 and the damage that will result from those act ions w ill be irreparable as land once altered cannot be restored. 6.30 In relation to the balance of convenience, the cited case of Lukwa nda5 guided as fo llows at page R34: "In the more recent case of Sanofi-Aventis Deutsch/and GMBH v Alphapharm Pty Lt d (No 3) {2018} FCA 2060 8 , similar sentiments were expressed when the Court said that in considering the balance of convenience, it is necessary to assess the harm to the applicant if there is no injunction, and the prejudice or harm to the respondent if an injunction is imposed. As part of the consideration, the Court must also consider whether damages are likely to be an adequate remedy for the applicant if its rights are upheld in the final hearing but if no injunction is granted. Conversely, a counter consideration is whether damages are likely to give adequate compensation to the respondent, and any affected third party, if the interlocutory injunction is subsequently Page IR 20 found to be wrongly granted and whether the respondent is likely to suffer irreparable harm. 11 (emphasis ours) 6.31 In consideration of the circumstances of this matter, I cannot turn a blind eye to the active Judgment of 4th December 2019. I have noted the arguments of both parties. In establishing whether to confirm the injunction or not, I am of the view that the effect of not allowing the injunction significantly affects the disputed portions of land. I cannot overlook the impending changes that are likely to occur in the disputed area pending the hearing of the appeal. I have observed exhibits marked "JTS" which show several developments by the 2nd Respondent on the disputed area. It is for this reason that I find that the balance of convenience tilts in favour of the Appellant. 6.32 Lastly, and in my view, the most critical issue in this matter is the preservation of the status quo. It is trite that at this stage the Court is not required to delve deeply into the merits of the main matter. This was confirmed in the case of Turnkey Properties v Lusaka West Development Company Limited, BSK Chiti and Zambia State Insurance Corporation Ltd 9 where the Supreme Court noted as follows : "It is improper for a court hearing an interlocutory application to make comments which may have the effect of pre-empting the decision of the issues which are to be decided on the merits at the trial. 11 6.33 Taking into consideration the facts and circumstances in casu, it is my considered view that in the interest of justice, the status quo ought to be maintained. I have analysed the affidavit evidence more specifically, "JTl to Page IR 21 .. ' JT12" of the Appellants affida vit in support. I have also reviewed the 2nd Respondents affidavit in opposit ion and further affidavit in support. In my opinion, following the decision of the lower Court on 4th Dece mber 2019, the status quo was maintained up until it was disturbed follow ing the events demonstrated by the subm issions of both parties . 6.34 Afte r careful consideration of this appl ication, I am of the view that t he Appellant has demonstrated that its right to re lief is cl ear and has also demonstrated sufficient reasons to persuade th is Court t o confirm t he Order of Injunct ion pending appeal. 7 .0 CONCLUSION 7.1 In view of the forego ing, the application for an Injunction pend ing appeal has merit and the Order of Injunction is hereby granted until after the f inal determinat ion of the appeal. Dated the 25:h day of April 2025 ··················~·~···.f.~9. ...................... . HON . LADY JUSTICE A. N. PATEL, S. C. Page IR 22 ) :sUCOF ,uif OFAPj 2 5 APR 2025 ILREGISTR' 2( 5()0f?_7__,.