Trymore Mwenda v Astone Nanja (2024/HP/1271) [2024] ZMHC 156 (16 September 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) 2024/HP/1271 BETWEEN: Z .1 '745' TRYMORE MWENDA 1 6 SEP 2024 PLAINTIFF AND ASTONE NANJA Q12 DEFENDANT Before the Hon. Mrs. Justice R. Chibbabbuka on the 16th day of September, 2024. For the Plaintiff: Messrs Zambezi Chambers RULING Cases referred to: 1. Communications Authority vs Vodacom Zambia Limited SCZ Judgment No. 21 of 2009 2. Shell & BP Zambia Limited vs Conidaris & Others (1975) Z. R. 174 3. Mutuwila Farms Limited vs Johan Nortje 1 (2010) 3 ZR 88 4. Turnkey Properties vs Lusaka West Development Corporation & 2 Others (1984) ZR 85 5. Bernard Kutalika us Dainess Kalunga SCZ/ 73/2013 6. American Cyanamid Company vs Ethicon Limited (1975) A. C 396 Legislation referred to: The Rules of the Supreme Court of England (White book), 1999 Edition. The High Court Act, Chapter 27 of the Laws of Zambia The Lands and Deeds Registry Act, Chapter 185 1.0 Introduction This ruling pertains to the plaintiff's ex-parte application for an interim injunction, which was filed on 9th September, 2024, by summons made pursuant to Order 27 Rule 1 of the High Court Rules, Chapter 27 of the Laws of R I Zambia. The plaintiff seeks an order of interim injunction restraining the defendant or the defendant's servants or agents from continuing construction on Stand No. 5635, Choma, until determination of this action. 2.0 The Plaintiff's Affidavit in Support The plaintiff deposed to an affidavit of even date as the summons, wherein he stated that: he is the current beneficial owner of Stand No. 5635 situate at Choma, Southern Province of the Republic of Zambia. On or about 4th October, 2021, he acquired the subject property at the price of K90, 000.00 from Moffat Mwachibaya who initially acquired the same through a 99 year lease from 1st April, 2021, from the President of the Republic of Zambia. Around August 2024, it came to his knowledge that there were some construction activities taking place on the subject property which activities he neither funded nor authorized. Upon inquiring, he was informed that it was the defendant who was carrying out the said construction. His attempts to amicably stop the defendant, his servants or agents from trespassing on the subject property have proved futile. He has since commenced proceedings for an Order for damages for trespass and a permanent injunction restraining the defendant from continuing to trespass on his property. In the interim and pending the Order for damages for trespass and a permanent injunction to discontinue the construction, it is crucial that his property be preserved as there is a real danger to the land on the property being degraded and devalued by the defendant's illegal construction on the subject property. It will be highly prejudicial if the injunction is not granted as the defendant continues to construct the said structures on his property without his permission. 2.1 The Plaintiff's Supporting Evidence In support of the application, counsel filed skeleton arguments wherein it was argued that this court has power to grant the plaintiff an order of interim R2 injunction to restrain the defendant from continuing construction on Stand No. 5635, Choma. For this argument, counsel relied on the provision of Order 27 Rule I of the High Court Rules of the High Court Act Chapter 27 of Laws of Zambia, as read together with Order 29 Rule 1 of the Rules of the Supreme Court 1999 Edition. Counsel argued that in an application for an injunctive remedy, it is imperative that the right to relief is considered. Counsel relied on the case of Communications Authority vs Vodacom Zambia Limited' wherein the Supreme Court held that: "It is for the party seeking an injunction to establish clearly that he is entitled to the right which he seeks to protect by an injunction. The modern tendency is only to grant an interlocutory injunction where the right to relief is clear." Counsel further relied on the case of Shell & BP Zambia Limited vs Conidaris & Others2, wherein the Supreme Court held that the 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. Counsel argued that the plaintiff's right to relief is clear as he is the holder of a certificate of title which is conclusive evidence of ownership of land as per Section 33 of the Lands and Deeds Registry Act Cap 185 of the Laws of Zambia. Counsel referred to the Shell BP Zambia case, and Mutuwila Farms Limited vs Johan Nortje3 to argue that an injunction will only be granted where the court determines that the applicant will suffer injury that cannot be remedied by an award of damages. Counsel argued that the plaintiff herein will suffer irreparable injury if the defendant is not restrained by way of an injunction as the injury that will be occasioned to the property cannot be atoned for in damages as the defendant is erecting permanent structures on the property, which structures cannot be easily removed. R3 Counsel also relied on the case of Turnkey Properties vs Lusaka West Development Corporation & Another4 for the argument that an interlocutory injunction is appropriate for the preservation or restoration of a particular situation pending trial. In conclusion, counsel prayed for the grant of the order sought. 3.0 The Hearing Pursuant to Order 30 Rule 6A of the High Court (Amendment) Rules, 2020, the hearing of this application was dispensed with. 5.0 The Decision of the Court I am indebted to counsel for the arguments, which I have carefully considered. The plaintiff herein seeks a prohibitory injunction, which is a judicial order whereby the court orders a party to refrain from doing specified acts pending the determination of the parties' rights. An order of injunction is discretionary and not awarded as a matter of right. The court in the case of Bernard Kutalika vs Dainess Kalunga5 stated that the court's discretionary remedy to grant an injunction must be exercised judiciously, having regard to all the facts and circumstances of each and every case. There are relevant principles and tests to be applied when a court is faced with deciding whether or not to grant an interim injunction which were set out in the American Cyanamid Company vs Ethicon Limited6 case. Notably, that the court should address the question of whether or not on the facts raised there is a serious question to be determined at trial; whether damages would be an adequate remedy and the defendant is in a position to pay; and lastly where the balance of convenience lies. In casu, the plaintiff has exhibited a certificate of title issued to him in respect of Stand No. 5635, Choma, which evidences his interest in the subject property. It is the said property that he avers the defendant has encroached on. The plaintiff having established the right to the relief sought, I am inclined to grant the ex-parte order of injunction R4 pending the inter-parte hearing of the application on the 24th September, 2024, at 09:00 hours as indicated in the order. Costs are in the cause. Leave to appeal is hereby granted. Dated at Lusaka this .......... HIGH r REPAtur.. OF URT OF ZAMII r • - R QF-IlagitAQautIA. ittratOgthaii SAKA HIGH COURT JUDGE R5