ACS Ltd v Maersk Mozambique (T/A Maersk Zambia) (Appeal 78 of 2008) [2009] ZMSC 1 (15 October 2009)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 78/2008 HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: ACS LIMITED (cid:9) AND MAERSK MOZAMBIQUE (cid:9) (T/A MAERSK ZAMBIA) APPELLANT RESPONDENT 40 (cid:9) Coram: Mambilima, DCJ, Chitengi, Mwanamwamba, JJS On 4th November, 2008 and 15th October, 2009.. For the Appellant: (cid:9) Mr. N. Nchito, of M. N. B. Legal Practitioners. For the Respondent: Mr. L. Mwanabo of Lewis Nathan Advocates. JUDGMENT Chitengi, JS, delivered the Judgment of the court. We regret the delay in delivering this rather short judgment. In this case the Respondent brought an action against the Appellant in the Commercial Court to recover certain sums of money from the Appellant. For various reasons the hearing did not take place on many occasions. On 29th January, 2008 the parties' advocates appeared before the learned trial Judge for hearing. However, without hearing Counsel the learned trial Judge entered judgment in favour of the Respondent. It is the entry of that judgment which stimulated this appeal. The Appellant advanced grounds of appeal and Counsel filed heads of ii I not establish that they had a clear right to a relief which they sought and wanted to protect by injunction and the irreparable injury which the Appellants would suffer if the injunction was not granted. We cannot fault the learned trial Judge in his findings. Indeed, as the learned trial Judge found, the borehole was on the Respondents' land and the Respondents, as owners of land, were entitled to regulate the time when neighbouring villagers may use the borehole. Further, we say that the Respondents had even the right to stop outsiders coming on their land to draw water, which they did not. And as the learned trial Judge found there was no irreparable damage which the Appellants would suffer by the Respondents regulating the periods when they may draw water from the borehole. All in all we find no merit in this appeal and we dismiss it with costs to the Respondents to be agreed upon and in default to be taxed. D. K. CHIRWA SUPREME COURT JUDGE SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE J5