Lomanzi Banda and Anor v Double Impact Construction Limited and Ors (2019/HP/0392) [2020] ZMHC 464 (20 July 2020)

IN 'r. HE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY 2019/HP/0392 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: LOMANZI BANDA DAVIS MWAPE AND 1 ST PLAINTIFF 2ND PLAINTIFF DOUBLE IMPACT CONSTRUCTION LIMITED RONGHUA ZHANG HAO YU 1 ST DEFENDANT 2ND DEFENDANT 3RD DEFENDANT Befo re the Honourable Lady Justice Ruth Chibbabbuka on the 1 7 th day of Octobe:r, 2019 For the Pla int iffs : Ms M. M. Mushipe, Messrs Mushipe & Associa tes For the De fen dan ts: Ms. S. Kalima, Messrs J & M Advocates RULING Cases referred to: 1. Greyford Munda vs. Winslone Chibwc (su ed ir. his capacity as SecretanJ General of United Party for National De 11elopment) Appeal No. 98 of 2013. 2. American Cynamid vs Ethicon Ltd (19 75) AC 396 3. Shell & BP Zambia Ltd us Conidaris & Others (1975) ZR 174 4. Preston us. Lucic (1884) ChD 497 5. Ndoue us National Educational Company Zambia Limited (1980) ZR 184 6.- Ke/celwa Samuel Kangwa us Dauid Nkhata Appeal No. 102 of 2013 Legislation referred to: High Court Act, Chapter 27 of the Laws of Zambia The plaintiffs by . an application for an injunction made pursuant to Order 2 7 Rule 4 of the High Court Rules, Chapter 27 of the Laws of Zambia, seek a n orde r against the 1 st d efendant for the following reliefs; Rl I. I' I I I I I I I a;- To restrain the J s t defendant by itself or othenvise from continuing to discharge water, emissions and effluent and or interfering with the plaintiffs quiet enjoyment of their property known as plot 284/ l\ll Lusaka 1Vest mid .b) The defendants remove the pipe discharging water, emissions and effluent onto the plaintiffs' property pending determination of the matter. The plaintiffs filed an affidavit in support qf their applicatiop dated 15th March, 2019. According to the said affidavit, sorrietime between June and December, 2016, the 1st defendant dug a tunnel on its property for purposes of mining stones and quarry dust. The tunnel has since been filled with rain and underground water and has resulted in the defendants failing to conduct their mining a ctivities. The defendants have gone on to illegally and n egligently place a large pipe for purposes of draining water from th e said tun nel and disc harging it onto the plaintiffs land. This has cau sed a water reservoir or da m to be created on the plaintiff's property which h as led to the destruction of their property. Th e said spillage of water has created ditches, craters and other depressions which were filled up with water in November, 2017 and led to the drowning of Davis Mwa pe ,Junior, aged five years a grand child to the 1 st plaintiff a nd 1 st born son of the 2 n d plaintiff. The 1 st defendant's Directors fired warning gun s hots in the air when the pla intiffs peacefully a pproach ed the 1 s t defendant to compla in about the water spillage on the plaintiffs ' property. Inspite of reporting the matter to the police, the police have not opened a docket. As a result the plaintiffs' properties have been submerged in water a nd the pit latrines are over flooding resulting in the plaintiffs' family being susceptible to diseases and losing mesne profits on leased ou t properties. The defendants have continued to ignore the pla intiffs' plea to remove the water pipe. As a result the plaintiffs' property is being d amaged . R2 r I I That an injunction be issued pending the detern1ination of the mam matter. In opposing the application the 2nd defendant Zhang Rong Hua deposed and swore an affidavit filed on the 9 th October, 2019. According to that affidavit he avers that all activities conducted by the 1 st defendant have been conducted legally with water that is pumped from a source of water for residents in the surrounding area which lacks water supply and that it is not true that the spillage of water created ditches, waters and other depressions. Currently, these ditches, craters and depressions ' are characteristic of the terrain of the area subject of this matter and have been further escalated by locals in the area digging for stones. Due to the terrain of the area the ditches will be filled with rain water and a visit to the site would show there is no water at all. Further the plaintiffs' property is some distance away from the 1 st defendant premises and there h ave been no complaints from premises that are closer to the 1st defendants' I ! 1 premises tha n that of the plain tiffs. The defendants arc not privy to the circumstances surrounding the drowning of Davis Mwape Junior save to highlight that he did not drown on the 1 ~t defendant's premises. Neither are the defendants privy to any communication with the police. The plaintiffs have not provided any medical report as evidence of illness suffered by the plaintiffs' children and grandchildren and without any medical records the court should not entertain these allegations. Neither have the plaintiffs shown any damage to their property. In their affidavit m reply, the plaintiffs more or less repeated the contents of their affidavit in support of this application, save to add that the 1 st defendant has suspended the use of large pipes that were pointing to lot No. 6484/M due to the water volumes and has taken s01ne of the pipes to the other side of the pit. At the hearing counsel for the plaintiffs relied on the affidavit in s upport and in reply as well as their skeleton arguments and list of authorities a ll filed on the 15th March 2019. R3 r1 I I I I I I I I ' I : I I tj I i I, ! ' I., ,.· In. opposing the application counsel for the defendants relied on the affidavit in opposition. The court was referred to the case ·of Greyford Manda vs. Winstone Chibwe (sued in his capacity as Secretary General of united Party for National Development)! where the court held that the granting of an injunction must serve a useful purpose. Coun·sel argued that the application for an interim injunction in casu is quite specific as it is seeking to restrain the defendant from continuing to discharge water and for the immediate removal of the pipe allegedly discharging water ' onto the plaintiffs property. Counsel argued further that the plaintiffs~ in . . ' their affidavit in reply, had admitted that the pipe had already been removed. It was counsel's considered view that there was no basis upon which this tria l court could gra n t a n injunction and that the alleged damages s uffered by the pla in tiffs are issu es th a t could be determined at trial. Jn reply counsel for the pla intiffs argued that the principles for granting an injunc tion were clearly espoused in the celebrated cases of Ame i'ican Cynamid vs Ethicon Ltd2 a nd Shell & BP Zambia Ltd vs Canidaris & Others3 . Counsel u rged this court to look at the cases of Preston vs. Luck4 a nd Ndove vs National Educational Company Zambia Lim ited5 a nd differentia te these cases from the Greyford Manda vs. Winstone Ch ibwe case. Counsel urged this court to gra nt the . injunction. I am indebted to counsel for their arguments and submissions which I have taken into consideration. The Supreme Court has guided in the case of Shell & BP (Zambia) Limited vs Conidaris and others that; "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, me re inconvenience is not enough" R4 A perusal of the Writ of Sum~ons and Statement of Claim indicates that the right to relief is not clear, with regard to the application for an injunction. I say so because as rightly pointed at by counsel for the defendants, the plaintiffs have admitted that the pipe that ~as discharging water onto the plaintiffs' property has since been removed . Furt~er, a perusal of the summons for an injunction shows that the rrtain issue for which relief was being sought wa_s the stoppage of the discharge of the water, em1ss1ons and effluent and . . discharging the said water, emissions and effluent onto the plaintiffs' removal of the pipe . that was property. Consequently, I agree with counsel for the defendants that a grant of an injunction in this scenario, as requested, serves no useful purpose as the pipe that was discha rging water, effluent or emission has since been removed. Further, a per usa l of the plaintiffs' claims reveals four separate heads of claims for damages. The Supreme Court has guided in the case of Kekelwa Samue l Kangwa vs David Nkhata6 that where a relief of damages is included in the origina ting process, then this serves as an acknowledgment tha t da mages would serve as a dequate compensation and that in such a case th ere is therefore no irreparable injury to be suffered. On the basis of these authorities I find that the plaintiffs' application lacks merit as it has not shown the required ~lements for the granting of an injunction. The pla intiffs' application is denied and dismissed accordingly. Each party bears their own costs. . Leave to appeal is granted . Dated the .............................. day of ... J..~· ................ 2020 :)_/Jn - I I I I I I l \ I I , I , I ',i Ruth Chibbabbuka JUDGE RS