Morrestor Farms Limited v Reuben Haakale Hamoonga and Anor (2024/HP/0291) [2025] ZMHC 108 (13 November 2025)

IN THE HIGH COURT FOR ZAMBIA 2024/HP/0291 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: UCOF -COURT Or PRINCIPAL 1 3 NOV 2025 4_A REGISTRY 8 MORRESTER FARMS LIMITED PLAINTIFF AND REUBEN HAAKALE HAMOONGA THE ATTORNEY GENERAL 1 ST DEFENDANT 2ND DEFENDANT BEFORE HON. JUSTICE E. P. MWIKISA . ' For the Plaintiff Mr. M . Mahenga-Messr Chibesakunda and Co. For the 1st Defendant: For the 2 nd Defendant: Ms. M . Mukwaiya- Me rs T. M . N. Legal Practitioners I Ms. N. Nkhazi- Attome1 General Chambers. RULi G Cases referred to: 1) American Cyanamid Co vs. Elthicon [1971 AC 396 2) Hilary B emad Mukosa vs. Micheal Ron ldson (S. C. Z Judgment No. 7 of 1993) 3) Shell and BP Zambia Limited vs. Conidanu· and Others (1975) ZR 4) Moonda Jane Mungaila Mapiko (suing on behalf of Mungaila Royal establishment) and Another vs. Victor Ma aba Chande 2010 ZR 416 Vol. 2 5) Zimco Properties Limited v LAPCO Limited Ir 1988-198 9} ZR 92 6) Nottingham Building Society v Eurodynarrilic Systems [1993] FSR 468 7) Preston v Luck [1884] 27 Ch D 497 Rl Legislation referred to: 1) The High Court Act, Chapter 27 of the La s of Zambia. 1. Introduction and Backgrou 1.1 This ruling emanates from application filed by the Plaintiff for an tnjunction ord r dated 26th February 2024. The application was made p rsuant to Order 28 of the High Court Rules, Chapter 2 of the Laws of Zambia. The said application was supporte by an affidavit of even date. The 1st Defendant opposed e application by filing an affidavit dated 6 th March 202 1.2 The Plaintiff commenced an tion against the Defendant by way of Writ of Summons d Statement of Claim dated 26th February 2024. 1.3 The Plaintiff filed on 30th Jul 2024 an application for a further affidavit in support of he injunction application. 2. Affidavit evidence. 2.1 It was deposed by one Edw dina Haigh, the Managing Partner in the Plaintiff. 2.2 · It was deposed that the there is a dispute concerning the road access from D153 Road Chongwe to the Plaintiffs R2 farm. The dispute is that the access road linkage runs through Farm 9558/M, a farm owned by the 1st Defendant over which the Plaintiff and the members of the public have a right of access. 2.3 It was stated that the Plaintiff had the benefit of peaceful enjoyment of the access roa (track) appearing in the diagram on Farm 667 as exh· ited and marked "EHI". It runs from east to west and it existed before 191 7 as indicated on the diagram for over 50 years until about 2017. 2 .4 The plaintiff deposed that the 1s t Defendant had continuously threatened and denied the Plaintiff from accessing the road which is th only access to its farm. 2.5 Furthermore, that the Plain · f involved the Provincial planner for Lusaka who conducted an investigation into the issue. His finding was that the anomaly be rectified in line wi the mandates under the Land Survey Act No. 188, the ands Act No. 184 and the Lands and Deeds Registry Act No. 185. That the findings of the investigation were cop ed to the Plaintiff, the 1st R3 Defendant and the Town Clerk of Chongwe Municipal Council. The copy of the letter was exhibited and marked "EH3". 2.6 Furthermore, that the Plaintiff involved the Surveyor General who reconfirmed the P aintiffs right to access over the access track on the basis at, the said access road is recognized and therefore le · timate access should be respected. 2 . 7 That the Plaintiff then wr te to the 1st Defendant demanding that he desists from threats and any further action that would compromis its access to its property. This letter was exhibited and arked as "EH6". 2.8 That on 13th February 2024, th Plaintiff and 1st Defendant were summoned at Palabana Police Post and were then referred to Chalimbana Poli , e Station to lodge their dispute. 2.9 It was deposed that the Pl · tiff has no other way of accessing its farm except thr ugh the access road, and that this has inconvenienced t e Plaintiff as it relies on the said road to conduct its busin ss. That the Plaintiff is into R4 commercial farming and its ! arm has 250 hectares of Rhodes grass fields, 6000 Rho es grass bales, 52 hectares center pivot under construcf n for irrigation, 150 beef cattle in feedlot, 600 beef cattl and 50 pedigree brahman stud bulls that require con tant maintenance. Thus, prohibiting the Plaintiff from a cessing its farm will greatly inventory of the farm was exhi ited and marked "EH9". 2.10 That the Plaintiff has suffered and will continue to suffer irreparable damage if the Defe dant is not restrained from blocking the road access. thermore, that unless restrained by the Court there is an appreciable risk that the Defendant will continue to restrict the Plaintiff access to its property and this will ca se unnecessary hardships on the Plaintiff. 3. Skeleton arguments in supp 3. 1 The case of American Cyana id Co vs. El th icon 1 was relied upon to reinforce the osition that the Applicant ought to show how he claims to be entitled to the right RS which he is seeking to protect by injunction and he must show that if he was to succeed in establishing this right to a permanent injunction at trial he could not be adequately compensated in damages for t e refusal of the injunction. 3 .2 Counsel argued that an injun tive relief is only granted to a person who establishes that e has a good and arguable claim to the right that he see~s to protect as espoused in the case of Hilary Berna~ Mukosa vs. Micheal Ronaldson2 . Thus, Counsel ,gued that the Plaintiff as a landowner has the right to ace ss its land. 3.3 Furthermore, Counsel that there 1s a serious dispute between the and the Plaintiff has established a clear right to t e relief it seeks. Counsel relied on the case of Shell a d BP Zambia Limited vs. Conidaris and Others3 where the Supreme Court was of the view that it would not gen ally grant an interlocutory injunction unless the right tor lief is clear and unless the injunction is necessary to rotect the Plaintiff from irreparable injury, and that ere inconvenience is not R6 enough. Thus, Counsel argue I that denying the Plaintiff access to the farm would res lt in irreparable injury as there is no other access to the arm. 4. Affidavit in opposition. 4. 1 It was deposed by one Reuben Haakale Hamoonga the 1s t Defendant herein. 4.2 He deposed that he is the owne of Certificate of Title which relates to property known as L 9558/M and not Farm No. 9558 Palabana Chongwe. T e certificate of title was exhibited and marked as "RHHl". 4. 3 That there is no road reserve hich traverses through his farm and as such no membe s of the public access the alleged road. A copy of an aeri photograph obtained from the Ministry of Lands was exhi ited and marked "RHH2". 4. 4 He stated that. he took le 1al ownership as well as occupation of Farm No. L/955 , /M in 2012. That the road network alleged by the Plaintif to have been in existence before 191 7, is not depicted on the certificate of title relating to his property. Furth ,rmore, that the Plaintiff is able to access its farm through road No. D153. R7 4 .5 Furthermore, that the 1st Defendant was prompted to write to the Surveyor General seeking his indulgence in the matter of which he has not received any response. 4 .6 That the alleged access road · not legitimately provided for and further reiterates that the Plaintiff will not suffer any damage as they already h ve access to Farm No. 667 through D 153. On the other h d, he stated that he would suffer an injustice should the ·njunction be sustained as it will infringe on his right to . uiet use and enjoyment of his property. 5. Skeleton arguments in suppo t of the opposition. 5.1 Counsel submitted that the objective of interlocutory injunctions is to protect the pplicant against injury by violation of their rights for hich they could not be compensated in damages reco erable in the action if the uncertainty were resolved in heir favor at trial. Thus, Counsel argued that the 1st D fendant has demonstrated that there is a legitimate roa accessible to the Plaintiff being Road D153 as shown in xhibit "RHHl". RB 5 .2 It was argued that the 1st Defe dant will suffer irreparable injury which cannot be atoned for by damages should the Plaintiff continue to use the al eged access road. Counsel relied on the case of Moond Jane Mungaila Mapiko (suing on behalf of Mungaila oyal establishment) and Another vs. Victor Makaba C ande 4 and argued that the Plaintiffs adamant refusal to ake use of road D153 but instead insists that it can only ccess its farm through the alleged access road created y the Plaintiff in the 1 st Defendant's farm. Thus, the Pl ·• · ntiff s claims are frivolous and vexatious. 5 .3 Furthermore, Counsel asserte that the Plaintiffs concern is advancing conditions that e only favorable to it. That the main reason for the inj nction is to stop the 1 s t Defendant from obstructing th right of way of the Plaintiff to Farm No. 667 Chongwe thro gh the access road which passes through Farm No. 9558/M. 6 . Further affidavit in sup ort of the injunction application. R9 6.1 It was deposed by Mr. Chikosola Patrick Chuula, Counsel for the Plaintiff. 6.2 He deposed therein that there s a topographic map sheet number 1528B3 given to the Survey Department under the Ministry of Lands which as referred to in exhibit "EHlO. 6.3 That the topographic map she is extremely important as it provides a clear insight on ac ess road which give rise to the dispute in the case herein. The said topographic map sheet was exhibited and markecl "CPCl". 7. Affidavit in Opposition. 7. 1 It was deposed by the 1st Def en ant herein. He stated that he has never had sight of exhibit "EHlO" from the provincial planner of Lus a. Furthermore, that a topographic map sheet publish d in 1981 depicts the land before the replanning by the Su ey Department under the Ministry of Lands. 7 .2 He deposed that his certificate f title was issued after the replanning, thus, it does no show any road reserve RlO traversing through the 1s t Defendant's property known as Farm No, L/9558/M. 8. Hearing. 8 .1 When the matter came up fo hearing on 22nd October 2024, both counsel for the lain tiff and 1st Defendant requested the Court to render i s Ruling based on affidavit evidence. 9. Consideration and Determin 9 . 1 I have carefully considered the fidavit evidence as well as the skeleton arguments on rec rd. The case of American Cyanamid vs. Ethicon111 is in tructive in cases such as this. In that case, the Court he d as follows; "1. it was not the Court's roe to consider conflicting evidence in respect ofan inte im application. This was a matter for trial. 2. All that was necessary at this stage was that the claimant should show that t re was a real issue to be tried. 3. The Court should conside whether damages were an adequate remedy for a clai ant if an injunction was not granted. If so, an injuncti n would not be available. 4. If damages were not an ad quate remedy, then the Court should then ask wheth r the claimant would be able to give an undertaki g in damages to the Defendant. 5. If it was considered that there was any difficulty regarding the availability of damages on either side, Rll the Court should consider th'.e balance of convenience between the parties. 6. If these factors were ev nly balanced, the Court should consider maintaining the status quo. 9.2 I wish to state at this point t at in an application for an interim injunction, the Court should satisfy itself that there is a serious question to . e tried at the hearing and that on the facts before it, the lain tiff is entitled to a right to relief. In the case of Hillary ernard Mukosa v Michael Ronaldson12l the Court held th t: "An injunction would only e granted to a plaintiff who established that he h d a good and arguable claim to the right which he ought to protect." 9.3 In casu, the record shows that e Plaintiff being the owner of Farm No. 667 Chongwe is alleging that there is an access linkage which runs thr ugh Farm 9558/M owned by the 1st Defendant. While In the other side, the 1st Defendant is of the view that th re is no road reverse which traverses his farm. 9.4 In light of the above, I am of the considered view that there is a serious question to be t1 ed at trial because prima facie, there is a dispute cone " rning the access road as evidenced by the documents on record. The serious R12 question to be tried herein being whether there is an access road traversing throug the 1st Defendant's farm. I am thus satisfied and find th t the Plaintiff herein has shown that there is a serious uestion to be tried at trial and that the Plaintiff herein is ntitled to a right to relief. 9.5 Further, it is trite that if the ourt finds that there is a serious question to be tried on the merits of the substantive claim, the Court s ould consider whether the Plaintiff will be adequately co pensated by an award of damages at trial as stated in he case of Shell and BP Zambia Limited v Conni ris and Others131. The Supreme Court, in that case h ld, inter alia, that: "(vi) A Court will not general y grant an interlocutory injunction unless the right t relief is clear and unless the injunction is necessary to protect the Plaintiff from irreparable injury; me e inconvenience is not enough. Irreparable injury means injury which is substantial and can never b adequately remedied or injury which cannot atoned for by damages, n t possibly be repaired." 9 .6 In the affidavit in support, the eponent stated that the 1st Defendant has constantly thre tened to deny the Plaintiff access to its farm. The 1st Defi ndant however denied the R13 allegation on the basis that th re is no access road in his farm branching from road No. 153 to the Plaintiffs farm. 9. 7 What is clear from the above is that there has been denial usage of a road although the 1 t Defendant has a different view. The right to relief is th s clear because there has been denial of usage of a road. s stated in the American Cyanamid case, it is not the r le of the Court to consider conflicting evidence at this poi t. The conflicting evidence in this case being that the Pl · tiff is claiming that there is an access road through the 1st Defendant and the 1st Defendant is denying the same 9 .8 In the case of Zimco Prop Limited v LAPCO Limited5 , the Supreme Court "The balance of convenience etween the parties as to whether to grant an injunc on will only arise if the harm done will be irreparab e and damages will not laintiff for any harm suffice to recompense the which may be suffered." 9.9 In the case of N ottingha Building Society v Eurodynamic Systems6 , it wa observed that the balance of convenience test may be exp essed in terms of whether R14 the risk of injustice if the injunction is refused, outweighs the risk of injustice if the injunction is granted. 9 .10 I am of the considered vie that the Plaintiff has demonstrated that there is no other way of accessing its farm except through the acces road D 153. Furthermore, the Plaintiff has also demons rated that its commercial farming business relies on t e road giving it access through the 1st Defendant's far to transport its products and to receive deliveries and 'thout the grant of this injunction, irreparable injury · 1 be occasioned on the Plaintiff which cannot adeq ately be atoned for by damages. This, in my view outw ighs the injustice that will be occasioned to the 1st Defend t, if any, if the injunction is granted. I am of the con idered view that the 1st Defendant will have nothing t lose if the injunction is granted especially that he depo I ed that the alleged access road is not legitimately provide for. 9. 11 In the case of Preston v Luck 7 , Cotton W had this to say: "The object of an interim inj nction is to keep things in status quo, so that if at t e hearing, the plaintiffs obtain a judgment in their fi vor, the defendants will RlS have been prevented from dealing in the meantime with the property in such way as to make that judgment ineffectual" 9 . 12 It is in light of the above that I am of the considered view that the status quo be maintained in relation to the dispute in issue. This means that the Plaintiff should continue using the access road to its farm until final determination of the matter. 10. Conclusion. 10. 1 I accordingly grant the Orde of Interim Injunction. I hereby confirm the order of int rim injunction granted on 28th February, 2024. Leave to appeal is granted. Dated at Lusaka the ...... . J •••••••• day of .. ...................... , 2025 3 ()1 ~ ~ .. •................................... ELITA PHIRI JUDGE R16