New Cumm Motors Limited v Lusaka City Council and Midlands Breweries (PVT) Limited (2022/HP/0801) [2024] ZMHC 64 (22 April 2024)

' .. IN THE H YGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOl,DEN AT LUSAKA (Civil Juris diction.) 2022/HP/0801 BETWEEN: ~ NE\V C'UMM MOTORS LIMITED AND , - LUSAl{A CITY COUNCIL MIDLANDS BREWERIES (PVT} LIMITED 1ST DEFENDANT 2ND DEFENDANT BEFORE THE HONOURABLE MRS. JUSTICE M. C KOMBE For the Plaintiff Mr. W. Mwenya - 1\llessrs. Lukona Chambers. For the 1 st Defendant: lv!r. A. Nsa.ma - In 1-J.ou se Counsel Lusaka City Council · For the 2 nd Defendant: Nlr. F. Besa -M essr s. Friday Besa & - - - --- -- - - - ,flssocia tes. RULING Cases referred to: 1. Edward Jack Shan1wana 't7. Levy Mwanawasa ( 1994) Z. R. 9 3. 2. A1nerican Cyana:mid Cornpany v. Ethicon Limited (1975} AC 396. 3. Hilary Bernard Mukosa v. Michael Ronaldson (1993- 1994) Z. R. 26. 4 . Harton Ndove v. Zambia Edu.cational Company (1980) Z. R.104. 5. She ll a n d BP (Z) Limited v. Conidaris and others (1975) Z. R. l'i'f . , . . .· .. .. 6. Ahmed Abad v. 'fu:rning and Metals Limited (1975) Z. R. 174. 7 . Zimco Properties Limited v . Lapco Limited (1988-1989) Z. R 92. 8. Societe Fran~oise d'Applications Commerciales et Industriclles S. A. R. L. v. Electronic Concepts Limited (1976) 1 W. L. R. 51. 9. Shepard Homes Limited v . Sandham (1971) CH. 340. 10. Bates v . Lord Hailsham of St. Marylebone and Others (1972) 1. ·w -. L. R. 1373. Legislation and other material referred to: 1. The High Court' Rll:les, Ch.apter, 27 of the Laws of Zambia: · 2. The ·Rules -of the Supreme Court (RSC-White Book) 1999 · · Edition. · .· . · · 3 . . Halsbury. Laws of Engl~~d Volun1e 24, Fourth Edition, 4. Iain S. C~ld . rein, K. H. P. Wilkinson and M. Kershaw: Commercial Litigation: Pre-emptive Ren1edies, London, and Sweet & Maxwell 1997. 5. Matibini P, ~ambian Civil Procedure Commentarv and Cases Volume r, South Africa, . LexisNexis, 2017. This is a ruling on the Plair1:t iffs application for an Order of.interim injunc tion, The appbcption is.made p ursuant to Order 27 of th e High Court Rule s . Chapter . 27. of. the Laws of Zambia -and . Order 29 rule 1 of the Rules of the Suprer:p.e ~curt.of Englapd, 199.9 Edition. ·.'' \ By this Order , th e Plaintiff s eeks to stop, restrain and refrain the 2 nd Defendant from blocking access points into the service lane on the --R2- I eastern side of the Plaintiffs premises p ending determination of this matter. The application is supported by an affidavit deposed to by PAUL MARCEL MONGE, the proprietor and Managing Director of the Plaintiff Company. He deposed that the 2nd Defendant's premises known as Stand No. 37875 carrying out a business as a brewery were next to the Plaintiffs ·and shared a common service lane at the backyard which was lin.-der th~-.a. Uthori ty and jurisdiction of the . 1 s ~ D~fendan t in so far as was k,..-10wn to the Plaintiff. The said service lane wa s situated on the eastern side of the two Companies running from north to south and shared by all the premises that were on Stand No.10523(now Stand No. 1443328/ l) to Stand No. 11794 along Lumumba Road and Stand Nos. 10535 to 1054·3 in the City and Province of Lusaka. The s ervice lane was under the control and management of the 1 st Defendant and that it contained a natural flow of waste and rain . . water . There were also ZESCO overhea d cables and telephone communication cables that took care of the natural flow of water in that part of the Light Industrjal Area. It ·was also deposed that the 1 s t -R3- Defendant had a mandate under the law to maintain drains including the se:-vice lane. The deponent further deposed that the predecessor to the Plaintiff Company, Paul Marcel Monge trading as New Cumm Motors took possession of Stand No. 10523 in the year 1988 and the service lane in question had been observed and maintained by the 1st Defendant in accordance with the statutory function. Stand No. 10523 for the Plaintiff was extended and re-numbered as Stand No. 1443328 / 1. At no time was the -Plaintiff informed by t h e 1st Defendant that the service lane had. been re-planned for other use other than that of a service lane. On or about the year 2017, without the consent of the Plaintiff the 2 nd Defendant blocked the natural flow of waste and rain water from the Plaintiffs premises onto the service lane resulting in untold misery and damage to the Plaintiffs premises. Copies of the photographs tal<:en on the site were exhibited and marked " PMM4." When the Plaintiff inquired with the 2 nd Defendant why the service lane had been blocked, the Plaintiff came to lea.in that the service lane had been offered to the 2 nd Defendant by the · .recommend ation of the 1 st Defendant and had formed part and parcel of the 2 n d -RL!- Defendant's lan.d which bordered the Pla intiffs land on the eastern side and for which a Certificate of Title had been issued to the 2nd Defendant. Copies of documents in support were exhibited and marked "PMM5. " It was deposed that the 2 nd Defendant also erected a wall fence along the section · of the service lane through which waste and rain water from the Plaintiffs premises joined the lane and the rain water from the roof top of the storage containers resulted in back flush of rain water into the Plaintiffs premises. Copies of the photographs taken on site were exhibited and marked "PMM 4 ." The 2 nd Defendant also built a roof over its boiler machines which discharged rain water on the premises of the Plaintiff. Despite raising a complaint over th e issue, the 2nd Defendant failed and neglected to control the discharge of the water onto the Plaintiff in addition to blocking the access points for discharge ·of waste and rain water. The Plaintiff engaged the 1st Defendant as a Planning Authority for Lusaka City and the authority responsible for maintaining drainages. That despite the meetings and visits conducted by ·officials, the 1 st Defendant had not ta ken any action to rem edy the situation. Copies of letters were exhibited and collectively marked "PMM6. " -RS - permission from anyone before re-planning the land that was within its jurisdiction. The deponent added that it was not the 1 st Defendant's responsibility to deal with the flooding of the Plaintiffs property as there was already a d rainage in front of the Plaintiffs property that could be u sed for the saine cause. Further, that the 1st Defendant was not in breach of any statutory function. That the Plaintiff was seeking an injunction for actions that h a d already b een done by the· 1 st and 2 nd Defendant and the application was th erefore m iscon ceived with nothing to injuhct. The 2nd Defendant also opposed the application and filed an affidavit in opposition on 28th February, 2024, deposed to by BATES NAMUYAMBA, the Chairman of the 2 nd Defendant Company. He dep.o~ed that th e land behind the Plaintiff and the 2 nd Defenda nt's properties beir..g r eferred to as a "service lane" was a m ere strip of bare land a t the back and not a drainage system as wrongly" alleged by the Plaintiff. That the strip of land at the back did not even h ave an opening as it was fenced at the end arid would therefore not take drainage anywhere . Further , that there was in front of the parties' properties a differen t area designated as drainage system. -R8- I .. Regarding the ZESCO cables, h e deposed that they had since been buried underground in armored cables follm,ving th e lawful allocation of part of the land to the 2 nd Defendant by the Commissioner of Lands. The d eponent denied that the 2 nd Defendant b locked the natur al flow of waste and rain water from the Plaintiffs premises. The 2nd . Defendant ·merely fenc ed off its property after it was offered by the . Commissioner of Lands. That it wa s the Plaintiffs responsibility to sort out any drainage problems that could arise on its property. The deponent further explained that the 2°d Defendant after realizing that the land b ehind its property did not belong to anyone, in fu.ll compliance with procedure on or around August 2012, it applied to the Director of City Pla nning of the 1 st Defendant, an agent of the Commissioner of Lands for extension. The Commissioner of Land s who h ad full and absolute· authority to a lienate land in Zambia issued an invitation to treat to· the 2nd Defendant and upon the 211d Defendant complying with the terms, it accepted the offer letter. A copy of the invitation to treat and letter of offer were exhibited and marked "BN6.'' - R9- That the 2 nd Defendant was the legal and beneficial owner of the land with all the full rights which included and not restricted to fencing off property and making a d equate provi~.;ion for drainage systems within the property. He also explained that whilst the 2nd Defendant was not privy to the dr ainage and flooding conditions in the Plaintiffs property, the issue of flooding arising from rain wa ter had not been caused by the 2 n d Defendant 's developments at its property: That all the properties in the p arties ' area experienced the same rain conditions and had built their own drainage lines including underground drainage facilities that took the rain water to the main d esignated draina ge furrows constructed by the 1 st Defendant. That rather than build its own drainage system that would pass through its property and · direct the rain water to the designated drainage furrows , the Piaintiff had unreasonably demanded that its drainage system should pass through the 2 nd Defendant's property and· potentially cau se flooding to the 2 nd Defendant's property. The· deponent also denied that its roof on the boiler caused flooding in the Plaintiffs premises . -RlO- It was deposed that the 2 nd Defendant's activities and constructions at its property including the portion which it acquired after the plot was extended had been done in accordance with the law after all legal and procedural requirements were complied with in extending the plot and acquiring title for the same. The deponent denied that the Plaintiff had suffered any damage or loss. Th.at the· purported flooding if at all was an act of God that could not be blamed on the Defendants. Further, that the Plaintiff was not entitled to have the service lane reinstated as the said land had already been given to the 2nd Defendar1t by the Commissioner ·of Lands. That the application for an inju nction was not only without merit or w ithout clear right to the reliefs being sought and wh at was to be restrained as the land had already been given to the 2nd Defendant . . who had developed it. Hence there was nothing to injunct. The Plaintiff filed an affidavit in. reply to the 1 st Defendant's affidavit in opposition deposed to by PAUL MARCEL MONGE. He deposed that the service lane had been in existence until the 2nd Defendant encroached on it. -Rll- At no time did the 1 s t Defendant re-plan the area depicted on exhibit "PMM l" resulting in the revision of the site plan for the affected area declaring the service lane as a disused service lane. Further that the 1 st Defendant had not produced any documents to support the passing of any Council Resolution decommissioning the said service lane. It was deposed that the l st Defendant could not unilaterally change the use or"a public service lane without informing the membe~s of the public. Tha.t the actions by the 1 st and 2nd Defendants to block the service lane should not be allowed as they amounted to creation of a nuisance and serious health hazard. In rela tion to the affidavit in opposition filed by the 2nd Defendant, the Plaintiff filed an affidavit in reply in which the deponent deposed that the service lane had always been designated as such and among the services it provided was for waste and rain water and dr.ainage. Other services included facilitation. of ZESCO electricity cables for the supply of properbes bordering the service lane and telephone lines. He deposed fr.at' the grant of the Certificate of Title to Ll-ie 2nd Defendant extending into the service lane was done deliberately as -R1 2- the 1 st and 2nd Defendants were fully aware of the existence of the service lane at the time the 2 nd Defendant applied for the land. That the Certificate of Title relied on even showed the existence of the service lane as still existing on both sides of the said stand except on the section the subject of these proceedings. Further, that"the extension of the said stand resulted into.the cutting of ·the service lru1e into two parts which were clearly visible on the survey diagram .. That if it was decommissioned as alleged, the survey diagram could not have indicated the existence of the (service) lane . . ' at the time of approval of the survey diagram which should have been supported by a Council Resolution and endorsed on the Deeds Register. That there was breach by the 1st Defendant in allocating a portion of the service lane to the 2 nd Defendant which had resulted in the blockage of waste and rai.n water into the service lane. Therefore, the grant of the extension to the 2nd Defendant by the 1 st Defendant was marked with irregularities. At the hearing of the application, learned counsel for the Plaintiff, Mr. . . W. Mwenya relied on the affidavit in support filed on 16th January, 2024, and the affidavits in reply filed on 25th March, 2024. Reliance -R13- was also placed on the skeleton arguments file d on the same date. These were augmented with verbal submissions in reply. Learned counsel for the 1s t Defendant, Mr. A. Nsama also solely relied on the affidavit in opposition filed on 13t h March, 2024. Learned counsel for the 2nd Defendant, Mr. F. Besa relied on the affidavit in opposition and the skeleton arguments filed on 28L'1 February, 2024. He augmented th e arguments with verbal submissions. · I shall not replicate the submissions but will be making reference to them as and when it is necessary. B::y _this application, I have been called upon to determine w~1ether the Plaintiff is entitled to an order of interim injunction to stop, restrain and refrain the 2 nd Defendant from blocking access points into the service lane on the ·eastern side of the Plaintiffs premises. In doing so, I have carefully considered the caution given by Ngulube J '(as he then 'was) in the case of Edward Jack Shamwan·a v. Levy Mwanawasa 111• This caution is that I should in no way pre-empt the decision of the issues which a.re to be decided on the merits a n d the evidence at the trial of the action. -R14· "I The test to be applied when considering whether or not an injunction should be granted remains that laid down by the House of Lords in the seminal case of American Cyanamid Com.pany v . Ethicon. Limited (2 l . This case sets out a series of questions which should guide the court in making a determination. These are: 1. Is there a serious question to be tried? 2 . Would damages be a dequate? 3 . Where does the balance of convenience lie? However, I an1 mindful to the fact that the principles established in the American Cy a n ami d case are of general application and must not be treated a s a statutory definition. This is because it is possible to grant or refuse an interim injunction ·without applying the American Cyanamid guidelines. In followi11g the American Cyanamid guidelines, the first question I should consider therefore is whether or not the Plaintiff h as raised a seriou s question to be determined· a t trial. This proposition comes down to the r equirement that the claim must not be frivolous or vexatious. This is ·in line with the holding by the Supreme Court in the case of Hilary Be rnard Mukosa v. Michael Ronaldson (31 where it was held that: -RlS- "An injunction wou ld only be granted to a plaintiff who established that he had a good and arguable claim to the right which he sought to protect." Further, in the High Court, Chirwa J , as h e then was in t h e case of Harton N dove v. Zambia Educational Company 141 held that: "Before granting an interlocutory injunction it must be shown that there is a sel'ious dispute between the parties and the ·plaintiff must show on the material before court that he has any real prospect of succeeding at trial." In view of the above principles, for the application to succeed, the Plain tiff must -d emonstrate that there is a serious question to be tried and it h as a good ari.d arguable claim to .the right it" seeks to p'rotect. I have peru sed the writ of summons, staten1ent of claim and the defence and counter claim filed . I have examined the endorsement in the statement of clairn and the affidavit evidence adduced by all the parties together with the exhibits. The Plaintiff's contention is that it shared a common service lane with the 2 n d Defendant at the backyards which was under the authority and jurisdiction of the 1st Defendant. The 1st' Defendant without informing the Plaintiff re-planned the service lane for other use other -R16- than that of a service lane. On or about the year 201 7 without the consent of the Plaintiff, the 2 nd Defendant blocked ·i:he natural flow of waste and rain water from the Plaintiffs premises onto the service lane resulting in untold misery, flooding and damage to the Plaintiffs premises. The 1s t Defendant on the other hand has argued that the alleged service lane was not a service lane per se as it was in disuse at the ' . . time it was offered to the 2m1 Defendant by the 1 s t Defendant. It is also argued that the 1 st Defendant did not need consent of the Plaintiff to re-plan a disused service lane and it was not the 1st pefendant's responsibility to de<;ll with the flooding of the Plaintiffs property as there was already a drainage in front of the Plaintiffs property that could be used for the same cause. The gist of the 2 nd Defendant's argument 1s that it denies the assertion that it blocked the natural flow of waste and rain water from the· Plaintiffs premises as it merely fenced off its property after . it was offered by the Commissioner of Lands. . It is argued that after realizing that the land behind its property did not belong to anyone, in full compliance \.vith procedure on or around August, 2012, it applied to the Director of City . Planning of the 1s t -Rl 7- Defendant. The Commissioner of Lands with full and absolute authority to alienate land in Zainbia issued an invitation to treat to the 2nd Defendant and upon complying ,1/ith the terms, it accepted the off er letter. The 2°d Defendant contends that it is the legal and beneficial owner of the larid ,1/ith all the full rights which · in.eludes and not restricted to fencing off property ari.d making adequate provision for drainage systems within the property. From the foregoing, it is clear that the Plaintiff challenges the 1 st Defendant's decision to re-plan the alleged service lane and recommendation to offer it to the 2 nd Defendant: The Plaintiff contends ·that the ·2 nd Defendant's fencing off and activities in the land h a d now blocked the natural flow of waste and rain water from the Plaintiffs premises. However, a determination whether the Piaintiff is entitled to the reliefs that he seeks can only be made after examining in a more detailed way the evidence a n d exhibits relied upon by both p~ties at the trial of this matter. In view of the above, I find in line Mth the Harton Ndove case that there is a serious question to be tried by the Court. -!U8- That notwithstanding, the mere fact that there is a serious qu estion to be tried is not enough. In order to succeed, the Plaintiff must satisfy th e court that an injunction is necessary to protect it from irreparable damage. Thus, if the Plaintiff can be fully compensated by a11. award of darnages, no injunction should be granted. This consideration is mad e in the light of what was stated by Lord Dip lock in the American Cyanamid case that: "If damage s in. the measure recoverable at common law would be adequate remedy and the Defendant would be in the financial position to pay them, no interim injunction should normally be granted." Further, paragraph 955 of the Halsbury's Laws of England Volume 24, Fourth Edition provides that: "The Plaintiff must also as a rule be able to show that an injunction until the hearing is necessary t o protect him against irreparable injury; mere inconvenience is not e n ough. " According to the Shell and BP (Z) Limited v . Conida:ris and othe rs lfil case irreparable injury means: 11Injury · which · in substantial and ·cari• never be adequately reme died or atoned for by damages, not injury· which cannot possibly be repaired." -R19- : . .. In this regard, an injunction will not be granted where damages would be an adequate remedy to the injury compiained of in the event that the Plaintiff later succeeds in the main action. According to paragraph 29/L/5 of the Rules of the Supreme Court, where there is a .d011bt as to the adequacy of the respective remedies in damages then the question of balance of convenience arises. On this quest~on, the Plaintiffs position is that the if the injunction is not granted, the Plaintiff will suffer irreparable dan1age that cannot be atoned for in damages considering that the dispute involves a unique subject matter, which i.s land. The 2 n d Defendant on the other hand argues that the Plaintiff has not demonstrated what irreparable injury it will suffer if the injunction is not granted and fa even seeking damages including special damages in its relief. It is contended that this •shows that damages would be an adequate remedy in the unijkely event that the Plaintiff succeeds in its claim. I have carefully considered the respective arguments advanced by the parties. The Plaintiff in its affidavit deposed that the flooding caused . . . by the blockage had resulted in a number of the Plaintiffs equipment . being damaged due to corrosion and exposure to waste watei- and the -R20- • floor for the workshops h a d been drunaged due to stagnant water. It is contended that the Plaintiff had also suffered loss of business during the shutdcwn due to flooding. That it further incurred costs in addressing the effects of the flooding occasioned by the blockage of th e service lane. From the foregoing, I am of the considered view that if the Plaintiff were to s·u cceed aftei" th e· determination of this matter, the injury which it would suffer would not be substantial to the extent that it can n ever be atoned for by damages. I say this because the injunctive relief sought is fr, stop, restrain a_nd refrain the 2 nd Defendant from blocking access points into the service lane in the eastern side of the Plaintiffs premises . I form the view that if the· Plaintiff were to succeed "in its claim , the damage caused to its equipment and that of its clients due to corrosion and exposure to ~ater is not one that cannot be atoned for iri damages·. This applies to the loss of business that the Plaintiff will have suffered and the costs incurred in mitigating the effects of the flooding. I am fortified by the reliefs that the Plaintiff seeks as shown in paragraphs (vii) to (xi) of the writ of summons and statement of claim that they are monetary in nature. -R21- ... I am therefore incJined to agree with the 2 nd Defendant's assertion th at the Plaintiff is s eeking speciaJ dama ges which entails that the damage occa sioned can easily be quantified and compensa t ed for by an award of damages. Force is lent from the guidance given by the Supreme Court in the cas e of Ahmed Abad v . Turning and Metals Limited 16 ~ that an injunction is inappropriate when damages would be an adequate remedy . As I h ave already alluded to, paragraph 29/L/5 of the Rules of tl1.e Supre1ne Court states t hat where there is a doubt as to ·the adequacy of the respective ·retn~dies in damages .th en the question of balance of convenience arises. Additionally, in the case of Zimco Properties Limited v. Lapco Limited 17 l which has b een cited by counsel for the Defendant, the Supreme Court made it clear when it held that: "We must make it clear that the question of balance of convenience between the parties only arises if the harm done will be _irreparable and damages wili. not . . . . suffice to recompense the plaintiff for any harm which may be suffered as a result of the actions of the defen.dant which it is sought to restrain. It is therefore -R22- 'I inappropriate in this case to discuss the question of balance of convenience. It is clear to us that if the plaintiff is successful in its action it will be adequately compensated by an award of damages." It is apparent from the foregoing that the balance of con venience only a rises where there is a doubt as to a dequacy of damages or if the harm done ·will · be ·irreparable·. Seeing that I haye found that the Plaintiff is seeking _. special dam~ges which .entails that th_e da.rri.age occasioned can easily be quil-Iltified and compensated for by an award of damages should it succeed at trial, I find that it is inappropriate on the facts of this case to discuss the question of balance of convenience. In addition to what I have stated above, I have considered that one of the · factors that affects the Court's discretion when consid ering an application for interlocutory injunction is delay. The learn ed auth ors of Commercial Litigation: Pre-emptive Remedies at page 70, ther efore state that: "As with all equitable relief; delay is a relevant factor in relief: interlocutory. proceedings -injunctive for vigilantibus non dormie?1tibus jura subcenient- a plaintiff should not sleep on his rights.,: -R23- Matibini P. the learned author of the recently published b ook entitled Zambian Civil Procedure: Commentarv and Cases Volum e 1 also s tates at page 770 .t h a t : "Since the power to g:rant or refuse to grant an interim injunction is discretionary and equitable, it 1nay be refused even if all the conditions set out in the American Cyanan1id case are satisfied for instance, it may be refused on the ground of delay ... " V. Th at I have h ighligh ted a bove is in line with th e Latin m axim that 'Equity aids the vigilant..not those:who slumber on their rights. This is the attitude that has been taken by most English courts as was . . . stated by Oliver . J. in h is obiter dicta in th e case of Societe Fran<,oise . ' - . ··.. . - . d'Applications . Commerciales · · et . Industrielles S. A. R. L. v ~lectronic Concepts Limited (8l wh en he observed t h a t : "He drew my attention to a number of cases supporting _ the -well-known rule that dela. in launching :proceedings for interlocut~ry r.e~ief m.ay be . . . . fatal and in particular to Kentex Chemicals Inc. vs. ·Ken itex · Textured .. Coating Ltd [1965] 2 ·F. S. R. 109 wheTe a ·delay of some three months was considered fatal and a similar case of Bravingtons Ltd v Barri~gton Te!inant [1957] R. P. C 183 whe_re again t~~~e was _ an ~nexpla~ned tpree months' .delay _which -R24- . ' was considered fatal. .. " (Underline mine for emphasis only). In this regard, the case of Shepard Homes Limited v. Sandham (91 is persuasive. In that case the defendant was a purchaser of a plot of land on a large housing estate on which he built his home. In breach of a restrictive coven ant (designed to maintai.---i the open-planned ' . . . ' . concept) the defendant erected a garden fence. His motive was to restrain the repeated incursions of sheep. The defendant did not h eed a letter from the Plaint iffs solicitor dated Septe1nber 11 , 1969 to remove the fence. This prompted the plaintiff to launch proceedings on October 23, 1969. But then the plaintiff did nothing until he gave notice of motion for a mandatory interlocutory injunction on February 25, 1970 . Megarry J , held inter alia that: "Furthermore, the status quo for any reasonable period prior to the service of the notice of motion is thsi.t of the defendant's fence bt:ing in situ, so that t~e injunction sought will disturb rather than preserve anything that can fairly be called the status quo." Therefore, the Judge refused a. mandatory interlocutory injunction inter alia by :rea son of· the :plaintiffs .delay for five months before mo ving to h ave pulled down 'the g~den f~nce erected in breach of'a restrictive covenant . . ' --n2s- In the present case, the Plaintiff deposed in paragraphs 18 and 19 of the affidavit in support that the 2 nd Defendant on or about the year 2017 without the consent of the Plaintiff blocked the natural flow of waste and rain water from the Plaintiffs premises onto the service lane resulting in untold misery and damage to the property on the Plaintiffs premises. That when the Plaintiff inquired, it came to lmow that the 2nd Defendant had in possession a Certificate of Title which included the part of land of the service lane which bordered the Plaintiff's land on the eastern side. It is further deposed that the 2 ·nd Defendant not only blocked the n atural flow of waste an.d rain water from the Plaintiffs ·premises to drain into the service lane but also built a wall fence along the section of the service lane through which waste and rain water from the Plaintiffs premises joined the service lane. Following thes e actions taken by the 2 nd Defendant, the Plaintiff engaged the l sL Defendant as a Planning Authority for Lusaka City and responsible for maintaining drainages. That despite the m eetings and site visits conducted by officials from the ]_ st Defendant, the ]_st Defendant had not taken any action to r emedy the situation as shoV\m by exhibits marked 'PM1VI6' . -R26- Given the foregoing, it is clear that the Plaintiff knew about the actions a llegedly taken by the 2 nd Defendant as far back as 2017/2018 as shown in paragraph 18 and a lso exhibits marked 'PMM6' because it had engaged the 1 st Defendant to remedy the situation. The view tha t I hold therefore is that the Plaintiff has not resorted to this Court promptly to seek this equitable relief for a n order of injunction to restrain the 2 nd Defendant from b locking access points into the service 1aJ1e on the eastern side of its proper ty. If the Plaintiff wished to invoke this Courts intervention and protection, it should have done so at the tim e when it alleges the problems started, th.at is in 2017/2018. The Plaintiff did not do that. In this regard, I fully subscr ibe to what Megarry J. stated in the case Bates v. Lord Halisham of St Marylebone and others 1101 that: "An application m ade at 2p.m for an injunction to restrain certain a~ts which may take place at 4.30 p.m. on the :;an1e day is an application 1nade at a desperately late hou r .... an injunction is a serious matter and must be t reat ed seriously. If there is a plaintiff who has known about a . proposal for 10 weeks .in general terms and for nearly four weeks in detail and he wants an injunction to preve_nt the effect be_i1'g given. to it at a ~eeting ~-f which h_e has kno.wn ,for_ we ll o"'.e r a Jortnight, he must haye a most cqgent e ?{planation if he is to obtain hi~ i~junction -R27- on an ex parte application made two and a half hours before the meeting is due to 'begin." Given the foregoing, I am of the view that m akin g an application in 2022 to restrain the 2 11d Defendant from blocking the access points is an application made at a late hour. This is because the delay in launching proceedings against the Defendants has resulted in the 2 nd Defendant not · only taking possession of its property but also commencing construction works on th e property. No cogent reason why there has been a delay has been proffered. In this ·regard, even if I was to consider the contents of paragraphs 26 and 27 of the affidavit in support that it engaged the 1s t Defendant to redress the situation but it abrogated its r esponsibility, it is clear that the request was not attended to by the 1 st Defendant. That notwithstanding, the Plaintiff did not take any action at that stage to seek the Courts prote~tion. Th e delay therefore for tifies the argument by the 2nd Defendant which I agree with that the Plaintiff cannot at this stage come to Court and seek a prohibitory injunction restrainin.g it from doing ·something that . h as already been done . In short, there is nothing to injunct. In my . view, the situation would have been different if the Plaintiff had - R28- sought a mandatory injunction directing the 2nd Defendant to undo certain acts. However, that is not the position. On this score as well, I find that the facts of the case do not warrant an ir0unction being granted. The net result qf my findings based on the fundamental.principles of injunction law, is that the Plaintif( has failed to make out its case for the exercise o( my discretion to. grant an interim injunction in its favour. I therefore decline to grant the order sought. The application is dismissed. but I make no order as to costs. DELIVERED A:'r LUSAKA THIS 22ND DAY OF APRIL, 2024 ,• . -R29-