Noah Chaifyala (Suing on his own behald and on behald of over 300 Ors) v Subsahara Gemstone Exchange and Ors (2025/HN/372) [2025] ZMHC 112 (20 November 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE DISTRICT REGISTRY HOLDEN AT NDOLA (CivilJurisdiction) REPUBIC HeCOURY 6F ZAMNIA ZAMBA 20 NOV 2025 2025/HN/372 OF BETWEEN CiVI NDOUA HGH COURT NOAH CHAIFYALA (Suing on his own behalf and on behalf of over 300 others) AND PLAINTIFF SUBSAHARA GEMSTONE EXCHANGE PHESTO NDOLOLO MUSONDA NDOLA CITY COUNCIL ATTORNEY GENERAL 1$T DEFENDANT 2ND DEFENDANT 3RD DEFENDANT 4TH DEFENDANT Delivered 20th day of November, 2025 in Chambers by Hon. Mr. Justice L. Mwale on the For the Plaintiff: For the 1st and 2nd Defendants: For the 3rd Defendant: For the 4th Defendant: Mrs. M. N. Mwansa of Messrs K. Tembo & Co Advocates Mr. T. Kasweshi of Messrs Ellis & Co. Mrs. B. Makina, in-house Counsel Mrs. B. K. Attorney Chambers Chisanga, General's RULING ON THE PLAINTIFF'S APPLICATION FOR AN ORDER OF INTERIM INJUNCTION Cases referred to: Z. Harton Ndove (1980)ZR 185 v Zambia E(cid:26)ucational Company Limited 2. Shell &BP Zambia Limited vConidaris & others(1975) ZR 174 3. Turnkey Limited Lusaka West Properties Developments Company (1984)ZR 105 Legislation referred to: 1. The High Court Rules,Chapter 27 0f the Laus (cid:26) Zambia. 2. StatutoryInstrument No. 49 of2010 INTRODUCTION AND BACKGROUND 1.0 1.1 This is the Plaintiff's application for an order of Interim to Order 27 Rule 4 of the Injunction made pursuant High Court Rules, Chapter 27 of the Laws of Zambia and is supported by an affidavit sworn by one Noah Chaifyala, the Plaintiff herein, Skeleton Arguments and List of Authorities all filed on 8th August, 2025. The exparte Order of Interim Injunction was granted on 22nd August, 2025. 1.2 The 1st and 2nd Defendants opposed the Plaintiff's application and on 4th September, 2025, filed the Affidavit in Opposition sworn by the 2nd Defendant, R2 Phesto Ndololo Musonda, together with the attendant Skeleton Arguments and List of Authorities. 1.3 3r(cid:26) Defendant equally opposed the Similarly, the Plaintiffs application and on 19th September, 2025, filed an Affidavit in Opposition sworn by one George Mulenga, the Town Clerk of the 3rd Defendant, together with the List of Authorities and Skeleton Arguments. 1.4 The brief background to the Plaintiff's application is that claiming of Claim on 7th August, 2025, the Plaintiff issued out of Court a Writ of Summons and Statement against the Defendants an order that the Plaintiff and the over 300others are the rightful owners of the Kaloko Trade Fair and Old Regiment Community area, an order of injunction restraining the Defendants by themselves, their servants or agents from demolishing structures and interfering with the Plaintiff's and over 300 occupants of the Kaloko Trade Fair and Old quiet possession Regiment Community interest on damages, costs and any other relief the Court area, damages for trespass, may deem fit. R3 1.5 1.6 2.0 2.1 On 4h September, 2025, the 1st and 2nd Defendants entered appearance and filed Defence and all the relevant documents and Counterclaim against the Plaintiff. Similarly, on 12th September, 2025, the 3rd Defendant entered appearance filed its Defence and the accompanying documents to the Plaintiff'saction. THE PLAINTIFF'S AFFIDAVIT IN SUPPORT In the Affidavit in Support of the application, the Plaintiff, Noah Chaifyala, deposed that he is the chairperson of the Kaloko Trade Fair and Old Regiment Community area which was firstly established in the 1960's as a small holdings farming area. 2.1 He stated that in 1996, the Copper refinery was sold to Minerva Zambia Limited and later taken over by Subsahara Gemstone after Minerva went into liquidation in 2000. He further stated that in 2003, the farmers in the area applied for demarcation through the Ministry of Agriculture and paid the necessary fees to the Council. 2.2 Mr. Chaifyala averred that in 2019, there was a meeting at Ndola City Council where the 2nd Defendant claimed R4 2.3 ownership and produced a 2010 for industrial yard. Statutory Instrument The deponentfurther stated that during another meeting at Ministry of Lands in 2021.the 2nd Defendant was asked to produce ownership documents but only produced the 2010 Statutory Instrument; the approved Site plans for Phase 1,2 and 3 and minutes for each phase from the 3rd Defendant were exhibited and marked NC19 and NC2," He stated that Phase 1 and 2 were fully numbered with Ministry of Lands and occupants were issued with demand notices, recommendation letters, offer letters, titles from both the Council and Ministry of Lands. To this end, the application for numbering to the council and set of demand notices, titles and offer letters were exhibited and collectively marked as “NC3"and “NC4," 2.4 The Plaintiff averred that the recommendation from the 3rd Defendant and application for numbering for phase 3 have been paid for and submitted by the community with the matter currently pending under case numberMLNR R5 2.5 1-1365750/7-2025 and minute number PIS 78/05/2022. 1r. Chaifyala deposed that on 27th February, 2023, all Occupants were invited to Cabinet House in the office of the Deputy Permanent Secretary (DPS) where they were ordered to surrender their titles and all documentation pertaining to their portions of land by 1st March, 2023 and the DPS informed them that all documents pertaining to that land were cancelled and that the officials from Ministry of Lands and the 3rd Defendant were present but were not allowed to speak. Consequently, the Plaintiff engaged Counsel who wrote a demand letter to the DPS as shown by exhibit marked "NC5." 2.6 He stated that on 14th march, 2023, the Ministry of Lands issued a demand notice to the 1st Defendant for survey fees on the land that is already surveyed and titled; the said demand notice is exhibited as "NC6." 2.7 The deponent further stated that in 2021, the 3rd Defendant re-planned the area dividing it into phases 1, R6 2 and 3 with approved site plans, and that phases l and were fully numbered and the occupants received demand notices, offer letters and titles. 2.8 He averred that on 17th July. 2025, the 2nd Defendant went to the settlement area with some Chinese nationals to survey the area and that 3 days later, he received a phone call from the Officer In Charge at Indeni Police Post informing him that Police Officers would be coming to the community to give protection to the 2nd area. Defendant's workers who were commencing works in the He stated that on 21st July, 2025, the Police the 2nd Defendant's workers who Officers accompanied cameon site with a grader from Zambia National Service (ZNS)and begun burying foundations, breaking beacons and demolished a wall fence. 3.0 THE 18T AND 2ND DEFENDANTS' AFFIDAVIT IN OPPOSITION 3.1 As earlier mentioned, the 1st and 2nd Defendant opposed the Plaintiff's application and filed an Affidavit in Opposition on 4h September, 2025. In it, the deponent, R7 3.2 3.3 Phesto Ndololo Musonda, the 2nd Defendant herein, stated that theland in dispute is owned by the Defendant in which he is the majority shareholder. 1st holds titles to He further stated that the 1 st Defendant the properties of Farm J/1 Subdivision 415a, Subdivision L of Farm 415a and Subdivision M of Farm 415a since the year 2010 after it purchased from Minerva Zambia Limited which was under liquidation. The Certificate of Title for the properties were exhibited and collectively marked “PNM1." Mr. Musonda further stated that the 1st Defendant has established an Industrial Park Comprising of several pieces of land and the same was established by way of Statutory Instrument No. 49of 2010 and the same was exhibited as "PNM2" which included a letter from the Ministry of Commerce, Trade and Industry. He averred that the Plaintiff and others are encroachers and that the matter is contested in an active matter before the Ndola High Court under cause No. 2023/HN/150. R8 Phesto Ndololo stated that the land in Defendant in Musonda, the 2nd Defendant herein, dispute is owned by the 1st which he isthe majority shareholder. further stated that the 1st Defendant holds titles to properties Subdivision J/1 of Farm 415a, 3.2 He the Subdivision L of Farm 415a and Subdivision M of Farm 415a since the vear 2010 after it purchased Minerva Zambia Limited which was under liquidation. The Certificate of Title for the properties were exhibited and collectively marked “PNM1." from 3.3 Mr. Musonda further stated that the 1st Defendant has established an Industrial of several pieces of larnd and the same was established by way of Park Comprising Statutory Instrument No. 49 of 2010 and the same was exhibited as "PNM2" which included a letter from the Ministry of Commerce,Trade and Industry. He averred that the Plaintiff and others are encroachers and that the matter is contested in an active matter before the Ndola High Court under cause No. 2023/HN/150. R8 3.4 The deponent further averred thatthe Ministry was engaged to conduct a boundary verification order to ascertain whether or not the Plaintiff in of Lands exercise and J/1 of 415a, Subdivision others were legally occupying Subdivision L of Farm 415a and Subdivision M of Farm General, the report of the Surveyor 415a and from exhibited as "PNM3," it was found that the Plaintiff all other were encroachers and had nothing to do with and the 1st Defendant's properties. 3.5 Mr. Musonda averred that the 1st and 2nd Defendant have an on-going project that is being undertaken between the of the project and the as the host 2nd Defendant Industrial Development purpose of building a new (IDC) for Corporation Oil Refinery valued at USD1.5 the billion to expand Indeni Oil Refinery. Copies of the MFEZ permit and letter from Zambia Development Agency (ZDA)were exhibited as "PNM4." 4.0 THE 3D DEFENDANT'SAFFIDAVIT IN OPPOSITION 4.1 Asearlier mentioned, the 3rd Defendant equally opposed the Plaintiff's application and filed intoCourt an Affidavit R9 in Opposition sworn by one George Mulenga, the 3rd Defendant's Town Clerk. In it, the 3rd deposed that Defendant is the only Planning Authority in the Mr. Mulenga 4.2 4.3 district andthat there is no record at its creation of a settlement in the area in question which is bare land and an Industrial area. offices for any He further averred that the documents exhibited by the Plaintiff in his Affidavit in Support are in relation to a different area altogether. He further deposed that the prported Site Plan dated 19th May, 2022 (NC1) bears his name and signature at the time he had not even been appointed to serve at the 3rd Defendant. Additionally, that the document exhibited by the Plaintiff as “NC2" bears his names and signature on dates he had not been appointed to serve at the 3rd Defendant. 5.0 THE PLAINTIFF'S AFFIDAVIT IN REPLY 5.1 On 15th September, 2025, the Plaintiff filed an Affidavit in Reply to the process in opposition filed by the Defendants. In it,the Plaintiff more or less repeated his R10 averments in the Affidavit in Support of the application. No. under Cause the that matter He stated 2025/HN/ 1 50 wvas never brought to final determination and judgment was not delivered as the action was discontinued onthe guidance of Counsel Mr. Chaifyala further stated that the verification atthetime. exercise by the 2nd to the claims was not done, contrary Defendant as the land had already been surveyed, titles issued and structures erected. THE PARTIES' SKELETON ARGUMENTS Counsel for the parties filed Skeleton Arguments and List of Authorities to augment their respective positions but I shall not belabour to reproduce them here. However, as itshall soon become apparent, I shallbe referring to the relevant ones as and when need arises in determining 5.2 6.0 6.1 this application. 7.0 AT THE HEARING 7.1 When the matter came up for hearing on l6th September, that the Ruling 2025, Counsel for the parties agreed would be delivered based on the relevant documents filed Suffice to state that the 4th Defendant did by the parties. R11 averments in the He stated Affidavit in Support of the application. that the matter under 2025/HN/150 was never brought to final and judgment was not delivered as the action was Cause No. determination 5.2 6.0 6.1 discontinued on the guidance of Counsel atthe time. Mr. Chaifyala further stated that the verification exercise was not done, contrary to the claims by the 2-d Defendant as the land had already been surveyed, titles issued andstructures erected. THE PARTIES SKELETON ARGUMENTS Counsel for the parties filed Skeleton Arguments and List of Authorities to augment their respective positions but I shall not belabour to reproduce them here. However,as it shall soon become apparent, I shall be referring to the relevant ones as and when need arises in determining this application. 7.0 AT THE HEARING 7.1 When the matter came up for hearing on 16th September, 2025, Counsel for the parties agreed that the Ruling would be delivered based on the relevant documents filed by the parties. Suffice to state that the 4th Defendant did R11 averments in the He stated that the Affidavit in Support of the application. matter under Cause No. 2025/HN/150 was never brought to final determination as the action was judgment was not delivered and 5.2 6.0 6.1 discontinued on the guidance of Counsel atthe time. Mr. Chaifyala further stated that the verification exercise was not done, contrary to the claims by the 2nd Defendant as the land had already been surveyed, titles issued and structures erected. THE PARTIES SKELETON ARGUMENTS Counsel for the parties filed Skeleton Arguments and List of Authorities to augment their respective positions but I shall not belabour to reproduce them here. However, as it shall soon become apparent, I shall be referring to the relevant ones as and when need arises in determining this application. 7.0 AT THE HEARING 7.1 When thematter came up for hearing on 16th September, 2025, Counsel for the parties agreed that the Ruling would be delivered based on the relevant documents filed by the parties. Suffice to state that the 4th Defendant did R11 8.0 8.1 1ot ile any process in Court to either support or oppoSe the Plaintiff's application. CONSIDERATIONS, ANALYSIS AND DECISION 1 have carefully considered the Plaintiff's application for an order of Interim Injunction together with the Affidavit n Support and in Reply as well as the attendant Skeleton Arguments and List of Authorities. 8.2 In the same measure,Ihave equally carefullyconsidered the Affidavit in Opposition filed by the 1st and 2nd Defendants and the one filed by the 3rd Defendant together with the respective attendant Skeleton Arguments and List of Authorities. 8.3 It is abundantly clear to me that the area over which the Plaintiff seeks an interlocutory injunction against the Defendants is not distinctively defined but is only referred to as Kaloko Trade Fair and old Regiment Community area. The only document that appears to loosely define the area is a site plan dated 19th May, 2022 exhibited as "NC1" in the Plaintiffs Affidavit in Support of the application. 8.4 Additionally, the exhibit marked “NC2" in the said affidavit is a letter dated 13th May, 2022 addressed to the R12 8.5 8.6 Chief Lands Officer at Ministry Resources the land at of Lands and National requesting the Ministry to number and survey Kaloko Industrial area. The Plaintiff also appears to rely on a Certificate of Title issued on 29th November, 2024 in the name of Evelyn Lengwe and an offer letter dated 13th December,2022. However, both exhibits “NC1" and “NC2" mentioned above have been disputed by the 3rd Defendant as they bear the names and signature of one George Mulenga who stated in the Affidavit in Opposition filed on 19th September,2025 that he had not yet assumed the role of Town Clerk at Ndola City Council on the dates that have been indicated. Additionally, even the extract of minutes exhibited as NC2 bears the name and signature of George Mulenga as Town Clerk of Ndola City Council when he was actually Town Clerk of Chililabombwe Council as at 22nd May, 2022. In fact, a perusal of the Defence filed by the 3rd Defendant asserts that the said documents are Municipal forgeries. 8.7 On the other hand, the affidavit evidence deployed by the 1st and 2nd Defendants shows that the 1st Defendant has R13 been the title holder of properties Subdivision (cid:26)i Farm 415a, Subdivision L of Earm 415a and Subdivision M of 415a from 2010 and there is no proof that the Selu Properties have been re-entered nor that titles have been cancelled. The said Certificates of Title are collectively exhibited as PNM1 in the Affidavit in Opposition filed on 4th September, 2025. 8.8 Additionally, the survey diagrams attached to the said Certificates of Title actually show that the pieces of land in question were surveyed in 2009 way before the titles Furthermore, an for some of the Plaintiffs were issued. intimate examination of the exhibit marked PNM2, in the Affidavit in Opposition, namely Statutory Instrument No. 49 of 2010 shows that the combined area owned by the 1st Defendant was declared as an Industrial Park on 25th June, 2010. 8.9 The 1st and 2nd Defendants have exhibited a survey report (PNM3)dated 20th March, 2023 conducted by the Survey Department of the Ministry of Lands and Natural Resources which shows that an encroachment exists on the properties ownedby the 1st Defendant. R14 8.10 Giventheforegoing,the pertinent issue for determination at this point is whether or not the Plaintiffis entitled to the order of the Interim Injunction. 8.11 As rightly submitted by Counsel for the Plaintiffand held in the case of Harton Ndove v Zambia Educational Company Limited', "In an application for an injunction, though the Court is not called upon to decide finally on the rights of the parties, it is necessary that the Court should be satisfied that there is a serious question to be tried at the hearing, and that on the facts before it, there is a probability that the Plaintiff is entitled to relief." 8.12 Additionally, in the case of Turnkey Properties Limited v Lusaka West Developments Company², which has been cited byboth Counsel for the Plaintiff and for the 1st and 2nd Defendants, the Court opined that: (1980)ZR 185 '(1984) ZR 105 R15 "In order to succeed, the Appellant shoula have demonstrated that not only was their right to relief clear, but above all that the injunction is necessary to protect them from irreparable injury." 8.13 In fact, the foregoing was theposition of the Supreme Court in an earlier case of Shell & Bp Zambia Limited v Conidaris & others³ when it held that: "A Court will not grant an interlocutory injunction unless the right to relief is clear and the injunction isnecessary toprotect the Plaintiff from irreparable injury, mere inconvenience is not enough, irreparable injury being that which cannot be remedied or atoned for by damages." 8.14 As earlier mentioned, the 1st and 2nd Defendants have exhibited Certificates ofTitle relating to the pieces of land issued to the 1st Defendant in 2010. 8.15 On the other hand, the Plaintiff appears to rely on adverse possession by claiming that Kaloko Trade Fair and Old Regiment Community Settlement area has been '(1975)ZR 1741 R16 in existence since the 1960s and the settlers have been that time and some to some activities from dong farming been issued Certificates of Title that have settlers post 2010. Suffice to state that the schedule of settlers 8.16 with title deeds exhibited by the Plaintiff in the Affidavit in Reply was actually extracted filed on 15th September, from the Survey Defendants Report exhibited by the 1st and 2nd in the Affidavit in Opposition showing that on the land owWned by the lst there is an encroachment 8.17 Defendant. Be that as it may, without delving into the gravemen of the main matter, I hold the firm view that the Plaintiff that there is a serious question to has not demonstrated be tried and that his right to relief is clear. As things stand, the balance of convenience weighs heavily against the grant of an order of Interim injunction. CONCLUSION AND ORDERS The Plaintiff has not satisfied the pre-conditions for the 9.0 9.1 grant of the equitable relief of an order of interlocutory injunction. Consequently, I take the view that there is no serious question to be tried at the hearing and that R17 the Plaintiff's right to relief is not clear in the light of facts of this case. 9.2 Therefore, exparte order of interim injunction that was granted to the Plaintiff on 222nd August, 2025 is hereby discharged forthwith. 9.3 I award costs to the 1st, 2nd and 3rd Defendants, to be agreed and in default taxed. 9.4 The matter shall come up on gth December, 2025 at 08:30 hoursfor issuance of orders for directions. Delivered at Ndola under my hand this 20th day of NovembepA REPUBLUDICIARY L. Mwale JUDGE OF THE HIGH òoURT HIGH 1 COURT 20NOV 2025 JUDGEI P. O. BOx 7o004 MWALE NDOLA. R18