The Cargo Hotel Limited (T/A Cargo 88 Hotel) v Dacapo Coffee Bar & Lounge Limited (T/A Dacapo's) (2024/HPC/0353) [2024] ZMHC 222 (20 June 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil J u ris diction) BETWEEN: --H~IG~H~C~O~U~~O~F~7. A~M~B~ '-'1'1'/HPC/03 S3 JUDIO AP.\' COMMERCIAL DIVISION ii 2 0 JUN ZUZ4 ~ REG ISTRY 0 !7 P. O. BOX soot>,, LUSAKA THE CARGO HOTEL LIMITED(T / A Cargo 88 Hotel) PLAINTIFF AND DACAPO COFFEE BAR & LOUNGE LIMITED (T / A Dacapo's) DEFENDANT Before the Honourable Lady Justice Chilombo Bridget Maka. For the Plaintiff: Mr. K. Mulenga - Messrs J. M Advocates. For the Defendant: Mr. P. Chungu & Ms. M. Kopalande - Messrs Ranchold Chungu Advocates RULING Legislation Referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia. 2. The Rules of the Supreme Court of England, 1999 Edition(White Book). Cases Referred to: 1. Turnkey Properties vs. Lusaka West Development Company Limited, B. S. K. Chiti (sued as Receiver), and Zambia State Insurance Corporation Limited (1984) Z. R. 85 (S. C.). 2. Hambali M. Hantontola vs. The Council of the University of Zambia Appeal No. 215/2014. 3. Daniel Peyala v Zambia Consolidated Copper Mines SCZ Appeal No. 81 of 2012. 4. Shell & BP Zambia Limited vs Conidaris and Others (1975) Z. R, 174. 5. Zimco Properties vs. Lapco Limited (1988-1989) Z. R, 92. 1. Introduction. 1.1. This Ruling addresses the Plaintiff's application for an Order for interim injunction made by way of Summons supported by affidavit and skeleton argument. 1.2. The Plaintiff's application was submitted on the 16th May, 2024 pursuant to Order 27 of the High Court Rules as read with Order 29 Rule 1 of the Rules of the Supreme Court of England, 1999 Edition (White Book). 1.3. The Plaintiff's application is aimed at restraining the Defendant from operating an illegal bar and night club at the premises known as DACAPO's located at East Park Mall and from playing loud music and from causing a public nuisance through the noise disturbance caused by the said bar /night club. 1. 4. The Defendant contested the Plaintiff's application by filing into Court an affidavit in opposition along with skeleton arguments, all dated 30th May, 2024. 2. Background. 2 .1. By way of Writ of Summons accompanied by statement of claim, the Plaintiff initiated an action against the Defendant on 16th May, 2024. 2 .2. The reliefs being sought by the Plaintiff, as endorsed on the Writ, are as follows:- R2 i. An Order that the Defendant's action of operating outside the terms of its lease agreement by running an afterhours bar and nightclub and playing loud music in the night club is offensive, illegal and negatively affects the businesses of other tenants, particularly, the Plaintiff and is therefore public nuisance; ii. An Order that the Defendant's rights to operate their business are directly tied to and limited by other tenants' rights to operate business without interference and failure by the Defendant to abide by a lease which results in damage to a fellow tenant is a nuisance; iii. Damages for public nuisance, and inconvenience against the Defendant for causing inconvenience and loss to the Plaintifrs business on account of the continued loud noise and commotion emanating from the Defendant's illegal night club on premises opposite the Plaintifrs Hotel premises, which by lease, the Defendant is restricted to operating only a coffee shop during the day; iv. Damages for loss of earnings as particularised in paragraph 13. 1; v . An Order of injunction restraining the Defendant from causing a public nuisance by operating an illegal bar and night club on its rented premises commonly known as DACAPO's located at East Park Mall opposite the Plaintifrs Hotel known as CARGO 88 HOTEL and from disrupting the Plaintiff's quiet enjoyment of its demised Hotel premises; vi. Costs; and vii. Any other relief that this Court deems fit. 2.3. On 30th May, 2024, the Defend ant en ter ed a ppearance and s ettled its defen ce against the action . R3 3. The Plaintiff's Case. 3. 1. The core of the evidence supporting the application was that the applicant was operating a Hotel at East Park Mall as a tenant of Graduare Properties Development Limited (the landlord). Before finalizing the lease agreement, the location was assessed and deemed to have minimal disturbances. Additionally, the neighboring leases across from the Plaintiff's Hotel were confirmed to be service stores, eateries, and coffee/ drink shops, all of which were unlikely to attract large crowds, generate noise pollution, or serve alcohol. 3.2. It was stated that the landlord confirmed the Defendant was also a tenant at East Park Mall, operating a coffee shop that would not disrupt the operations of the Plaintiffs hotel. Copies of the Defendant's lease agreement and operating license were submitted as exhibits "MBM2" and ''MBM3," respectively. 3 .3. It was further alleged that the Defendant breached the terms of its lease by transforming into a full-time nightclub without the landlord's consent. This change resulted in the Defendant extending its operating hours and serving alcoholic beverages, causing noise and disruption for the Plaintiff's hotel business. The noise emissions from the Defendant's business have become a public nuisance. 3.4. Additionally, that due to the noise em1ss1ons from the Defendant, the University of Zambia (UNZA), the Plaintiff, and others lodged complaints with the landlord. Correspondence regarding these complaints were submitted as exhibits "MBM4," "MBMS," "MBM6," "MBM9," and "MBMlO" . R4 3.5. Furthermore, that the landlord addressed these complaints with the Defendant, as evidenced by letters marked "MBMT' and "MBM8." That the Defendant's continued illegal operation of a nightclub constitutes a public nuisance that has severely impacted the Plaintiff's Hotel business. 4. The Defendant's Case. 4.1. The primary evidence presented by the Defendant in opposition to the application is that throughout the tenancy, the landlord has always been aware of the Defendant's operations. Furthermore, the landlord was aware that the Defendant was attracting more patrons and even granted its requests for additional space and amenities. 4. 2. It was asserted that the landlord was fully aware that the Defendant served alcoholic beverages and operated beyond 21 :00 hours. Additionally, the Defendant operated under the authority of its restaurant license, which permitted 24-hour service. 4.3. That during the tenancy, the landlord had no issues with the Defendant until recently, when concerns about littering, rowdy behavior in public areas, garbage, and accidents were raised. However, the timing of these issues coincided with the completion of the Hotel by the Plaintiff. 4.4. It was further asserted that the issues being attributed to the Defendant are the responsibility of the landlord, not the Defendant. Additionally, that the Defendant had no control over the conduct of its patrons. RS 4.5. It was also asserted that the landlord had orchestrated the complaints against the Defendant in an effort to invoke a breach of the lease agreement and remove the Defendant. The landlord attempted to evict the Defendant, but this attempt was resisted, leading the Defendant to initiate legal proceedings against the landlord under Cause No. 2023/HP/2290, in which it obtained an injunction against being evicted. 4.6. The Defendant asserted that a search conducted at the Patents and Companies Registration Agency (PACRA) revealed common shareholders between the landlord and the Plaintiff. Copies of the search results for both companies were produced and marked as "DI3" and "DI4" respectively. Therefore, the Plaintiff was fully aware of the Defendant's relationship with the landlord and its operations before occupying the East Park Mall. 4 .7. Furthermore, it was asserted that the issues to be determined under Cause No. 2023/HP/2290 were identical to the issues in the current matter. Therefore, separate determinations could potentially result in conflicting decisions on the same subject matter. It was also asserted that the Plaintiff was fully aware of the injunction obtained by the Defendant against the landlord in Cause No. 2023/HP/2290 before initiating this action, suggesting an attempt to disadvantage the Defendant's business occupancy terms. 4 .8. It was further asserted that the Defendant engaged the Plaintiff in discussions regarding its grievances, which R6 resulted in the involvement of a Consultant who authored an Environmental Noise Assessment Report exhibited a s ''DI7". However, the Plaintiff did not attend the meeting scheduled to discuss the findings of the report. 4.9. The Defendant denied operating its business illegally and asserted that it plays audible music within reasonable limits considering the nature of its ongoing operations even before the Plaintiff began its business. Furthermore, the Defendant contended that the issues and incidents complained of cannot be attributed solely to its operations, as there are several other venues at East Park Mall where alcohol is served. 5. The Plaintifrs Case in Reply. 5.1. The responsive evidence emphasized that regardless of any agreements the Defendant had with the landlord, the Defendant was obligated not to operate in a manner that causes nuisance or inconvenience to the landlord and other tenants. Moreover, it was stated that operating under a restaurant license did not entitle the Defendant to operate a nightclub, thereby causing disturbances to other establishments. 5.2. It was asserted that, as confirmed by the landlord, several establishments and the Plaintiff lodged complaints regarding the noise disturbances caused by the Defendant operating as a nightclub. Furthermore, the landlord acknowledged that rowdy behavior, littering in the vicinity of the Plaintiffs R7 business, and accidents were attributed to the Defendant's operations. 5.3. The Plaintiff contended that the Defendant's operations constituted a public nuisance that adversely affected the Plaintiffs Hotel business. 5.4. Regarding the shareholding of the Plaintiff and Defendant, it was asserted that this is inconsequential as they are separate legal entities under the law, each uniquely affected by the Defendant's alleged nuisance. That the landlord issued an eviction notice to the Defendant following complaints of nuisance attributed to the Defendant's operations. It was further averred that the issues raised in this case differ from those in Cause No. 2023/HP/2290, thereby eliminating the possibility of conflicting decisions. That this case is not intended to bypass the proceedings under Cause No. 2023/HP /2290 but aims to address the public nuisance allegedly caused by the Defendant. 5.5. Furthermore, it was argued that the responsibility for security at the premises does not solely rest with the landlord. The Defendant also has a duty to other tenants to ensure that its operations do not disrupt the businesses of other establishments. 6. Hearing. 6.1. The Plaintiffs application was heard on June 3, 2024, with legal counsel representing both parties in attendance. R8 6.2. Mr. Mulenga, on behalf of the Plaintiff, relied on the filed affidavit and skeleton arguments dated May 16, 2024. He briefly emphasized that the application was prompted by the Plaintiffs complaint to the landlord, stressing that it was based on numerous complaints of noise pollution documented in exhibits "MB4" and "MB9". Mr. Mulenga prayed that the injunction be granted. 6.3. On behalf of the Defendant, Mr. Chungu stated that he was relying on the filed affidavit in opposition and skeleton arguments. Furthermore, Mr. Chungu argued that the alleged noise pollution constituted the core issue to be determined in the main action and should not be scrutinized at this juncture. He emphasized that the current focus should be on whether granting the injunction would preserve the status quo. 6.4. Mr. Chungu submitted that this application aimed to halt the Defendant's operations, potentially disadvantaging the Defendant. He also highlighted that while the Plaintiff began operating in February 2024, the Defendant had been in operation since July 2019, making this an attempt to halt an established activity of five years. 6.5. Mr. Chungu further argued that the exhibits relied upon by the Plaintiff preceded the Plaintiffs occupation at the Mall. He pointed out that there was a case before Hon. Justice Mwikisa concerning the lease agreement that the Plaintiff was attempting to challenge. Mr. Chungu noted that the Defendant had been granted an injunction in that case. He contended that any orders or injunctions granted in the current matter R9 might contradict the orders issued in the earlier case. Additionally, he argued that the Plaintiff was seeking a convenient order. 6.6. In reply, Mr. Mulenga relied on the affidavit and skeleton arguments in reply dated 31 sL May, 2024. 7. Consideration and Determination. 7 .1 . I have reviewed the Plaintiff's application, the supporting evidence, and the Defendant's opposition. I have a lso considered th e parties' respective skeleton arguments, which have not been summarized here but will be referenced when necessary. 7 .2. The Plaintiff's application for an Order of interim injunction is premised on the provision under Order XXVII Rule 4 of the High Court Rules which states as follows:- "In any suit for restraining the defendant from the committal of any breach of contract or other injury, and whether the same be accompanied by any claim for damages or not, it shall be lawful for the plaintiff, at any time after the commencement of the suit, and whether before or after judgment, to apply to the Court or a Judge for an injunction to restrain the defendant from the repetition or the continuance of the breach of contract or wrongful act complained of, or the committal of any breach of contract or injury of a like kind arising out of the same contract, or relating to the same property or right, and such injunction may be granted by the Court or a Judge on such terms as to the duration of the injunction, keeping an account, giving security or otherwise, as to the Court or a Judge shall seem reasonable and just." RlO 7 .3. Th e Plaintiff also r elied on Order 29 Rule 1 of the White Book which enacts a s follows:- "An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party's writ, originating summons, counterclaim or third party notice, as the case may be." 7 . 4 . The aforem en tion ed prov1s1ons clearly empower this Court with the discretion to grant interlocutory injunctions when deem ed a ppropria te . 7 .5 . The legal principles governing the grant or refusal of interim injunctions are well esta blish ed in our jurisdiction and h ave been reaffirmed in numerous cases. In th e seminal case of Turnkey Properties vs. Lusaka West Development Company Limited, B. S. K. Chiti (sued as Receiver), and Zambia State Insurance Corporation Limited( 11 the Suprem e Court guided as follows : "(i) An interlocutory injunction is appropriate for the preservation or restoration of a particular situation pending trial. (ii) It is improper for a court hearing an interlocutory application to make comments which may have the effect of pre-empting the decision of the issues which are to be decided on the merits to the trial. (iii) An interlocutory injunction should not be regarded as a device by which an applicant can attain or create new conditions favourable only to himself. Rll (iv) In applications for Interlocutory injunctions the possibility of damages being an adequate remedy should always be considered." 7.6. Further considerations were reiterated in the case of Hambali M. Hantontola vs. The Council of the University of Zambia12l, wherein it was held 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; mere inconvenience is not enough. Irreparable injury means injury which is substantial and cannot be adequately remedied or atoned for by damages, not injury which cannot be possibly repaired." 7. 7. The initial issue to be determined is whether the Plaintiff has a clear right to the relief sought and whether there are triable issues for determination. This assessment must be made without delving into the merits of the main action. 7 .8. In this application, the Plaintiff seeks to restrain the Defendant from operating an alleged illegal bar and nightclub, playing loud music, and causing public nuisance through noise disturbance. 7.9. It is undisputed that the Defendant has been operating a nightclub that attracts an increasing number of patrons. The Plaintiff alleges that the bar and nightclub operated by the Defendant are illegal and constitute a breach of the lease agreement with the landlord. The Plaintiff contends that the Defendant is not licensed to operate a bar and nightclub, R12 thereby making its operations illegal, especially late into the night. Moreover, the Plaintiff claims that the noISe disturbances caused by the Defendant's operations have adversely affected its Hotel business. 7 .10. The Defendant denied operating the bar and nightclub illegally, stating that it held a Restaurant Liquor Licence issued by the Lusaka City Council, which was presented as "DI 1 ". The Defendant asserted that this Licence permitted it to operate for 24 hours. Additionally, the Defendant argued that the music played at its establishment was reasonable considering the nature of its business. The Defendant challenged the Plaintiffs authority to bring this action, noting that the Plaintiff was not a party to the lease agreement. It was asserted that the Plaintiff lacked standing as it had no rights to enforce under the lease agreement between the Defendant and the landlord. Furthermore, the Defendant claimed that the Plaintiff had no valid cause of action and therefore should not be granted the interim relief it sought. 7 . 1 l. It is evident that both the Plaintiff and Defendant are tenants at East Park Mall, situated adjacent to each other. As tenants, they possess rights that should not be unreasonably infringed upon. Consequently, the Plaintiff commenced the main action alleging public nuisance due to noise pollution. The Plaintiff also alleged that the Defendant's operations were in breach of the lease agreement between the Defendant and the landlord and that the night club was being operated illegally. R13 7.12. As rightly submitted by the Defendant and in line with the doctrine of privity of contract, the Plaintiff cannot rely on a lease agreement to which it is not a party. The Plaintiff has no rights and obligations under the said lease agreement between the Defendant and the landlord, even if it was made aware of its contents. This legal principle was restated in the case of Daniel Peyala v Zambia Consolidated Copper Minesl3l wherein it was held that:- "The principle of privity of Contract provided that a Contract could not confer rights or impose obligations arising therefrom on to other persons except the parties .... only parties to a Contract can sue, enforce rights or claim damages in a contractual situation." 7.13. As regards the allegations of public nuisance through noise, I concur with Mr. Chungu who correctly pointed out that noise pollution forms the crux of the main action. This underscores the existence of a substantial issue to be adjudicated upon or a right to relief, thereby satisfying the initial condition for granting an interlocutory injunction. 7.14. Having established that there is an arguable case to be tried, the next condition pertains to whether the Plaintiff would suffer irreparable injury if the injunction is not granted. The concept of irreparable injury was elucidated in the case of Shell & BP Zambia Limited vs Conidaris and Others141 as follows:- R14 ", .. Irreparable injury means injury which is substantial and can never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired." 7.15. Upon review of the claims listed in the writ, I note that the Plaintiff seeks damages for nuisance and loss of earnings. This suggests that any loss the Plaintiff may incur due to the alleged public nuisance by the Defendant can be measured and adequately compensated with monetary damages. Furthermore, the Plaintiff has failed to convincingly demonstrate to this Court how it would suffer irreparable harm if the injunction is not granted. Consequently, the Plaintiff has not satisfied the second condition. 7.16. As regards where the balance of convenience lies, same only arises when irreparable damage has been established. This position was highlighted in the case of Zimco Properties vs. Lapco Limitedl5l as follows:- "The balance of convenience between the parties as to whether to grant an injunction will only arise if the harm done will be irreparable and damages will not suffice to recompense the Plaintiff for any harm which may be suffered." 7. 1 7. This Court will the ref ore not belabor to address its mind on where the balance of conveniences lies. 7.18. Based on the foregoing analysis, I find that this 1s not an appropriate case to exercise my discretion to grant an interlocutory injunction. Moreover, an injunction is one of the RlS remedies available in a public nuisance action. Therefore, granting the Plaintiff an interim injunction would pre-empt one of the main issues that need to be determined. 7.19. I also wish to point out that the Defendant's claims that the issues in this case mirror those in Cause No. 2023 /HP /2290 and that granting this application would contradict the order issued there are unfounded. This action does not seek to evict the Defendant but rather revolves around determining whether a public nuisance exists. 8. Conclusion and Orders. 8 . 1. The Plaintiff has demonstrated that there are substantial and debatable issues to be adjudicated. However, the Plaintiff has not shown that it would suffer irreparable injury, having instead sought damages in the main action. Given the facts and circumstances of this case, the Plaintiffs application lacks merit. 8 .2. Consequently, the Plaintiff's application for an interim Order of injunction is dismissed. 8.3. Costs shall be in the cause. 8.4. Leave to appeal is hereby granted. Delivered at Lusaka this 20th day of June, 2024 . ................ ~: ......... . Chilombo Bridget Maka HIGH COURT JUDGE Rl6