G & G Bakery Limited v Central Africa Baptist University Limited and 2 Ors (APPEAL NO. 168 OF 2025) (31 October 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 168 OF 2025 HOLDEN AT KABWE (Civil Jurisdiction) : i OCT " ·· ~'..I BETWEEN: G & G BAKERY LIMITED APPELLANT AND CENTRAL AFRICA BAPTIST UNIVERSITY 1 RESPONDENT ST LIMITED KITWE CITY COUNCIL 2ND RESPONDENT THE ATTORNEY GENERAL 3RD RESPONDENT CORAM: Chashi, Ngulube and Banda-Bobo, JJA ON: 15th and 31st October 2025 For the Appellant: (1) D. Mazumba, Messrs Douglas & Partners (2) J. Siwale, Messrs Siwale Nkonde, Legal Practitioners For the 1st Respondent: N/A For the 2nd Respondent: JMM Luwawa (Mrs) and D. Salange (Ms), In House Counsel For the 3rd Respondent: K. Malikembo - State Advocates JUDGMENT CHASHI JA, delivered the Judgment of the Court. -J 2Cases referred to: 1. Mwenya & Randee v Kapinga ( 1998) ZR, 17 2. Chrispin Lwali & Others v Edward Mumbi & Others - SCZ Judgment No. 7 of 2009 3. Shell & BP v Conidaris & Others (1975) ZR, 184 4. Mobil (Z) Ltd v Msiska ( 1983) ZR, 86 5. American Cyanamid Company v Ethicon Limited (1975) AC, 6. Wander Ltd & Another v Antox India (P) Ltd - 1990 (Supp), sec, Rules referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 1.0 INTRODUCTION 1.1 This is an appeal against the Ruling of Hon. Mr. Justice C. Chanda, delivered on 17th April 2025, granting the 1st Respondent an interlocutory injunction. 2.0 BACKGROUND 2.1 By way of writ of summons and statement of claim dated 2nd February 2024, the 1st Respondent, who was the -J 3plaintiff in the court below, commenced an action against the 2nd Respondent, 3rd Respondent and the Appellant, who were the 1st 2nd and 3rd Defendants respectively. It , sought inter alia declarations that the closure of road reserves/ access roads and the supersede diagrams obtained by the 3rd Defendant were illegal, cancellation of the supersede diagrams and restoration of reserves and access roads. 2.2 On the same date, the 1st Respondent applied for an interim injunction, alleging ownership of Stands No. 6651 and 8051 Riverside, Kitwe, which shared boundaries with the Appellant's properties. It was averred that access to Stand No. 6651 had for over 15 years been through road reserves. 2.3 It was alleged that the Appellant closed off these road reserves and access ways in 2016 and again in 2023, and commenced construction works. A survey report of 11th November 2022, was exhibited showing that the Appellant had extended its boundary by 2.6 meters into the 1st Respondent's property. -J 42.4 It was further alleged that the Appellant relied on irregularly obtained supersede diagrams and building permits for its construction on the road reserve. The 1st Respondent contended that the Appellant has since erected steel pillars on the road reserve and, if not restrained, would complete construction, making demolition and restoration difficult. It was argued that this was a proper case to grant an injunctive relief, as the construction obstructed the 1st Respondent's right of access. 2.5 In opposing the application, the Appellant denied that the 1st Respondent had longstanding access through the alleged road reserves, contending that the claimed routes were non existent as they were already taken up by other commercial properties. It maintained that its developments, including the multimillion dollar bakery, were strictly within the boundaries of its land and in accordance with planning and building permissions lawfully obtained after full Council deliberations. 2.6 The Appellant further denied the findings of the survey report and allegations of a 2.6 metre encroachment, -J 5asserting that its boundaries were properly defined by valid title deeds and that the supersede diagrams were lawfully issued. It asserted that the 1st Respondent continues to have alternative access to its property and that the injunction application is speculative, vexatious, and intended to frustrate the construction of the modern multimillion dollar bakery. 2.7 The Appellant submitted that no prejudice would be occasioned to the 1st Respondent if the order is refused, whereas granting it would cause grave injustice to the Appellant. It therefore argued that the 1st Respondent has failed to meet the threshold for the grant of an interim injunction and the application should be dismissed with costs. 2.8 The 2nd Respondent, on its part, supported the application for an interim injunction, contending that the land along Jarnbo drive constituted a road reserve and that the Appellant's guilding permission had been erroneously issued, on the basis of the original extent of the land which excluded the road reserve. -J 62.9 It averred that once it discovered that the Appellant's construction encroached on an existing public access road, it issued a stop order and advised the Appellant to revert to its original boundaries. The 2nd Respondent maintained that restraining the Appellant was necessary to protect the existing public access and to uphold the interests of justice. 3.0 RULING OF THE LOWER COURT 3.1 Upon considering the affidavit evidence, the arguments and principles governing the grant of injunctions, the learned Judge, opined that there was a serious question to be tried, on whether the Appellant had encroached and denied the 1st Respondent access way. He further found that the 1st Respondent had shown a clear right to the relief sought, particularly given the Appellant's admission that it would adjust its boundary if encroachment were proved. 3.2 On irreparable injury, the learned Judge held that blocking an access way or building on a road reserve interferes with the full enjoyment of land ownership. Relying on the case of Mwenya & Randee v Kapinga 1 the , Judge observed that deprivation of ownership or interest in land, however ordinary, cannot be adequately -J 7compensated by damages. That in casu, the denial of the right to the access way or road reserve amounted to irreparable injury as it restricted the 1st Respondent's enjoyment of its property. 3.3 The learned Judge further noted that the matter raised issues of compliance with the law regarding approval of supersede diagrams and planning permission, which had the effect of extending the Appellant's property into the road reserve. Citing Chrispin Lwali & Others v Edward Mumb i & Others2 the Judge held that questions of legal , compliance took the case outside the ordinary considerations for interlocutory injunctions. 3.4 He concluded that this was a proper case for the grant of an interim injunction pending determination of the main matter. 4.0 THE APPEAL 4.1 Disenchanted with the Ruling, the Appellants appealed to this Court advancing seven grounds of appeal couched as follows: -J 81. The Court erred in law and fact when it granted the Respondent an injunction despite the Resp,ondent failing to demonstrate how it will suffer any prejudice if the Appellant continued their construction of the modern building. 2. The court below erred in fact when it granted the Respondent an injunction based on the fact that the Supersede diagrams granted to the Applicant herein by the Surveyor General has encroached the Plaintiff's property stand 8051 Kitwe by 2.6 metres when in fact Stand 5880 Riverside Kitwe was previously owned by the Copperbelt University before the Applicant had legally acquired it from the University the said plot had already a wall fence and it is still the same wall fence currently in existence. 3. The Court below erred in fact when it granted the Respondent an injunction based on the fact that the Supersede diagrams granted to the Applicant herein by the Surveyor General has encroached -J 9the Plaintiff's property stand 8051 Kitwe by 2.6 metres when in fact it has not as the existing wall fence was built by the previous owners before even the said supersede diagrams were obtained by the Applicant. 4. That the court erred in law and fact when it granted an injunction to the Respondent based on the fact that the Respondent in the past 15 years it had access to its property stand 6651 Riverside Kitwe, via an access lane adjacent to Jambo Drive stemming from Almalik Street passing through SGC filling station when in fact the actual access lane is non-existent as the entire access lane has been taken up by commercial properties other than the Applicant's properties. 5. That the court below erred in fact when it granted an injunction to the Respondent based on the fact that the Applicant's extensions have encroached the Respondent's property by 2.6 meters and also closing off of the Respondent of its access ways -J 10when in actual fact the Respondent herein has access to its property adjacent to Jambo Drive Road and behind off Almalik Road in Lulamba Drive, Riverside Kitwe. 6. The court below erred in fact when it overlooked the fact that the Appellant before commencing the construction of the modern bakery prior approval was granted by the Kitwe City Council and that the Kitwe City Council did issue a missive to the Appellant herein directing the Appellant to adjust its extensions in order to provide access to the fueling station for safety as well as to provide access to various motorists and other road users of which the Appellant herein duly complied and the Respondent were aware of the intentions of the Appellant and in support even before the construction began as can be evidenced in a missive by the Respondent dated 27th June 2023. -J 117. The court below erred in law and fact when it granted the Respondent an Order of Injunction when the Respondent did not meet the threshold required for granting the Order of Injunctions. 5.0 ARGUMENTS IN SUPPORT 5.1 At the hearing of the appeal, we asked Counsel for the Appellant to show cause why the second, third, fourth and sixth grounds of appeal should not be expunged from the memorandum of appeal as in our view, they were narrative and argumentative. Counsel conceded that the said grounds offended the provisions of Order 10 / 9 (2) of The Court of Appeal Rules1 (CAR). It was on that basis that we only allowed Counsel to address us on grounds one, five and seven. 5.2 In support of ground one, the Appellant argued that the learned trial Judge erred by granting the 1st Respondent an interim injunction despite the absence of evidence showing how the Respondent would suffer prejudice if the Appellant proceeded with the construction of its modern bakery. The Appellant drew the Court's attention to the -J 12principles governing the grant of injunctions, as set out in Shell & BP v Conidaris & Others3 and reaffirmed in Mobil (Z) Ltd v Msiska, 4 which require that such relief only be granted to protect the plaintiff from irreparable injury where damages would not constitute an adequate remedy. 5.3 Similarly, reliance was placed on American Cyanamid v Ethicon Ltd,5 where Lord Diplock held that an interim injunction is improper where damages constitute an adequate remedy, particularly where the party against whom the injunction is sought is financially capable of satisfying any such award. The Appellant argued that, on the facts, the 1st Respondent failed to show any irreparable injury that could not be compensated by damages. 5.4 In support of ground five, it was argued that the Respondent's assertion that its access had been blocked was unfounded, since it continues to enjoy access to its property through Jambo Drive as well as through Lulamba Drive off Almalik Street without any obstacles from the Appellant. That the allegations of encroachment were merely speculative and intended to disadvantage the -J 13Appellant's quest to develop a million dollar modem day bakery. 5.5 Finally in ·support of ground seven, the Appellant argued that the Respondent wholly failed to meet the established principles for the grant of an injunction as set out in the American Cyanamid case. It was submitted that based on the facts on record, there was no serious question to be tried, no demonstration of irreparable harm, and the balance of convenience tilted in favour of the Appellant. 5.6 For all these reasons, the Appellant prays that the order of interim injunction granted by the High Court be set aside with costs. 6.0 ARGUMENTS IN OPPOSITION 6.1 The 1st 2nd and 3rd Respondents did not file heads of , argument. They were therefore not allowed to submit at the hearing. 7.0 OUR ANALYSIS AND DECISION 7.1 We have considered the Ruling being impugned and the arguments by the Appellant. We will consider the first and seventh grounds together, as they raise the central issue -J 14of whethe~ the learned Judge was correct in granting the interlocutory injunction in favour of the Respondent. The law on the grant of interlocutory injunctions is well settled. An applicant must generally demonstrate: 1. That there is a serious question to be tried; 2. That if the injunction is not granted, he or she will suffer irreparable injury that cannot be adequately compensated by damages; and 3. That the balance of convenience lies in favour of granting the re lief. 7 .2 This three limb test, flowing from authorities such as American Cyanamid case and consistently applied by our Courts, underscores that at this interlocutory stage, the Court is not required to make definitive findings of fact or to determine the merits of the parties' respective claims. Its duty is only to assess whether the case discloses sufficient substance to warrant preserving the status quo until trial. 7 .3 In the present case, the learned Judge properly directed himself to these principles. He first examined whether there was a serious question to be tried. On the record, -J 15there was affidavit evidence alleging that the Appellant had extended its boundary onto land forming part of a road reserve, and in doing so obstructed the Respondent's access. A survey report was exhibited in support of this allegation. Although the Appellant denied encroachment, it conceded that it would adjust its boundary if encroachment were proved. In our view, these circumstances clearly raised a bona fide and serious triable issue, justifying the learned Judge's finding on this limb. 7.4 Turning to irreparable injury, the learned Judge correctly appreciated that the denial of access to one's land, or construction on a road reserve, amounts to an interference with proprietary rights. Such interference is not easily quantifiable in monetary terms. In matters concerning land, the courts have consistently held that interference with such rights is ordinarily irreparable, given the uniqueness of land and the proprietary incidents attaching thereto. We therefore agree with the learned Judge that damages would not constitute an adequate -J 16remedy, and that the Respondent would likely suffer irreparable injury if the injunction were withheld. 7.5 Finally, on the balance of convenience, we note that while the Appellant claimed that delay in construction of its bakery would occasion financial loss, such loss is capable of being quantified and, if necessary, compensated. By contrast, if construction proceeded and the Respondent's access was permanently obstructed, or if the public road reserve was irretrievably altered, the injury would be lasting and irremediable. The balance therefore tilted in favour of preserving the status quo pending trial. 7 .6 In the premises, we are satisfied that the learned Judge applied the correct principles to the facts before him and arrived at the proper conclusion that this was a fit case for the grant of an interlocutory injunction. The two grounds are therefore devoid of merit and fail. 7. 7 In the most frequently quoted case in India of Wander Ltd & Another v Antox India (P) Ltd7 the Supreme Court , held as follows: -J 17- (i) Grant oft emporary injunction is a discretionary order. Appellate courts should not interfere unless the discretion has been exercised arbitrarily, capriciously, perversely or contrary to settled legal principles (ii) An Appellant court will not substitute its own discretion merely because it would have come to a different cone lusion; interference is justified only where the lower courts exercise of discretion is flawed in law, fact or reasoning. 7 .8 As an appellate Court, we will generally be cautious in interfering with an injunction granted by a lower court, as the granting or refusal of an injunction is a matter of judicial discretion. Therefore, an appellate court does not simply replace the lower courts view with its own. The appellant court steps in only if the grant of injunction was clearly flawed in law, fact or reasoning 7. 9 Given the aforestated position, we find no basis on which to interfere with the decision of the court below as the granting of the injunction was in accordance with the settled legal principles. Neither was the exercise of -J 18discretion by the learned Judge flawed 1n law, fact or reasoning. 7. 10 We now turn to consider the fifth ground of appeal. It is immediately apparent that this ground is premised on passages in the Ruling of the learned Judge where he outlined the factual background to the dispute. 7 .11 We have carefully reviewed the Ruling. In our view, this ground is misconceived. As earlier alluded to, at the interlocutory stage, the Court is not required to resolve conflicts of evidence or make findings on contested issues of law or fact. Its role is limited to assessing whether the applicant has raised a serious question to be tried and whether the other elements of the injunction test are satisfied. 7 .12 The learned Judge, 1n outlining the allegations of encroachment, the disputed supersede diagrams and the alleged closure of road reserves, was not making factual findings. He was merely restating the affidavit evidence before him as part of determining whether there was a serious issue to be tried. Nowhere in his Ruling did he -J 19purport to. pronounce himself on the validity or veracity of the diagrams, the legality of the permits, or the existence of encroachment. These remain matters for trial. The learned Judge expressly confined his decision to the principles applicable to interlocutory injunctions. Accordingly, the fifth ground is devoid of merit. 7.13 For the reasons we have given, the appeal lacks merit and ought to be dismissed in its entirety with costs to the 1st COURT OF APPEAL JUDGE P.C.M. NGULUBE A.M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE