Total Energies Marketing Zambia Ltd v Sheila Kalubi (Sued in her Capacity as Ministry of President for the Trinity Family Centre) and Ors (2024/HPC/0093) (15 March 2024) – ZambiaLII

IN THE HIGH COURT F 2024/HPC/0093 .~,1v~t1.0, AT THE PRINCIPAL R COMMERCIAL DIVISI -.{I,~ HOLDEN AT LUSAKA / ./ ·-'c~,q_~_ ,_. (Commercial Jurisdiction ,. .. 4,o.,f> lo;, lfc✓• "ft . 'le BETWEEN: ~ ' · TOTAL ENERGIES MARKETING ZAMBIA LTD PLAINTIFF AND SHEILA KALUBI (Sued in her Capacity as 1 ST DEFENDANT Ministry President for the Trinity Family Centre LACTALIS ZAMBIA LIMITED 2ND DEFENDANT ALMACS INVESTMENTS LIMITED 3RD DEFENDANT Before Hon. Mr. Justice Bonaventure C. Mbewe in Chambers on the 15th March, 2024. Marshal Esther Nguni Research Advocate : Annette Muma Chota jor the Plaintiff Mr. M Ndalameta of Messrs. May & Co For the 1st Defendant: Ms. T Bula/ca & Mr. Jilcapila of Messrs. TMB Advocates For the 2nd Defendant: Mr. B Milunga of Messrs. Mulenga Mundashi Legal Practitioners Rl RULING ON INJUNCTION Pursuant to Order 27 rule 1 of the High Court Rules as read together with Order 29 rule 1 of the Rules of the Supreme Court Cases Reffered To: 1. Hillary Bernard Mulcosa v Michael Ronaldson (1993-1994) ZR 26; 2. American Cyanamid v Ethicon Limited (175) AC 174, 396; 3. John Musuyaya Ngalula v Habib Industries Limited (2010) 2 ZR 162; 4. Shell & BP (Zambia) Limited v Conidaris and Others (1975) ZR 175; 5. Gateway Service Station Limited v Engen Petroleum Zambia Limited Appeal No. 12 of 2003 (Unreported); 6. Horton Ndovi v National Educational Company Zambia Limited (1980) ZR 184; 7. Turnkey Properties Limited v Lusa/ca West Development Company Limited, B. S.K Chiti (Sued as Receiver) and Zambia State Insurance Corporation Limited (1984) ZR 85; 8. Shamwana v Mwanawasa (1993- 1994) ZR 149; 9. Ahmed Abad v Turning and Metals Limited (1987) ZR 86; 10. Bernard Katuli/ca v Daines Kalunga SCZ/ 73/2 014; 11. Ubuchinga Investments Limited v Telclemichael Menstab & Semhor Transport & Mechanical Limited SCZ Selected Judgment No. 25 of2014; R2 12. Mobil (Zambia) Limited v Msislca (1983) ZR 86; 13. Zambia State Insurance Corporation Limited v Dennis Mulilcelela (SCZ Judgment No. 9 of 1990); 14. Communication Authority v Vodacom Zambia Limited SCZ No. 21 of2009; Legislation and Other Authorities 1. The High Court Rules, Chapter 27 oft he Laws ofZ ambia 2. The Rules of the Supreme Court of England, 1965, 1999 Edition, Vol. 1; 3. The Money Lenders Act, Chapter 398 of the Laws ofZ ambia; 4. Halsbury's Laws ofE ngland, 3rd Edition, Volume 1, Butterworths; 5. Halsbury's Laws of England, 4th Edition, Volume 24, Butterworths; 6. The Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia. Introduction and Background [1] This Ruling is delivered on an application by the Plaintiff T_otal Energies Marketing Zambia Limited herein, who seeks an order of interlocutory injunction to restrain the 1st Defendant, Sheila Kalubi (sued in her capacity as Ministry President of Trinity Family Centre), by itself or by its membership congregation, servants or agents or otherwise howsoever, from entering on to or crossing Subdivision A of Plot No. 268, Mazabuka or carrying on any activities thereon. R3 [2] In the main action, the Plaintiff filed a Writ of Summons accompanied by a Statement of Claim and other documents on 6th February, 2024, as amended 27th March, 2024, wherein the Plaintiff asks the Court for the following relief as against the 1st Defendant; z. An order for possession of the portion of land on Subdivision A of Plot No. 268 Mazabulca, which I =is occupied by the 1st Defendant; A declaration that the 1st Defendant has no right to enter ll. upon Subdivision A of Plot No. 268, Mazabulca and conduct operations thereon; m. An order of interlocutory injunction to restrain the 1st Defendant, Sheila Kalubi (sued in her capacity as Ministry President of Trinity Family Centre) by itselfo r by its membership congregation, servants or agents or otherwise howsoever, from entering on to or crossing Subdivision A of Plot No. 268, Mazabulca or carrying on any activities thereon w. Damages for trespass to the Plaintiffs land andfacilities; v. A mandatory injunction requiring the 1st defendant to raze the illegal structures to the ground and remove it from Subdivision A ofP lot No. 268, Mazabulca; vz. Further and other reliefs; vn. Interest on all sums found due and owing from the date when the cause of action arose to the date ofj udgment, pursuant to section 4 of the Law reform Miscellaneous Provisions Act, Chapter 74 of the Laws of Zambia and R4 thereafter in accordance with section 2 of the Judgment Act, Chapter 81 oft he Laws ofZ ambia; v111. Costs of and incidental to this action. [3) The Plaintiff seeks the following relief as against the 2nd Defendant in the main action; Damages for negligence and interference with the 1. Plaintiffs operations on Subdivision · A of Plot 268 Mazabulca; u. An order that the 2nd Defendant is vicariously liable for the actions of the 1st and 3rd Defendant and all damages flowing therefrom; m. Costs of and incidental to this action. [4) The Plaintiff also filed this application ex parte, for an order of interim injunction by way of summons supported by affidavit and skeleton arguments, on 6th February, 2024. I granted it an Order of Interim Injunction on 7th February, 2024. [5) The 1st Defendant filed an ex parte application to discharge the order of interim injunction on 29th February, 2024, supported by affidavit and skeleton arguments. The 1st Defendant filed a Memorandum of Appearance and Defence as well as other supporting documents on 11th March, 2023. The Defendant also filed an affidavit in opposition and skeleton arguments to the summons for injunction on 14th March, 2024. RS Plaintiffs' Arguments and Submissions for the Injunction [6] The Plaintiffs ex parte application for an Order of interim injunction, is made by summons, pursuant to Order 27, Rules 1 and Order 4 of the High Court Rules, Chapter 27 of the Laws of Zambia. The application is supported by an affidavit and skeleton arguments. [7] The ex parte summons, seeks an order of interlocutory injunction to restrain the 1st Defendant, Sheila Kalubi (sued in her capacity as Ministry President of Trinity Family Centre) by itself or by its membership congregation, servants or agents or otherwise howsoever, from entering on to or crossing Subdivision A of Plot No. 268, Mazabuka or carrying on any activities. [8] The affidavit in support of the application, is deposed to by one Adriane Caroline Munjoma, Retail Operations Manager in the Plaintiff Company. The affidavit deposes that the Plaintiff is the registered proprietor of the property Subdivision A of Plot 268A, Mazabuka on Certificate of title No. L643A on which it runs a filling station. (9] The affidavit deposes that the Plaintiff engaged a surveyor to prepare a layout plan for Mazabuka Service Station at which point it discovered that the 1st Defendant had erected an incomplete structure used as a church thus, trespassing on its property. That it engaged the 1st Defendant explaining how it acquired the property from the 2nd Defendant. That the 1st Defendant maintains that it legally acquired the property R6 from Almacs Investments Limited who purchased it from the Defendant. 2nd [ 1 O] The affidavit deposes that the 1st Defendant has failed to produce a certificate of title for the property and continues to trespass on its property, which is causing it harm as it cannot implement optimum use of its property. That it is threatened with serious risk to its licence, as well as risk posed to the health and safety of the 1st Defendants' society members. That the 1st Defendant will continue to incorporate further structures. [11] The Plaintiff's skeleton arguments posit that the application is brought under Order 27, Rules 1 and Order 4 of the High Court Rules, Chapter 27 of the Laws of Zambia and Halsbury's Laws of England, 4th Edition Volume 24 at page 954 which states when an interlocutory injunction will be granted. [12] The Plaintiff submits that an injunction is required to restrain the 1 Defendant who is likely to add structures to the sl property and the trespass will cause irreparable injury. That the Plaintiff has raised a serious question to be determined at trial as held in Hillary Bernard Mukosa v Michael Ronaldson ( 1), by the Supreme Court that; "An injunction would only be granted to a plaintiff who established that he had a good and arguable claim to the right which he sought to protect." R7 [13) The Plaintiff cites the case of American Cyanamid v Ethicon Limited (2) AC 174 at 396, which provides the governing principles for the grant of an injunction. That the affidavit in support does disclose a serious question as the 1st Defendant has erected a church structure and does not have title. [14] That the 1st Defendant has trespassed as stated 1n Halsbury's Laws of England, 4th Edition Volume 24 at paragraph 981, that; "An injunction to prevent any threatened or apprehended trespass may be granted either before, at or after the hearing if the court thin/cs fit, whether the person against whom the injunction is sought or is not in possession under any claim of title or otherwise, or if out of possession, does or does not claim the right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both or either of the parties are legal or equitable. ...... where damages are not an adequate remedy, an injunction may be granted even if the trespass causes little or no injury to the Plaintiff, although its operation may be suspended for a limited period if hardship would otherwise be caused to the defendant. Where the defendant claims a right to enter upon the land in question, the court, in addition to or in substitution for damages or an injunction, may make a declaration concerning the claim." [ 15] The Plaintiff posits that no injury need be shown in a case of R8 trespass such as this case as trespass is actionable per se. That the Plaintiff is economically impacted as it is unable to fully use its service station. That it has demonstrated that it has title to the land. [16] The Plaintiff argues that another consideration, is whether the applicant will be adequately compensated by an award of damages relying on the case of American Cyanamid v Ethicon Limited (2) AC 174, 396 at 408; "As to that, the governing principle is that the court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss, he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage. If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in R9 establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff's undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason this ground to refuse an interlocutory injunction." [ 1 7] It is also argued that the Court in the case of John Musuyaya Ngalula v Habib Industries Limited (3), held that; "It is generally accepted that an award of damages in disputes relating to land, tend to be inadequate or inappropriate. Monetary compensation for the loss of land does not do perfect and complete justice." The Plaintiff submits that damage swill not be adequate remedy should the 1st Defendant continue its imminent improvements to its church structure when it, as Plaintiff, is limited in using the property for its intended commercial activities. [ 18] That the case of Shell & BP (Zambia) Limited v Conidaris and Others (4), defined irreparable injury as injury which is substantial and can never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired. RlO The Plaintiff calls upon Lord Diplock's statement in the American Cyanamid case (2), that the matter does not end at damages as a remedy, because at that point a pertinent question to be considered is whether the Defendants will be able to pay damages. [ 19] The Plaintiff also argues that there is need to consider whether damages can be quantified citing the case of Gateway Service Station Limited v Engen Petroleum Zambia Limited (5), a case, in which the High Court had discharged an injunction on the basis that no irreparable harm would befall the plaintiff. That an appeal to the Supreme Court was argued on the basis that damages were not an adequate remedy if they are difficult to assess. That the Supreme Court accepted that the damages for disruption of business and injury to business reputation are difficult to assess and the appellant would thereby suffer irreparable harm. The Plaintiff argues that this reasoning applies to the case in casu. [20] The Plaintiff argues on the requirement for the Court to consider where the balance of convenience lies in preserving the status quo lies, quoting the case of Shell & BP (Zambia) Limited v Conidaris and Others (4), wherein the Court held at pages 182 - 183 that; "Finally, on this point the following passage appears in paragraph 766 of the same volume of Halsbury: Rll "Where any doubt exists as to the plaintiffs right, or if his right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the infury which the defendant, on the one hand, would suffer if the in/unction was granted and he should ultimately turn out to be right, and that which the plaintiff, on the other hand, might sustain if the iniunction was re fused and she should turn out to be n.g h t. .. " [21] That the American Cyanamid v Ethicon case (21), explained that if the balance of convenience appears to be evenly balanced, considerations that tip the scale must be brought to the fore. The Plaintiff goes on to list reasons why it believes that it will suffer greater inconvenience of the injunction is refused, namely; The Plaintiff's suffering loss economic loss by the service 1. station not being accessible by the newly tarred road; that it will suffer revenue loss by not being able to undertake its construction works; and will suffer loss of business opportunity and loss of trading due to the trespass. R12 The matters stated in its affidavit in support cannot be 11. atoned for in damages as it will suffer irreparable damage if more structures are built. 111. The 1st Defendant is not in a position to pay any damages. 1v. The 1st Defendant does not have title [22] The Plaintiff quotes Chirwa J, in Harton Ndovi v National Educational Company Zambia Limited (6), as stating that; "The object of an interlocutory injunction is to maintain status quo. The object of which is to keep things in status quo, so that, if at the hearing the plaintiffs obtain a judgment in their favour, the defendant will have been prevented from dealing in the meantime with the property in such a way as to make that judgment ineffectual." [23] The Plaintiff submits that this is a proper case for the Court to grant the interlocutory injunction. Defendant's Arguments and Submissions in Opposition [24] I gave the 1st Defendant's ex parte application to discharge the order of interim injunction filed on 29th February, 2024, the same date of hearing as the main injunction application as I found the issues and arguments raised therein appropriate for consideration as an opposition to the Plaintiff's injunction together with the documents filed in opposition. R13 [25] The Defendant's affidavit in opposition to the Plaintiff's application, is deposed to by one Henry Kalubi, who is one of the Church Leaders of the Ministry of Trinity Family Centre, the 1st Defendant. The affidavit deposes that the 1st Defendant has been conducting its religious gatherings and community projects on the land adjacent to the Plaintiff's service station for 1 7 years, which piece of land is known as Subdivision B of Stand 268 Mazabuka (the "disputed property). That the 1st Defendant has applied for a boundary verification report by exhibit "HK1". [26] The Defendant's affidavit deposes that the Plaintiff has never produced a boundary verification report from the Surveyor General in respect of its property and the disputed property. The Defendant denies that it is trespassing on the Plaintiff's property as it is the equitable and beneficial owner of Subdivision B of Plot 268 Mazabuka, on which it constructed a church building many years ago and has been meeting thereon. That it purchased the said property from Almacs Investments Limited, the 3rd Defendant on 21st November, 2008. The said 3rd Defendant purchased the property from the 2nd Defendant. The 1st Defendant exhibits various documents, being; an acceptance of offer, consent to assign and a copy of the tax clearance certificate. [27] The 1st Defendant claims that it is a bona fide purchaser for value without notice of any fraud or procedural impropriety in the creation of the disputed property. That it ascertained R14 the interests, rights and claims in respect of the disputed property at the date of purchase. [28) The affidavit deposes that the Defendant has sought to settle the dispute with the Plaintiff amicably to no avail. [29] That the Defendant is waiting for the conveyance from the 2nd Defendant to Almacs Investments Limited, the 3rd Defendant so that it can obtain conveyance from the said Almacs Ltd. [30] It is deposed, that the Plaintiff cannot use the injunction to commence construction works over the disputed property, and should not create favourable conditions for itself. That it is unfair for the Plaintiff to injunct the Defendant who uses the disputed property for religious activities and other community engagement without determination of the matter on its merits. [31] The Defendant's affidavit posits that the Ex parte Order granted herein is irregular and an abuse of Court process as it declares the rights of the Plaintiff before the matter is determined on the merit. The said Order seriously prejudices the 1st Defendant and will render any proceedings between the parties nugatory and academic as it has given the Plaintiff that which it seeks to prove in the main matter. That there was non-disclosure by the Plaintiff of the 1st Defendant's activities on the property. [32] The Defendant's skeleton arguments argue, that the Plaintiff has used the Ex parte Order to obtain control of the disputed property. That the injunction declares that the disputed RlS property belongs to the Plaintiff and injuncts the 1st Defendant from trespassing or entering the said property. That the Plaintiff has altered the prevailing situation thereby weakening the 1st Defendant's case who has been declared a trespasser or illegal occupant. [33] The Defendant, goes on to argue that an injunction should not be used to create conditions favourable to one party as the granting of an injunction herein will create new conditions favourable to the Plaintiff. That the status quo should be maintained. [34] The 1st Defendant, cites the case of Turnkey Properties Limited v Lusaka West Development Company Limited, B.S.K Chiti (Sued as Receiver) and Zambia State Insurance Corporation Limited (7), where the Supreme Court held, inter alia; "An interlocutory injunction is appropriate for the preservation or restoration of a particular situation pending trial; but it cannot in our considered view, be regarded as a device by which an applicant can attain or create new conditions, favourable only to himself which tip the balance of the contending interest in such a way that he is able, or more likely, to influence the final outcome by bringing about an alteration in the prevailing situation which may weaken the opponent's case and strengthen hos own." R16 [35] The 1st Defendant argues that it has been in occupation of the disputed property for 17 years so that the status quo to be maintained is that which existed before the forcible entry. That the ex parte order must be looked at carefully to prevent an unfair order being made against the 1st Defendant in its absence. The 1st Defendant posits that the Plaintiff has acquiesced for some time and relies on the case of Shamwana v Mwanawasa (8), where the Court held that; "The granting of the ex parte injunction is the exercise of a very extraordinary jurisdiction, and therefore the time at which the plaintiff first had notice of' the act complained of will be looked at very carefully in order to prevent an improper order being made against a party in his absence, and if the plaintiff has acquiesced for some time, it will not be granted." [36] The 1st Defendant cites the case of Ahmed Abad v Turning and Metals Limited (9), where it says the Supreme Court upheld the decision in Turnkey Properties (7), and held that an injunction should not place a party at an advantageous position as against the other party. The 1st Defendant argues that the injunction places the Plaintiff at an advantageous position over it. That the Plaintiff may commence construction and has used the ex parte injunction to expel it from the disputed property. [37) The 1st Defendant argues that it is premature at this stage of the injunction to pronounce the rights of parties which will R17 unfairly prejudice the and cause an injustice to the 1st Defendant. It relies on the case of Bernard Katulika v Daines Kalunga (10), where the Supreme Court restrained all the parties from developing the land at the centre of the dispute and held that, an injunction should not be granted if the effect would be to determine the outcome of the action against future interests of a party who might be successful at trial and the court should not delve into and predetermine issues to be tried in the main cause. That he injunction states that the property belongs to the Plaintiff and expels the 1st Defendant from the disputed property, which is delving and predetermining issues to be tried at trial. [38] The 1st Defendant argues that it is not part of the function of the Court at this stage to resolve conflicts in evidence on affidavits on facts which ultimately require detailed argument and mature considerations as held in the case of Ubuchinga Investments Limited v Teklemichael Menstab & Semhor Transport & Mechanical Limited (11). That the application for injunction cannot be a mini trial of disputed issues. The 1st Defendant prays that the Ex parte Order of Injunction be discharged. Hearing [39] At the hearing, Counsel for both parties relied on the documents filed and augmented briefly with verbal submissions. R18 Ruling [40] This Court has jurisdiction to hear this application pursuant to Order 27, Rules 1 and 4 of the High Court Rules, Chapter 27 of the Laws of Zambia. The case of American Cyanamid Company v Ethicon Limited (2), cited by the Plaintiff lays down the requirements that need to be established, for a Court to grant an interlocutory injunction, namely; 1. The Plaintiff must establish that it has a good arguable right which it seeks to protect; The case of Turnkey Properties v Lusaka West Development Company (7) also speaks to this principle. 11. The Court must be satisfied that the Plaintiffs has shown that there is a serious question to be tried; The case of and Shell & BP v Conidaris (4) and Ndovi v National Educational Company (6), speaks to this principle; 111. Damages would not be an adequate remedy for a party injured by the Court's grant of, or its failure to grant an injunction. Turnkey Properties v Lusaka West Development Company (7) and Mobil (Zambia) Limited v Msiska ( 12) are all cases that support the above principle. 1v. A court will not grant an interlocutory injunction unless the court is satisfied on the facts before it, that the Plaintiff has real prospects of succeeding at trial in the relief sought as held by the Supreme Court in R19 the case of Zambia State Insurance Corporation v Mulikelela ( 13). v. If a Plaintiff satisfies the (above) tests, the grant or refusal of an injunction is a matter for the exercise of the Court's discretion on a balance of convenience. The Supreme Court pronounced on the balance of convenience in the American Cyanamid v Ethicon Limited (2) case. (41] The principles in the American Cyanamide case (2), were affirmed by the Zambian Supreme Court in the case of Shell and BP Zambia Limited v Conidaris and Others (4). The Court held, inter alia, as follows in that case; " ....A Court will grant an injunction only if the right to relief is clear and the injunction is necessary to protect the Plaintiff from irreparable injury; Irreparable injury means injury which is substantial and can never be adequately remedied or atoned for by damages; not injury which can possibly be repai. re d .... " (42] In the case of Communication Authority v Vodacom Zambia Limited ( 14), the Court held that; 1. In an application for injunction, there are two main issues to be considered. These are irreparable injury, and the right to relief. Irreparable injury is the first and primary element. Irreparable injury means injury which is substantial and can never be adequately remedied or atoned for by damages. R20 2. An injunction will not be granted where damages would be an alternative adequate remedy to the injury complained of, or if the applicant succeeds in the main action. 3. It is for the party seeking an injunction to establish clearly that he is entitled to the right which he seeks to protect by an injunction. The modern tendency is only to grant an interlocutory injunction where the right to relief is clear. [43] The Plaintiff has given reasons why it believes that it has met all the requirements for the grant of an injunction to it in this matter. It has also submitted on the law on disputes relating to land by citing the case of John Musuyaya Ngalula v Habib Industries Limited (3). [44] The 1st Defendant on the other hand appears to have argued only one ground against the grant of an interlocutory injunction, which simply put, is that the Plaintiff has used the Ex parte Order to obtain control of the disputed property by injuncting the 1st Defendant from trespassing or entering the said property and that the Plaintiff has altered the prevailing situation thereby weakening the 1st Defendant's case who has been declared a trespasser or illegal occupant. The 1st Defendant, goes on to argue that an injunction should not be used to create conditions favourable to one party and the Order granted herein grants the Plaintiff the relief sought in the main action. Various authorities are cited in support. R21 [45] The 1st Defendant has unfortunately not bothered to argue on the actual requirements for the grant of an interlocutory injunction to show the Court why it should vacate the Order of Interim Injunction it granted ex parte. The issues that the 1st Defendant expended so much energy arguing is in my view, warnings or caution to the Court not to make decisions or statements that may prejudice the final outcome of the matter. The 1st Defendant also argued spiritedly on the need to maintain the status quo. The current status quo is that I have restrained the 1st Defendant by injunction, pending hearing from it why I should not grant the Plaintiff an interlocutory injunction pending determination of the main action. [46] The case of Harton Ndovi v National Educational Company Zambia Limited (6), assists to show that a Plaintiff does have to make a good case for him to get an ex-parte interim inunction, when it says; " ...b efore granting an injunction it must be shown that there is a serious dispute between the parties and the Plaintiff must show on the material before the Court that he has any real prospects of succeeding at the trial." I wish to assure the 1st Defendant, that I have not made any determination on the merits of the case at this point. I am not Counsel for either party and have not drafted any documents for either party. R22 The Plaintiff has made assertions and provided documentation to show that it has a right to protect and justify it's right to an ex-parte interim injunction which I duly granted as I would to any party in similar circumstances. The purpose of the inter-partes hearing is to hear the Defendant's side of the application before I determine the injunction application only at this stage of proceedings. It is therefore incumbent on the Defendant like any other defendant, to argue its case fully and diligently based on the law and facts. [4 7] The Plaintiff herein has argued that it holds a certificate of title over the property which the 1st Defendant occupies the disputed part thereof. That it is under apprehension that the 1st Defendant if not restrained by injunction, may continue developments or build structures in addition to the church on the property known as Subdivision A of Plot 268 Mazabuka, and that it has suffered irreparable damages by the 1st Defendant's trespass to the said property. It also posits that the 1st Defendant may not have the capacity to be able to compensate it in damages in an event that it is successful in its claim or that the damages may be difficult to quantify. It has cited authorities to back its position. [48] Upon a close consideration of all matters surrounding the application and the law on injunctions and authorities cited, I am satisfied that the Plaintiff has demonstrated sufficiently to me that it does have a clear right to the relief it seeks in the main action. The Plaintiff to me does have a clear right to an injunction to protect it from the trespass to Subdivision A R23 of Plot 268 Mazabuka. The question I am not satisfied with, is the assertion that it will suffer irreparable injury which is substantial and can never be adequately remedied or atoned for by damages. The 1st Defendant is a church and that to me that does not mean that it does not by that mere fact have the means to compensate the Plaintiff in the event that it succeeds in the main action. No evidence has been laid before me of the 1st Defendant's financial status or lack of means. I do not agree with the Plaintiff on this point. In view of the nature of its business, I do agree that damages may be difficult to quantify. [49] As I go further in considering the requirements that need to be satisfied for the grant of an injunction, I have considered where the balance of convenience lies. I am alive to the fact that the 1st Defendant admits that it still does not have a certificate of title to the property despite having bought the same in 2008 and operating from there for 17 years. It has at best an equitable interest in the property as admitted. The Plaintiff on the other hand has a certificate of title which under the Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia accords it a superior, stronger or better interest in the disputed property. It does lament its failure to exploit its commercial interests fully in the property which it posits is causing it loss. I believe that all this is quantifiable in damages. [50] The 1st Defendant has built a church building which it uses for its activities entailing ingress and egress to that structure. R24 This forms part of the trespass the Plaintiff is complaining of and I take due note that the 1st Defendant has been using this building for a considerable amount of time. The Order of Interim Injunction stops all activities whatsoever and it has not been shown that the current use is actively interfering with or disturbing or endangering the Plaintiff's use of its service station in its current form apart from fears of the 1st Defendant constructing more structures. It is argued that the current structure is in the way of the redevelopment that the Plaintiff wishes to undertake on the property. With the injunction in place as at now, neither party can construct anything on the disputed property. That is the status quo and I believe that it is in the interest of justice that the 1st Defendant be allowed access to the church building for conducting its prayer services pending determination of the substantive action. [51] I am therefore of the firm position that the Plaintiff has met sufficient number of the tests set out in the authorities cited above including those of Shell and BP and BP Zambia Limited v Conidaris and Others (4), and American Cyanamid Company v Ethicon Limited (2), for me to exercise my discretion to grant the Plaintiff an injunction against the 1st Defendant, but varied as stated in [50] above. [52] I therefore hereby exercise my discretion in favour of the Plaintiff and grant the Plaintiff an interlocutory injunction restraining the 1st Defendant, whether by herself, her leaders in the Ministry of Trinity Family Centre the congregation R25 membership, her agents, her servants or any person or entity otherwise claiming under or through her, be restrained and an injunction is hereby granted restraining them from undertaking any construction or development work on the disputed part of Subdivision A of Plot 268 Mazabuka which the 1st Defendant calls subdivision B of plot 268 Mazabuka or carry on any type of activities that will affect, endanger the Plaintiffs operations, safety and quiet enjoyment of the undisputed part of the above property until determination of the action or until further order of the Court. Neither is the Plaintiff allowed to construct anything new on the property. [53] Costs in the cause. [54] Leave to appeal is hereby granted. Delivered at Lusaka this 23rd-day---of April 2024 11tt::~~~ Bonaventure .C. Mbe. e JUOIHCIARY C.iF ZAMBIA =- 1GH C ) : U ~ RT • )~J? High Court Judge JUDGE .__ I P.O. BOX 50067, LUSAKA R26