Judge Chibabuka recuses herself from handling case of 9 Chongwe headmen and ZAF works

LUSAKA High Court judge Ruth Chibabuka has recused herself from handling the matter in which nine Chongwe headmen and Chalimbana River Headwaters Conservation Trust have sued Zambia Air Force Projects Limited and four others for putting up structures on the Lusaka east forest reserve. Moses Lukwanda, senior headman Maoma, senior headman Nkomenshya and eight others sought an order of the court to compel the Zambia Air Force Projects Limited, Kingsland City Investments Limited, Drimtown Investments Limited, Shangrila Investments Limited and Datong Construction Limited to obey protection order of September 22, 2017 and an order declaring that the developments are a threat not only to the Chalimbana river catchment but greater Lusaka Aquifer System.

When the matter came up for hearing on Friday in chambers, justice Chibabuka withdrew from handling the matter due to conflict of interest relating to the land in question.

“I have decided to recuse myself from the matter because I have land near the forest reserve,” justice Chibabuka said.

On April 24, justice Chibabuka granted the plaintiffs an injunction restraining the defendants from continuing with the construction works of the Kingsland City Project in the area, and an order declaring that the developments were a threat not only to the Chalimbana river catchment but the greater Lusaka Aquifer system.

Chieftainess Nkomesha’s headmen stated that the defendants did not comply with the law in relation to the Environmental Impact Assessments before commencement of the developments and no public hearings were held as required by law. They stated that the Zambia Environmental Management Agency had issued a protection order barring the said constructions. The plaintiffs said despite the issuance of the Protection Order, the defendants did not stop constriction works on the sensitive area. However, on April 26, ZAF projects limited and four other companies filed an affidavit in support of ex parte summons to discharge an order of interim injunction. The defendants contended that the plaintiffs’ assertions that the developments were likely to contaminate the acquifer were misleading as it was not supported by any expert report.

The defendants’ counsel Amos Chitembwe stated that Zambia Air Force Projects Limited possessed a certificate of title to the land in issue and the developments that were being undertaken were in accordance with the covenants as indicated on the said certificate. Chitembwe said the traditional leaders and Chalimbana River Headwaters Conservation Trust managed to obtain an order of injunction because they did not make a full and frank disclosure of the material facts surrounding the construction works.

“The construction works by the defendants would not in any way cause irreparable injury to the plaintiffs as the works were being carried out in conformity with the set conditions by ZEMA. We urge the court to exercise its discretion and discharge the interim injunction granted to the defendants,” Chitembwe said.

Meanwhile, the parties entered a consent order to withdraw contempt proceedings that were commenced against ZAF Projects Limited and four other companies on May 13. According to the consent order dated June 3, the parties have resolved that the plaintiffs shall withdraw the contempt proceedings against the defendants. The parties have agreed that at hearing of the inter parte injunction, the defendants would avail the deponent an affidavit in opposition to the affidavit in support of inter-parte summons for an injunction and Colonel Edgar Lungu would be cross-examined by the plaintiffs on his deposition.

The parties further agreed that at the hearing of the injunction and at the request of the plaintiffs, the defendants would avail the plaintiffs relevant documents relating to the incorporation of Zambia Air Force Projects Limited.

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