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High Court vacates ZAF Kingsland injunction

THE Lusaka High Court has vacated the interim injunction granted to nine Chongwe headmen and a company restraining Zambia Air Force Projects Limited and four others from continuing construction works or further developments on the Lusaka east forest area.

High Court judge Mwila Chitabo in his ruling dated July 29 vacated the interim injunction dated May 16, 2019 as the case was not fit and proper to confirm the injunction.

This is in a matter where 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, who is senior headman Maoma, senior headman Nkomenshya and eight others are seeking an order that the five defendants; Zambia Air Force Projects Limited, Kingsland City Investments Limited, Dream Town Investments Limited, Shangrila Investments Limited and Datong Construction Limited – should obey protection order of September 22, 2017 and an order declaring that the developments were a threat not only to the Chalimbana river catchment but greater Lusaka Aquifer System.

The plaintiffs sought a declaration that the Busoli people and the general public had a right to access clean and uncontaminated water for their consumption, which was threatened by the impugned development by the defendants.

The plaintiffs were seeking a declaration to prevent the defendants from continuing construction works in the environmentally sensitive area.

According to their statement of claim, senior headman Maoma and others stated that the first to ninth plaintiffs were members of the Busoli Royal Establishment’s chiefdom lands committee and headmen and head women in various villages of the Soli people who rely on the Chalimbana river.

The complainants stated that as a result of the construction going on in the area, there had been water contamination from effluent discharge at the ZAF Twin Palm Housing Project, which was next to Kingsland Project and destruction of the forest which was likely to affect other rivers and impact members of the public. They further sought an order of injunction to restrain the project and any other reliefs the court might deem fit.

High Court judge Ruth Chibabuka ordered and directed that the defendants, whether by themselves or by their servants, agents or otherwise were restrained from carrying out any further building and construction works or any other restricted actions.

During submissions to confirm the interim injunction, the complainant’s lawyer, Mutembo Nchito, had submitted that the Busoli people and the public had the right to clear and uncontaminated water and the project if carried out threatened that right.

Nchito submitted that an injunction could properly lie against state owned or controlled institutions as companies registered under PACRA were liable to injunctions and so was ZAF projects limited.

However, lawyer representing the defendants, Colonel Nambote, argued that there was no reason to confirm the ex-parte injunction which was earlier granted to the complainants.

He argued that the defendants were agents of the state and an injunction could not lie against the State as the Kingsland City project was being undertaken by the State through ZAF projects limited which was 99 per cent owned by ZAF.

He added that the balance of convenience was in favour of the defendants as the project developments were in public interest and will serve not only the military personnel but also the local community as there was no proof that the project would harm the aquifer system or the environment.

The defendants feared that they would suffer irreparable damage if the injunction was granted as the project commenced three years ago and halting it would be detrimental to the development projects.

Justice Chitabo found that Nchito’s submission that even if the plaintiffs did not tender any evidence to show that the project would adversely affect the environment or contaminate the aquifer had no leg to stand on as it was a destitute of merit.

He also found that the major interest of the complainants was to protect the acquifer from degradation but they have not produced evidence to show that the project would contaminate or adversely affect the environment.

Judge Chitabo said it was not sufficient for the applicants to proclaim that they had a cause of action or that their rights had been threatened.

“The peculiar feature of this case is that the project commenced about three years ago and the plaintiffs only sought court intervention in March 2019,” judge Chitabo said.

“ZAF is an arm of the defense forces which is a strategic institution in securing the security of the sovereign state of the government of the Republic. It is therefore in public interest that adequate facilities are provided to the men and women serving in that strategic institution.”

The court further disagreed that the plaintiffs’ entire action was frivolous and vexatious as suggested by Colonel Nambote because the merits and demerits of the case could only be determined at trial.

“Having considered the guidelines whether to confirm or vacate the interim order earlier granted by this court, as there is only one High Court, I have no hesitation in forming a firm opinion that this is not a fit and proper case to confirm the interim injunction order granted on May 16, 2019. It is accordingly vacated,” he said. “The interlocutory application raised important environmental issues which are matters of constitutional and tremendous public interest. The justice of this case is that I make no order as to costs. Put differently, each party is to bear own costs,” ordered judge Chitabo and granted the complainants leave to appeal to the superior Court of Appeal.

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