THE Lusaka High Court has stopped a Lusaka family and Victoria Hospital Limited from donating their property which is in a residential area to the Ministry of Health as a screening and isolation facility for COVID-19.
Justice Gertrude Chawatama has granted the Old Brenthood Drive Neighbourhood Association an injunction prohibiting the defendants from donating their property to the Ministry of Health.
She said the matter was a proper case for the granting of an interim injunction to the complainant as she was satisfied that there was a serious question to be tried during hearing of the matter and that she found it necessary to protect the Association and other residents from injury by violation of their rights which could not be adequately compensated in damages.
In this matter, the Old Brentwood Drive Neighborhood Association sued Sumati Naik, Nimesh Naik and Janesh Naik and Victoria Hospital limited for donating their property which is in a residential area to government as a screening and isolation facility for the deadly Corona virus.
Alick Sakala, who has sued in his capacity as chairman of the Old Brentwood Drive Neighborhood Association, sought an order of injunction restraining the defendants, their servants or agents from allowing the usage of the premises stand no. 6983 as a COVID-19 screening and isolation facility or as a hospital or for similar or ancillary purposes.
He also wants an order that the defendants desist from causing any nuisance or breach of the right to quiet enjoyment of the Association.
He said the purported donation of the property to the Ministry of Health had inconvenienced the Association and residents at the property as they have suffered grave nuisance.
Sakala said the setting up of tents and other infrastructure intended to be used as a COVID-19 screening and isolation facility at the subject property had created grave apprehension to the Old Brentwood Drive Neighborhood Association and other residents and leaseholders owing to the deadly and infectious nature of the COVID-19.
But in an affidavit in opposition to affidavit in support of summons for an injunction sworn by Janesh Naik the defendants denied being in breach of any terms of the lease agreement in respect of the property known as Stand 6983/CL/24.
Naik said that himself and his co-defendants have not caused any nuisance as alleged by the Old Brenthood Drive Neighbourhood Association Chairperson, Sakala, as the property was being used as intended, being a hospital.
He explained that himself and others applied for permission to change the use of the property from general residential to institutional (hospital) and the application was approved by the Minister of Local Government and Housing and communicated to the defendants by the director of planning of the Lusaka City Council on September 7, 2009.
Naik stated that the acts complained of were being undertaken by the Ministry of Health who have taken over the property in line with the statutory powers contained in the Public Health (Infected Areas) (Coronavirus virus disease 2019) Regulations, Statutory Instrument no.22 of 2020.
“The defendants should not therefore have been sued by the plaintiff as the acts complained of as against them cannot even constitute an actionable nuisance at law,” Naik stated.
He stated that there could be no nuisance where the property was being used for its intended purpose and was aware that the ministry of health has put in place reasonable measures to curb any disease spread.
However, judge Chawatama ruled that “bearing in mind that the granting of an injunction was a remedy that was both temporary and discretionary, as well as the fact that it was not part of any findings at this stage of the litigation to resolve conflicts of evidence on affidavit, and having considered all the relevant evidence at the time the injunction was sought, I have come to a conclusion that the claim is not frivolous or vexatious and has some prospects of succeeding.”
“I am mindful that the prospects of the plaintiff’s success has been investigated to a limited extent,” said judge Chawatama.
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