Evicted TMS Hospital injunction bid tossed out

THE Lusaka High Court has vacated an injunction granted to TMS Hospital Limited restraining First Capital Bank Zambia Limited from evicting the health institution from its premises in Kabulonga.

Judge Muma in his ruling said that First Capital Zambia Limited being mortgagee in possessions of subdivision no.5 subdivision no.45 of farm no. 377a, Kabulonga , Lusaka has the rights to do with the property as they please.

He said the bank have vacant possession of the property for prospective purchasers.

Mr Justice Muma alsosaid TMS Hospital's status quo cannot be maintained because they have no legal right on the premises .

He said he could not grant TMS Hospital's application that they stay on the premises until final determination of the matter or until the bank makes a sale of property.

"The defendant had given the plaintiff (TMS Hospital ) ample notice and time to get their affairs in order and locate an alternative property for the hospital. The plaintiff from moving from the premises risks no irreparable injuries as the defendant is not indebted to the plaintiff in any manner or form," said Justice Muma

" In the present case the evidence adduced by the defendant is strong and credible and has weakened the plaintiff's case. In light of this and the reasons aforestated , I here and now vacate the injunction granted on 3rd September, 2020 and make an order for costs to the defendant, " he said.

TMS Hospital commenced an action in the Lusaka High Court seeking a declaration that it was a business tenant renting the said property and an order of specific performance against the defendant (First Capital Zambia Bank).

It was also seeking an order of interim injunction restraining the bank and or persons acting under its instructions from entering and removing the plaintiff from the property .

TMS Hospital wanted a permanent injunction restraining the bank from ever interfering with the plaintiff's quiet enjoyment to the said property as a business until or unless terminated in accordance with statutory provisions, damages for inconvenience and costs and any other relief the court may deem just and suitable to grant.

In an affidavit in support of summons on September 1, 2020, the bank served their advocates a letter demanding that they hand over the property by close of business the next day.