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Victoria Hospital wants association’s injunction rejected

VICTORIAL Hospital Limited has urged the Lusaka High Court to reject an injunction sought by the Old Brenthood Drive Neighbourhood Association meant to restrain it from allowing usage of the hospital as a Covid -19 screening and isolation facility.
Victoria Hospital and four others submitted that they have not caused any nuisance as alleged by the Old Brenthood Drive Neighbourhood Association Chairperson, Alick Sakala as the property was being used as intended, it being a hospital.
This is in a matter where Alick Sakala, the chairperson of the Old Brethood Neighborhood Association has sued Victoria hospital and three leaseholders of a property unit namely for donating the hospital to the government for use as a COVID-19 screening center.
Those jointly sued with the hospital are Sumati Naik, Nimesh Naik and Jamesh Naik.
Mr Sakala claimed that the setting up of tents and other infrastructure intended to be used as a COVID-19 screening and Isolation facility at the property had created grave apprehension to him, other residents and leaseholders owing to the deadly and infectious nature of the virus.
He is seeking an order that the four defendants desist from causing any nuisance or breach of the right to quite enjoyment of the residential area.
But in an affidavit in opposition to affidavit in support of summons for an injunction filed in the Lusaka High Court Mr Naik said the defendants were not in breach of any terms of the lease agreement in respect of the property known as Stand 6983/CL/24.
He stated that the defendants applied for permission to change the use of the property from general residential to institutional (hospital).
Mr Naik stated that 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.
He stated that the acts complained of were being undertaken by the
Ministry of Health who had 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 defendants cannot even constitute an actionable nuisance at law,” Mr Naik argued.
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 had put in place reasonable measures to curb any disease spread.
“That further and in any case, I verily believe that the disease cannot be spread in the manner that the plaintiff alleges,” Mr Naik stated.
He stated that the hospital was never closed as alleged by Mr Sakala and explained that the only reason that the hospital stopped operating was because it acquired a bigger facility in Kalundu which still operates to date.
Mr Naik further stated that public good outweighs the private interests of Mr Sakala.
He however urged the court not to entertain the application for injunction as it does not disclose a cause of action.

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