Victoria Hospital Limited and three shareholders have submitted before court that the decision to donate the old facility to the Ministry of Health as a screening and isolation centre for COVID – 19 is not an actionable nuisance at law or at all.
Victoria Hospital and other defendants have also urged the Lusaka High Court not to grant the Old Brenthood Drive Neighbourhood Association
an injunction to restrain them from allowing usage of the unit as COVID – 19 screening and isolation facility.
In this case, Old Brenthood Drive Neighbourhood Association chairperson Alick Sakala sued Victoria Hospital and three leaseholders of a property unit, Sumati Naik, Nimesh Naik and Janesh Naik, seeking an order that the four defendants desist from causing any nuisance or breach of the right to quiet enjoyment of
Sakala last week explained in his statement of claim which he filed in court that setting up of the hospital and other infrastructure intended to be used as COVID-19 screening and isolation facility at the property has created grave apprehension from him, leaseholders and residents at the property owing to the deadly and infectious nature of the Coronavirus and has caused distress and anguish.
But the defendants have filed a defence, denying the allegations by Sakala.
The defendants stated that they were in full compliance with the law and the land use, being institutional ( hospital).
They stated that the property was being used in its normal and allowed usage.
The defendants argued that Sakala has not disclosed the cause of action against them as the acts complained of cannot constitute an actionable nuisance at law or at
“The defendants will further aver that the Ministry of Health has taken all reasonable measures to ensure full and proper management of
the property in its use as a hospital. Further and in any case, public
good outweighs the private interests of the plaintiff herein,” they
Meanwhile, Janesh Naik, in his affidavit opposing the application for an order of injunction, has urged that the court not to grant the plaintiff an order of injunction.
He stated that conversion of the hospital has not caused any nuisance as alleged by Sakala because the facility is being used as intended.
The defendants added that they are not in breach of any
terms of the lease agreement in respect of the property known as Stand
6983/CL/24, the hospital.
Janesh stated that the defendants applied for permission to change the use
of the property from general residential to institutional (hospital).
He 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.
Janesh 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 disease 2019) Regulations, Statutory Instrument no.
22 of 2020.
Janesh further stated that he was aware that the Ministry
of Health has put in place reasonable measures to curb any spread of the disease.
“That further and in any case, I verily believe that the disease
cannot be spread in the manner that the plaintiff alleges,” Janesh stated.
He stated that the hospital was never closed as alleged by 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.
News source: Zambia Reports