Elias Tembo v Victor Zimba and Ors (CAZ/08/218/2024) (9 December 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/218/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ·~, ,.,,,. ('. . { uHTOf A ,. r~- - ---, ELIAS TEMBO .i_!! APPELLANT DEC 2025 AND Cl' VICTOR ZIMBA 1 RESPONDENT ST LUSAKA CITY COUNCIL RESPONDENT 2ND COMMISSIONER OF LANDS 3RD RESPONDENT BEFORE THE HONOURABLE MR. JUSTICE M. M. KONDOLO, SC IN CHAMBERS For the Appellant: Mr. J. Chimankata of Messrs. Cholt Legal Practitioners For the 1st Respondent: Mr. N. Sampa of Messrs Norman Sampa Advocates For the 2nd Respondent: Not in Attendance For the 3rd Respondent: Not in Attendance RULING KONDOLO, SC JA delivered the Ruling of the Court. CASES REFERRED TO: 1. Anti-Corruption Commission v Barnnet Development Corporation Ltd (2008) Vol.1 ZR 69 R2 of 19 2. Sailas Ngowani and Others v Flamingo Farm Limited: Selected Judgment No. 5 of 2019 3. Justine Chansa v Lusaka City Council (2007) Z.R. 256 4. Metalco Industries Limited and 2 Others v Okwudili Tony Anuluoha SCZ/8/264/2013 (Unreported) 5. Carmine and Watson Nkandu Bowa (sued as Administrator of the Estate of Ruth Bowa v Fred Mubiana and Zesco Limited) (2012) Vol. 3 ZR 165 6. Zambia Revenue Authority v the Post Newspaper Limited SCZ Judgment No. 18 of 2016 7. Mundada v Mulwani and Others (1987) Z.R 8. Wesley Mulungushi v Catherine Bwale Mizi Chomba (2004) ZR96 9. Marcus Kampumba Achiume v Attorney General and Others (1983) ZRl (SC) 10. Sonny Paul Mulenga, Vismer Mulenga, Chainama Hotels Limited and Elephants Head Hotel Limited v lnvestrust Bank Limited (1999) ZR 101 11. Elizabeth Chama v Elias Tembo and 2 Others Appeal No. 164 of 2016 SCZ/8/195/2016 12. Ngongolo Farm Limited v Zambia National Commercial Bank Limited, Kent Choice Limited (in Receivership) and Charles Haruperi (2007) Z.R. 149 13. Nkhumbwi Phiri v Sauket Hussein Dalal Appeal No. 83 of 14. Lloyds Bank Limited v Marean (1973) 1 WLR 1387 R3 of 19 15. Cavmont Bank v Lewis Nathan SCZ Judgment No. 6 of 16. Zimba and Another v K.B. Davies and Company Limited and Another Appeal No. 181 of 2010 (unreported), 17. Nkhata and Others v The Attorney-General of Zambia (1996) ZR 124 (SC) 18. Nyampala Safari's Zambia Limited & Others v Zambia Wildlife Authority & Others SCZ / 8 / 1 79 / 2003 19. John Kunda v Keren Motors (Z) Limited SCZ No. 14 of LEGISLATION REFERRED TO: 1. Section 33 of the Lands and Deeds Registry Act, Laws of Zambia 2. The Supreme Court Rules (Whitebook), 1999 Edition 1. INTRODUCTION 1.1 This is the Appellants renewed Application for Stay of Execution of Judgment delivered by Honorable Justice Charles Chanda on 8th May, 2024 pending determination of the Appeal. 2. BACKGROUND 2.2 The parties were involved in a land dispute whereby the 1st Respondent brought an action against the Appellant and the 2nd and 3rd Respondents seeking inter alia, a declaration that he is R4 of 19 the legal and registered owner of Stand No. 24596 Lusaka. The Appellant was the 1st Defendant in the Court below. 2.3 . The 1st Respondent's claim was premised on his assertion that he had duly applied for, was allocated, and subsequently issued with a Certificate of Title No. 42560 in respect of the property in dispute by the 3rd Respondent. He further alleged that he paid the necessary service charges to the 2nd Respondent and that at the time of his allocation the property was vacant. His grievance arose when he discovered that the Appellant had commenced construction on the said property despite no re-entry having been effected against him by the 3rd Respondent, and despite the registry searches confirming that he remained the lawful owner. 2.4 The Appellant filed an amended defence and counterclaim, denying that the 1st Respondent had ownership of the property in question, putting him to strict proof thereof, and asserting that he was in fact the original and bona fide offeree of the property. He alleged that his offer letter of 14th August, 2001 which was issued before any offe r for the said land was made to the 1st Respondent had never been revoked by the 3rd RS of 19 Respondent, rendering any subsequent allocation to the 1st Respondent erroneous, mistaken, or fraudulent. 2.5 He sought cancellation of the 1st Respondents Title and prayed for relief including specific performance of his offer, issuance of Title in his name, a declaration of nullity of the 1st Respondent's documentation, preservation of his developments, damages, mesne profits, and costs. 2.6 The Appellant had also filed a counter claim stating that following acceptance of the offer he paid the required service charges, submitted survey diagrams, obtained approval of his building plans, and constructed a dwelling house valued in excess of KS00,000.00. That his offer letter remained valid as it was never withdrawn and that the issuance of Title to the 1st Respondent was a result of error, mistake, or fraud. 2. 7 That the Plaintiffs Certificate of Title could not retrospectively extinguish his prior legal interest. 2.8 The 2nd Respondent, in its defence, admitted that the 1st Respondent was the registered owner of the property but denied knowledge of the circumstances of his allocation. It emphasized that the Appellants name did not appear in the relevant council R6 of 19 minutes or in the approved list of applicants under which the 1st Respondents name appeared and was duly recommended for allocation. 2. 9 The 3rd Respondent also denied the Appellants assertions and instead admitted the 1st Respondents ownership, confirming that no prior or subsequent offer had been made in favour of any other person, and insisting that any such contrary claims were fraudulent. Both the 2nd and 3rdRespondents accordingly aligned themselves with the 1st Respondents claim, leaving the central controversy between the Appellant and the 1st Respondent as to who held the legitimate and enforceable interest in Stand No. 24596 Lusaka. 3. DECISION OF THE LOWER COURT 3.1 The Court stated that the single central issue before it was whether the 1st Respondent had been regularly offered the property in issue. The trial Judge noted that the dispute narrowed to the competing claims of the 1st Respondent and the Appellant, since both the 2nd and 3rd Respondents supported R7 of 19 the 1st Respondent's position on ownership of the property in dispute. 3 .2 The Court cited Anti-Corruption Commission v Barnnet Development Corporation Ltd (1l and Sailas Ngowani v Flamingo Farm Ltd 121, in which it was noted, respectively that a Certificate of Title is conclusive evidence of ownership, subject only to cancellation under Section 34 where fraud or impropriety is proved; and that serious procedural violations in land allocation could nullify a certificate. 3.3 The lower Court further noted the case of Justine Chansa v Lusaka City Council !31, which clarified the scope of Circular No. 1 of 1985 that the Commissioner of Lands retains the ultimate discretion to allocate, while the Council's role is limited to advertising, rece1v1ng applications, and making recommendations. 3.4 After assessing the evidence the learned trial Judge found that the 1st Respondent had complied with Circular No. 1 of 1985. Further that, the Council duly recommended him to the Commissioner of Lands, who accepted the recommendation and issued an offer letter on 15th August, 2001 followed by a RS of 19 Certificate of Title. The trial Judge was also satisfied that the testimonies of the 2nd and 3rd Respondents' witnesses confirmed this process, and found the 1st Respondent's documentation as consistent and credible. 3.5 The lower Court found no evidence of fraud or impropriety and accepted that the 1st Respondent had been properly allocated the property. 3.6 On the other hand, the Appellant's evidence was found wanting after the Court observed that both the Council and the Commissioner of Lands denied issuing or recognizing the · Appellant's documents. The Court also considered the evidence of DW4 who explained that the serial number on the Appellant's offer letter related to another property. Furthermore, that the Appellant had never pursued Title despite knowing the process, and instead began building without obtaining official planning approval until years later (2005-2006). 3. 7 The trial Court accordingly made the following Orders: I. A declaration that the 1st Respondent is the legal and registered owner of Stand No. 24596 Lusaka. R9 of 19 II. An order directing the Appellant to immediately yield vacant possession of the property, with liberty to the 1st Respondent to apply for ejectment in the event of non compliance. III. An injunction restraining the Appellant, his servants, or agents from trespassing or interfering with the 1st Respondent's quiet possession of the property. W. The Appellant's counterclaim is dismissed in its entirety. V. Costs awarded to the 1st Respondent, the 2 nd Respondent, and the 3rd Respondent, to be agreed or taxed in default. VI. Leave granted to the ]st Appellant to appeal to the Court of Appeal 4. APPLICATION FOR STAY OF EXECUTION 4.1 Dissatisfied with the decision of the lower Court, the Appellant filed a Notice of Appeal and a Memorandum of Appeal and applied to the lower Court to stay execution of the Judgment but the application was refused hence this renewed application. 4.2 The renewed application was supported by an Affidavit and Skeleton Arguments, sworn by Elias Tembo the Appellant in Rl0 of 19 which he accused the trial Judge of not properly evaluate the evidence presented to the Court. 4.3 It was submitted that the grounds of Appeal are cogent, stand the highest prospects of success on appeal and the Appellant stands to be ruined if this Court refuses the grant of a Stay and if the 1st Respondent proceeds to execute, the Appellant could suffer injury that could not be atoned by an award of damages. 4.4 The gist of the Appellants arguments relied on the case of Metalco Industries Limited and 2 Others v Okwudili Tony Anuluoha14 where Hon. Madam Justice H. Chibomba (as she then was) in delivering the Ruling of the Supreme Court said: "It is settled principle of law that in order for the Court to grant a stay of execution, an applicant must satisfy the Court that there are good and convincing reasons for doing so and that the Appeal has prospects of succeeding.'' 4.5 The Appellant pointed to the two-fold test for granting orders to stay execution set out in the case of Carmine and Watson Nkandu Bowa (sued as Administrator of the Estate of Ruth Bowa v Fred Mubiana and Zesco Limited 151 in which the Court said, that the considerations in an application for stay of Rll of 19 execution pending appeal are the prospect of the Appeal succeeding and the irreparable damage the applicant may suffer if the application is not granted. He submitted that the test was reaffirmed in the case of Zambia Revenue Authority v the Post Newspaper Limited 161. 4.6 The Appellant stressed that the subject matter of this dispute was land and he refe rred to the case of Mundada v Mulwani and Others l 7 l in which it was held that in contracts for the sale of land, damages are not an adequate remedy because land is considered unique. That this view was re-affirmed in Wesley Mulungushi v Catherine Bwale Mizi Chomba (SI. 4.7 That according to the case of where an applicant applies for land under Government Circular No. 1 of 1985 directly to the Commissioner of Lands, they ought to submit a written application. That simply providing one's name as the Respondent did was contrary to mandatory requirement set out in the cited case and amounted to impropriety. That according to the case of Sailas Ngowani and Others v Flamingo Farm R12 of 19 Limited supra circumvention of procedure could render the allocation of land null and void. 4.8 On the prospects of success, we were asked to consider the holding in the case of Justine Chansa v Lusaka City Council supra that applications for land under Government Circular No. 1 of 1985 ought to be in writing. 4.9 Further, that there was an unbalanced evaluation of the evidence as the trial Judge doubted the authenticity of Appellant's uncontroverted documents when they were not objected to at discovery and inspection. That this offended the principle on the requirement for a balanced evaluation of the evidence set out in the case of Marcus Kampumba Achiume Vs Attorney General and Others 191. 5. 1 RESPONDENTS CASE sT 5.1 The 1st Respondent, opposed the Application arguing at the outset that the Appellant's appeal merely attacks factual findings of the lower Court without demonstrating any error of law. R13 of 19 .5.2 He submitted that the Appellant had failed to show good and convincing reasons to warrant the grant of stay of execution and thus failed to meet the standard set out in the cases of Sonny Paul Mulenga, Vismer Mulenga, Chainama Hotels Limited and Elephants Head Hotel Limited v Investrust Bank Limited (1999) ZR 101 1io1 and Metalco Industries Limited and 2 Others v Okwudili Tony Anuluoha supra. 5.3 It was further submitted that the Appellant had failed to satisfy that the appeal had no prospects of success, did not show that the Appellant would suffer irreparable damage if the stay is not granted and had thus failed to satisfy the two-fold test laid down in the Carmine and Watson Nkandu Bowa Case supra. 5.4 The 1st Respondent countered the Appellants further arguments on the prospects of success by further submitting that unchallenged evidence showed that the 1st Respondent was the rightful owner of the land for which he was issued Title in 2005 and the allocation of the said land to him was corroborated by properly passed and adopted Lusaka City Council minutes as well as the testimony of witnesses from the Ministry of Lands. It was emphasized that the Appellant neither challenged this R14 of 19 evidence nor offered any credible contrary evidence, and that documents produced by the Appellant were expressly disowned by the relevant public institutions. 5.5 That the cases of Mundanda v Mulwani and Others supra and Wesley Mulungushi v Catherine Bwale Mizi Chomba supra, which were in relation to contracts for the sale of land and the equitable remedy of specific performance where damages were considered inadequate compensation, were different from the circumstances in casu where there was no sale of property but a dispute over land allocated by lawful authorities. 5.6 We were urged to dismiss the application. 6.0. APPELLANTS ARGUMENTS IN REPLY 6.1 In reply, the Appellant re-emphasized the case of Elizabeth Chama v Elias Tembo and Others !11l on the need to comply with "Annexure A" of the Circular 1 of 1985. That in casu, the Circular was not complied with meaning that the Certificate of Title was obtained malafide and should be annulled. 6.2 Further, that the Respondent's actions amounted to fraud within the meaning of well-established authorities such as RlS of 19 Ngongolo Farm Limited v Zambia National Commercial Bank Limited, Kent Choice Limited (in Receivership) and Charles Haruperi 1 12 1 and Nkhumbwi Phiri v Sauket Hussein Dalal 1 13 1, quoting Lloyds Bank Limited v Marean 1141 in which fraud was defined to include falsehood, dishonesty and suppression of the truth. 6.3 The Appellant reiterated his argument that the documents he had produced were not challenged during discovery. That his documents should have been interpreted on face value and he cited Cavmont Bank v Lewis Nathan SCZ Judgment115 l, where the Supreme Court held that Courts must not rely on extraneous evidence when interpreting documents. 6.4 He opined that the contradictions between the serial number and property number created a material lacuna which could be resolved in his favour by the Court and in support cited the case of Zimba and Another v K.B. Davies and Company Limited and Another 1161. 6.5 The Appellant re-emphasized this view that the 1st Respondent had neither complied with Circular No. 1 of 1985 nor advanced any credible legal argument to justify his acquisition of the R16 of 19 land, while the Appellant's grounds of appeal, particularly grounds 1 and 2, stood on firm authority and demonstrated strong prospects of success. 6.6 In conclusion, he reiterated that the Appellants Appeal enjoys real prospects of success and prayed that we grant a stay of execution in the interest of justice, so as not to perpetuate the injustice occasioned by allowing the 1st Respondent to enjoy the benefit of a Title acquired through a non-existent procedure. 7 DECISION 7 .1 I have considered the Application and Arguments filed in support and in opposition by both parties and note that they both agree that in terms of Order X Rule 4(5) of the Court of Appeal Rules and Order 59 Rule 13(2) of the Rules of the Supreme Court of England, 1965 (1999 Edition) an Appeal does not, in itself, operate as a stay of execution. 7.2 The Appeal, to a large degree challenges findings of fact made by the lower Court. The bar for moving an appellate court to interfere with a trial courts findings of fact is quite high as demonstrated in the case of Nkhata and four others v The Rl7ofl9 Attorney General of Zambia 1171w here the Supreme court held as follows: "A trial Judge sitting alone without a jury can only be reversed on questions off act if: (1 ) the Judge erred in accepting evidence; or (2) the Judge erred in assessing and evaluating the evidence by taking into account some matter which he should have ignored or failing to take into account something which he should have considered; or (3) the Judge did not take proper advantage of having seen and heard the witnesses; (4) external evidence demonstrates that the Judge erred in assessing the manner and demeanour of witnesses." 7 .3 These principles were reaffirmed in the case of Attorney-General v Marcus Kampumba Achiume supra and the position of the law in this regard remains cast in stone. 7.4 I have also considered the Appellants arguments and authorities cited in relation to how disputes over land should be treated vis a-vis granting injunctions, stays of execution and other restraining and preservation orders. See Mundanda v Mulwani R18 of 19 and Others supra and Wesley Mulungushi v Catherine Bwale Mizi Chomba supra cited by the Appellant. 7 .5 The relief is not granted automatically simply because a dispute involves land, a real connection to the land must be shown in tandem with the Appeal having good prospects of success. I am not convinced that the Appellants case meets the benchmark. 7 .6 Both parties are agreed that in order to successfully obtain a Stay of Execution of Judgment the Applicant must satisfy the Court that the Appeal has prospects of success and/ or there exist special circumstances to warrant the application being granted. See Zambia Revenue Authority v The Post Newspapers Limited supra, Sonny Paul Mulenga & Vismer Mulenga, Chainama Hotels Limited & Elephants Head Hotel Limited v Investrust Merchant Bank supra; Nyampala Safari's Zambia Limited & Others v Zambia Wildlife Authority & Others 1is1 7. 7 When considering the prospects of an Appeal succeeding, an Appellate Court must avoid delving too deeply into the facts and avoid pronouncements or holdings that will have the effect of determining or influencing the Court's decision in the Appeal. R19 of 19 7 .8 Having said that, I have considered the detailed arguments advanced by both parties and find that the Appeal does not have good prospects of success. 7. 9 In the premises, I see no merit in this Application and find no reason to deprive the 1st Respondent from enjoying the fruits of his Judgment and recall the Supreme Courts sentiments in the case of John Kunda v Keren Motors (Z) Limited 1 19 1a s follows; "To say there is no prejudice when the successful party holds on to an unexecuted Judgment is a statement made without conviction." 7 .10 This Application for Stay of Execution of Judgment is dismissed with costs to the 1st Respondent. Dated this 9th day of December, 2025. ······~ ·······'t·······?:. .... M.M.KONDOLO,SC COURT OF APPEAL JUDGE