Ikanuke Mutanekelwa Noyoo v Luck One Enterprises & Property Ltd and Ors (APPEAL NO. 159 OF 2025) (31 October 2025) – ZambiaLII

1, IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO.159 OF 2025 HOLDEN AT KABWE (C ivil Jurisdiction) or,. ...... .. -1 - : 1 v I i:....s ... J BETWEEN: IKANUKE MUTANEKELWA NOYOO APPELLANT AND LUCK ONE ENTERPRISES & PROPERTY LTD 1 RESPONDENT ST ELYWIN HAMOONGA & 27 OTHERS RESPONDENT 2ND CORAM: Chashi, Ngulube and Banda-Bobo, JJA ON: 15th and 31st October 2025 For the Appellant: B. Mwelwa, Messrs. Mwelwa, Phiri & Partners For the 1st Respondent: N/ A For The 2nd Respondents: H.C. Musa (Mrs}, Messrs. Milner & Paul Legal Practitioners JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. M vs Home Office and Another [1992) 4 All ER, 97 2. Benjamin Mwila v Victor Brandbury - SCZ Judgment No. 18 of 2013 3. Attorney General v Kakoma (2003) ZR, 123 4. Regina Mpampi v Danielle Stavio Morelli and Another - CAZ Appeal No. 119 of 2024 -J 25. Hina Furnishing Lusaka Limited v Mwaiseni Properties Limited (1983) ZR, 40 6. Rotor Moulder Enterprises Limited v Stanley Jordan and Others - CAZ Appeal No 211 of 2022 7. Bank of Zambia v Alshams Building Materials Company Limited and Others - CAZ/08/430/2023 Legislation Referred to: 1. The Court of Appeal Act, No. 7 of 2016 Rules referred to: 1. The Supreme Court Practice (Whitebook) 1999 1.0 INTRODUCTION 1.1 This is an appeal against the Ruling of Honorable Mr. Justice Bonaventure C. Mbewe, delivered on 26th June 2024. By the said Ruling, the learned Judge dismissed the Appellant's application for a writ of possession. 2.0 BACKGROUND 2.1 By writ of summons accompanied by a statement of claim dated 11th July 2018, the Appellant commenced an action in the court below claiming, inter alia, specific performance of a contract of sale -J 3entered into with the 1st Respondent for the purchase of the Remaining extent of Subdivision 1 of Subdivision A of Farm No.406a, Lusaka (the property) and the immediate payment of the remaining balance of K320, 600.00, due on the purchase price. 2. 2 Following a notice of admission by the 1st Respondent, on 9th August 2013, a Judgment on admission was entered by the court below, which contained the following orders: 1. The 1st Respondent was to make full payment of the remaining balance on the purchase price in the sum of K320, 600 with interest immediately upon receipt of the judgment. 2. The Appellant was to surrender to the 1st Respondent the original certificate of title to the property upon the 1st Respondent completing the payment. 3. That should the 1st Respondent fail to make payment of the admitted sum, the contract of sale entered into between the parties shall terminate forthwith and the Appellant shall be at liberty to -J 4i repossess the property and to sell and thereafter refund the 1st Respondent the money paid to date, less any penalties to be imposed under the terms and conditions in the contract of sale and any costs as may be incurred by the Appellant in processing the re-sale of the property. 2.3 Subsequently, the Appellant's advocates, by a letter dated 17th July 2019, wrote to the 1st Respondent's clients, the 2nd Respondents, who had purchased plots on the property from the 1st Respondent, informing them that the contract of sale between the parties had been terminated and the sale of the property to the 2nd Respondents had consequently been nullified. 2.4 Fearing the demolition of the structures they had erected on the plots, the 2nd Respondents applied for joinder to this matter and by a ruling dated 10th February 2020, the 2nd Respondents were joined as interested parties. 2.5 Meanwhile, the Appellant continued to receive installment payments from the 1st Respondent -J 5towards the purchase price, which prompted the 1st Respondent to file an application to vary the Judgment on admission to allow it to liquidate the judgment debt in installments. 2.6 By a ruling dated 11th February 2020, the court below refused the application and found that the interested parties did not have any legal right to protect as they had not acquired good title to the land they bought from the 1st Respondent owing to its failure to adhere to terms of the Judgment on admission. The court therefore ordered the interested parties to yield vacant possession within 30 days failing which the Appellant would be at liberty to issue writs of possession without further recourse to the court. 2.7 The 2nd Respondents paid the balance of the purchase price owed by the 1st Respondent and proceeded to launch contempt proceedings against the Appellant for refusing to surrender the original certificate of title to the 1st Respondent after the purchase price was liquidated. -J 62.8 By a judgment dated 2nd September 2022, the court below found the Appellant not guilty of contempt as the 1st Respondent had not paid interest to the Appellant as adjudged in the judgment on admission. The court further proceeded to make the fallowing orders: 1. The alleged Contemnor shall calculate and communicate the amount of interest payable in accordance with the terms of the Law Association of Zambia Contract and Conditions of sale due from the Defendant under the judgment of 31st August 2018 within the next 30 days 2. The Defendant shall pay the said interest within 60 days thereafter. In default, alleged Contemnor shall be at liberty to invoke the terms of the judgment on Admission. 2.9 The Appellant applied for leave to appeal the above ruling which application was declined by the court below. -J 7- ! 3.0 THE APPLICATION FOR POSSESSION 3.1 On 26th January 2023, the Appellant filed summons for leave to issue a writ of possession pursuant to Order 45 Rule 3 of the Rules of the Supreme Court1 (RSC). In the attendant affidavit, the Appellant asserted that he was not aware of the Court below's ruling of 11th February 2020 and based on that ruling he was at liberty to take up possession of the property. 3.2 The 2nd Respondent opposed the application and asserted that the effect of the Appellant electing to receive payment installments towards the purchase price even after the judgment on admission, was that he lost the right to terminate the contract of sale. The 2nd Respondent contended that the judgment on admission and the ruling of 11th February 2020, had been overtaken by events as the Judgment dated 2nd September 2022, is the finaljudgment on record with the final orders. 3.3 Further, the Respondents averred that the 2nd Appellant had failed to compute interest as ordered -J 8by the Court in the judgment of 2 nd September 2022, which was instead computed by the 1st Respondent and paid into Court by the 2nd Respondents. The 2nd Respondents asked the Court below to dismiss the application and order the Appellant to release the certificate of title relating to the property in issue. 4.0 RULING OF THE COURT BELOW 4.1 After considering the application by the Appellant and all the documents filed by the parties, the learned Judge found that the Appellant sought an order to repossess a property which he sold and has since received full consideration for. He also found that the Appellant altered his position by continuously receiving money from the Respondents until just before the contempt proceedings. 4.2 The learned Judge recounted his last orders for the Appellant to compute interest and for the Respondents to pay that interest and found that those orders had not been overturned. Given that there was no default by the 1st Respondent and those claiming under it following the Appellant's continued -J 9- ! receipt of money from the Respondents, the learned Judge found that giving the Appellant leave to issue the writ of possession was not in the interest of justice. 5.0 THE APPEAL 5.1 Dissatisfied with the Ruling of the Court Below, the Appellant has appealed to this Court advancing five grounds as follows: 1. That the learned High Court Judge erred in law and fact when he held that "the Plaintiff herein, seeks an order to repossess a property which he sold and has since received full consideration", and yet the contract of sale was terminated as per judgment on admission and ruling dated 9th August, 2018 and 26th November 2018 respectively 2. That the learned High Court Judge erred in law and fact when he held that the Plaintiff has no right to possession of the property owing to his continued receiving of money -J 10while failing to consider his position in his ruling on 11th February 2020 wherein he found that the Defendants were not legal owners of the property owing to the absence of a deed of assignment. 3. That the learned High Court Judge erred in law and fact when he refused to grant the plaintiff leave to issue Writ of Possession when in the ruling of the 11th February 2020 he held that the plaintiff was on firm ground to seek to enforce his rights under the judgment on admission of 9th August 2018. 4. That the learned High Court Judge erred in law and fact when he proceeded to interfere with his earlier decisions of 9th August 2018 and Ruling of 11th February 2020, which Judgment and Ruling made him functus officio. 5. That the learned High Court Judge erred in law and fact when he dismissed the -J 11plaintifrs application for leave to issue the Writ of possession. 6.0 ARUMENTS IN SUPPORT OF APPEAL 6.1 Mr. Mwelwa, Counsel for the Appellant, relied on the heads of argument filed into court on 13th June 2025, which he augmented with brief oral submissions. In support of ground one, Counsel recounted the events in the court below and argued that on 7th December 2018, the Appellant terminated the contract with the 1st Respondent by a letter appearing at page 104 of the record of appeal (the record) and took the property back. 6.2 In support of ground two, Counsel argued that in the ruling dated 11th February 2020, the court below found that the Respondents were not the legal owners of the property owing to the absence of a deed of assignment and ordered the Respondents to yield vacant possession. According to Counsel, the Respondents are bound by the above decisions of the court below because they have not appealed against them. The cases of M v Home Office and Another, 1 -J 12Benjamin Mwila v Victor Brandbury2 and Attorney General v Kakoma3 were relied on in this regard. 6.3 With respect to ground three, certain pages appear to be missing, making it impossible to determine the arguments raised in support of this ground. 6. 4 In ground four, Counsel argued that the court below lost jurisdiction after delivering the ruling of 11th February 2020 and became functus officio. In addition, Counsel argued that by making the orders it did in the Ruling of 2nd September 2022, the learned Judge sought to overrule another High Court Judge of equal jurisdiction as the earlier orders were under the hand of another Judge. The case of Regina Mpampi v Danielle Stavio Morelli and Another4 was cited in that respect. 6.5 In ground five, Counsel argued that the Respondents did not appeal the judgment on admission and the ruling of 11th February ordering the Respondents to yield vacant possession which entails that they agreed with that holding and it ought to be enforced by a writ of possession ordered by the High Court. -J 136.6 In his oral submissions, Counsel maintained that the ruling of 11th February 2020, remained in effect and clearly entitled the Appellant to issue a writ of possession should the 2nd Respondent fail to yield vacant possession. To date, the 2nd Respondent has neither appealed against nor varied that ruling. 6.7 He submitted that, since the 2nd Respondent failed to yield vacant possession, the Appellant was entitled to the writ of possession, and that any subsequent orders inconsistent with that ruling were made per incuriam and that the Court had since become functus officio. Counsel prayed that the appeal be allowed with costs. 7.0 2nd RESPONDENTS' ARGUMENTS IN RESPONSE 7.1 Mrs Musa, Counsel for the 2nd Respondent, equally relied on the written heads of argument dated 16th July 2025 and augmented the same with brief oral submissions. Counsel argued grounds 1 and 4 as lone grounds, but opted to argue grounds 2, 3 and 5 together. -J 147.2 In response to ground one, Counsel argued that the contract of sale between the Appellant and 1st Respondent was not terminated by the letters dated 7th December 2018 and 17th July 2019, because on 1st October 2019, in a letter appearing at pages 277 and 278 of the record, the Appellant wrote to the 1st Respondent asking for payment as agreed. 7. 3 In relation to the ruling delivered on 11th February 2020, the 2nd Respondent submitted that the orders therein were made prior to the liquidation of the purchase price and interest. It was argued that, since the Appellant had received payment, the Court was on firm ground in reaching its decision. 7.4 In addition, it was contended that the Appellant cannot both be paid and recover the land, as this would amount to unjust enrichment on its part. 7.5 Counsel reiterated that the ruling of 11th February 2020, heavily relied on by the Appellant, has since been overtaken by events by the ruling dated 2nd September 2022. -J 157.6 It was argued that by this appeal, the Appellant was attempting to appeal against the judgment dated 2nd September 2022, as the application for leave was refused. 7. 7 Relying on the case of Hina Furnishing Lusaka Limited v Mwaiseni Properties Limited, 5 Counsel argued that the Appellant has not come to Court with clean hands, as he has not surrendered the certificate of title to the 1st Respondent despite being paid in full. 7.8 In her oral submissions, Mrs. Musa reiterated the arguments in the heads of argument and maintained that it would be contrary to the interests of justice for the Appellant to issue a writ of possession, while retaining the monies paid to him in full. We were urged to dismiss the appeal for lack of merit and to order the Appellant to release the original certificate of title. Counsel further prayed for costs. 8.0 APPELLANT'S ARGUMENTS IN REPLY 8.1 In its reply, Counsel responded to the arguments in the same order as presented by the 2nd Respondent. -J 168.2 In relation to ground one, Counsel contended that the Appellant had no contractual relationship with the 2nd Respondents. It was further argued that, since the Appellant was not joined to the proceedings that preceded the ruling of 11th February 2020, any rights asserted by the 2nd Respondent therein were without merit. 8.3 Our attention was directed to page 346 of the record where the court below held that the contract between the parties was terminated when the 1st Respondent failed to pay the balance of the purchase pnce as ordered in the judgment on admission. 8.4 Counsel submitted that there was no agreement between the Appellant and the 2nd Respondent and, as such, the Appellant was not bound by any payments made. It was further argued that the said payments were deposited into the Appellant's account without his consent or any underlying agreement. Consequently, Counsel argued that such payments could either be treated as rent, given that -J 17the 2nd Respondent occupies the property without a valid agreement, or be refunded. 8.5 In reply to ground four, it was argued that the court below held that the Appellant was entitled to vacant possession and that there was no agreement between the Appellant and the 2nd Respondents. This being the case, their recourse lay with the 1st Respondent. Counsel reiterated that the 2nd Respondents have accepted this finding of the court below as they have not appealed. 8.6 It was further argued that the judgment of 2nd September 2022 was a nullity because the 2nd Respondents were allowed leave to file contempt proceedings against the Appellant when they had no cause of action against him and in that judgment the court below made orders contrary to the judgment on admission. 8.7 In relation to grounds 2, 3 and 5, Counsel submitted that all the actions taken by the 2nd Respondents after the ruling of 11th February 2020, were a nullity and that the 2nd Respondents cannot benefit from -J 18their own illegality. It was argued that the 2nd Respondents are in possession of the land illegally as they were ordered to yield vacant possession within 30 days from 11th February 2020. 9.0 ANALYSIS AND DECISION OF THE COURT 9. 1 We have considered the grounds of appeal, the arguments advanced by both parties and the Ruling being impugned. In our view, the issue for determination is whether the lower court ought to have granted the application for leave to issue a writ of possession. 9.2 In the case of Rotor Moulder Enterprises Limited v Stanley Jordan and Others,6 this Court had occas10n to consider the principles governing the issuance of a writ of possession and we guided as follows: "A writ ofp ossession is one of the various modes in which a judgment or order for the giving of possession of land may be enforced as provided for under Order 45 rule 3 supra. This, in itself, entails that before a writ of possession can be -J 19issued, there ought to be an order or judgment giving possession of land." 9.3 It follows, therefore, that ancillary to the issue for determination, is the question of whether there was in existence ajudgment or order of the Court granting the Appellant possession of the property. 9.4 The Appellant contends that he ought to be granted leave to issue a writ of possession on the basis that both the judgment on admission and the ruling of 11th February 2020 effectively granted him possession of the property. 9. 5 On the other hand, the Respondents argue that 2 nd those orders granting possession have been overtaken by events, as the purchase pnce of the property, together with interest have since been fully settled. It is further contended that the said orders were overtaken by the subsequent Ruling of 2nd September 2022. 9.6 As earlier outlined, a judgment on admission was entered by the court below on 9th August 2018, by Mweemba J, in which he ordered the 1st Respondent :;. -J 20- • to pay the remainder of the purchase pnce immediately upon receipt of the judgment. The court further directed that, in default of such payment, the contract would stand terminated, and the Appellant would be at liberty to re-possess and re-sell the property. 9. 7 The 1st Respondent did not immediately pay the outstanding balance on the purchase price but sought by an application to the Court, to liquidate the judgment debt in installments. By a ruling dated 26th November 2018, Mweemba J, dismissed the application and ordered that the judgment sum together with interest be paid forthwith. 9.8 Meanwhile, the Appellant began receiving payments on the purchase price from the 1st Respondent. The Appellant then wrote to the Respondents terminating the contract of sale but his Advocates, vide a letter dated 1st October 2019, requested the 1st Respondent to pay the remainder of the purchase price by 4th December 2019. At this stage, the purchase price had been reduced to Kl 71,600.00 as evidenced by the -J 21statement of payments appearing at page 297 of the record. 9. 9 It is worth noting that during this time, the court orders granting the Appellant liberty to repossess the property remained valid and subsisting. 9.10 Faced with the deadline of 4th December 2019, on 4th November 2019, the 1st Respondent sought to vary the judgment on admission on the grounds that the Appellant had elected to receive part payments from the 1st Respondent as opposed to terminating the Contract of sale and taking possession of the property. The Appellant opposed this application and stated his resolve to repossess the property. 9. 11 When this application was made, the matter had been re-allocated to B.C Mbewe J. He delivered a ruling on 11th February 2020, wherein he found that the orders in the judgment on admission were still valid and enforceable as they had neither been varied nor overturned on appeal. He opined that the contract between the parties was terminated by virtue of clause three of the judgment on admission. -J 22In addition, the learned Judge considered whether there was estoppel against the Appellant for taking money from the Respondents after the judgment on admission. 9.12 After considering the facts before him, the learned Judge found that the 1st Respondent had failed to comply with the judgment on admission even after a year of it being handed down. He therefore, found that the Appellant was on firm ground in seeking to enforce his rights under that Judgment, notwithstanding the partial payments made towards the purchase price. Consequently, the learned Judge ordered the 2nd Respondents to yield vacant possession to the Appellant within 30 days. 9.13 Following that ruling, it is not in dispute that the 2nd Respondents deposited a sum of KS 1,600.00 into the Appellant's account to clear the outstanding balance on the purchase price. The Appellant, however, vehemently maintains that this payment was made without his knowledge. -J 239.14 When the 2nd Respondent failed to obtain the certificate of title relating to the property from the Appellant despite liquidating the balance on the purchase pnce, they commenced contempt proceedings against the Appellant to compel him to surrender the title. 9.15 In determining the contempt proceedings, the learned Judge found that the Appellant had acquiesced to the delayed payments, as he had not returned the monies paid to him outside the period initially ordered by the Court. The learned Judge accordingly ordered the Appellant to compute the interest due to him under the judgment on admission within 30 days, which the 1st Respondent was to pay within 60 days. In default, the Appellant would be at liberty to invoke the terms of the judgment on admission. 9.16 At this point, the Appellant could only invoke the terms of the judgment on admission granting him possession of the property if there was a default by the 1st Respondent. Dissatisfied with the ruling, the Appellant sought leave to appeal on 4th October 2022, -J 24- • • which was denied by the court below on 28th October 2022. 9.17 The Appellant thereafter appears to have abandoned the process of obtaining leave and instead filed an application for leave to issue a writ of possession that birthed the instant appeal. 9.18 In consideration of that application, the learned Judge observed that his order of 22nd September 2022, had neither been varied nor appealed against. He further observed that the Appellant had failed to calculate and communicate the interest due to him as earlier directed. The learned Judge therefore upheld his earlier orders, as there had been no default by the 1st Respondent. 9. 19 Now, in the case of Bank of Zambia v Alshams Building Materials Company Limited and Others,7 in a Ruling of the full Court on a motion, we guided as follows: "In our jurisdiction however, an order of the court must be obeyed whether perceived to be a nullity, illegal, void, irregular or for other similar reasons .... -J 25- • • until it has been vacated or set aside by the same court or on appeal." 19.20 Consequently, the effect of the orders made by the court below on 22nd September 2022, was that the Appellant could not issue a writ of possession as the 1st Respondent had not defaulted on the said orders. 19. 21 Those orders remain in force as there is no appeal before us against the Ruling of 22nd September 2022, following the refusal by the court below to grant leave as required in Section 23(1)(e) of The Court of Appeal Act. 1 Further, the orders have not been set aside or varied by the court below. 19.22 In view of the aforestated, we find no fault in the learned Judge's decision to refuse to grant the Appellant leave to issue a writ of possession, as the earlier orders granting him liberty to repossess the property have since been superseded. 20.0 CONCLUSION 21.1 In sum, the appeal is bereft of merit and is accordingly dismissed with costs to the 2nd -J 26J Respondents. taxed 1n default of agreement. J. CHASHI COURT OF APPEAL JUDGE P.C.M. NGULUBE A.M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE