Yunus Patel v Nicholas David Charles Action and 2 Ors (Appeal No.101/2024) (6 June 2025) – ZambiaLII

• • IN THE COURT OF APPEAL OF ZAMBIA Appeal No.101/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN YUNUS PATEL APPELLANT AND NICHOLAS DAVID CHARLES ACTION 1 RESPONDENT ST TRATSWEN LIMITED 2ND RESPONDENT ATIMA JUSA (T / A TREED TRADING) 3RD RESPONDENT CORAM: Siavwapa JP, Chishimba and Patel, JJA On 25th March and 6th June 2025 For tne Appellant: Mr.P. Busungu of Messrs Steven Osbourne Advocates For the 1st Respondent: N/A For the Respondent: N/A 2nd For the 3rd Respondent: Mr. I. Simbeye of Messrs Malisa and Partners Legal Practitioners JUDGMENT CHISHIMBA JA, delivered the Judgment of the Court. CASES REFERRED TO: 1. Lusaka West Development Company Limited and B.S.K Chiti (Receiver) and Zambia State Insurance Corporation v Turnkey Properties Ltd (1990) ZR 1 . , J7 • 2. Zambia Seed Company Limited v Chartered International (PVTI Limited SCZ Appeal No. 20 of 1999 3. Attorney General v EB Jones Machinist SCZ Appeal No. 26 of 2000 4. Galaunia Farms Ltd v National Milling Company Limited 12004) ZR 1 5. Barloworld Equipment Zambia Limited v NAC 2000 Corporation Limited SCZ Appeal No. 46 of2009 6. Clementina Banda and Emmanuel Njanje v Boniface Mudimba (2010/HP/ A39) 7. Josephine Kabwe v Dominic Kapasa SCZ Appeal No. 4 of 2014 8. Mususu Kalenga Building Limited J. Richman Money Lenders Enterprises 1999ZR 27 9. Moses Milambo (Administrator of the estate of Alfred Siandavu and Another v Florence H. Mweembal CAZ Appeal No. 009 /2020 10. Tap Zambia Limited v Percy Limbusha and Others Appeal No. 31/2025 SCZ No. 47 /2017(SCI 11. Ngoma & Others v LCM Company Limited & Another SCZ Appeal No. 22 of 1999 12. Peter Mutale v Davies Mukumbwa CAZ Appeal No. 24/2024 13. LC & DK Limited (In Receivership) Angel Poultry Ltd v. Lovemore Chikuni Chinyama CAZ Appeal 270 of 2020 14. Julika Enterprises and Others v Zambia State Insurance Corporation and Others SCZ Appeal No.53 of 2009 15. Mumba v Lungu 2014 Vol 3 ZR 351 LEGISLATION REFERRED TO: 1. The Rules of the Supreme Court of England 2. The Sheriffs Act Chapter 37 of the Laws of Zambia 3. The High Court Rules, Chapter 27 of the Laws of Zambia 4. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 1.0 INTRODUCTION 1. 1 This is an appeal against the ruling of Judge 13.C Mbe,ve setting aside, the execution of the writ of possession and tl1e ·warrant of distress for being irregular and excessive. 2.0 BACKGROUND 2.1 The appellant con1menced an action against the 1 s1 and 2:id respondents for the foreclosure and sale of Subr.livision V of • J3 Subdivision No. 1 of Subdivision E of Farm No 487a, Lusaka hereinafter referred to as "the subject property". The appellant averred that he entered into a profit-sharing agreement with the 1st and 2nd respondents, where he invested the sum of USO 30,000.00. It was a term of the agreement that profits amounting to 26% of the business's gross profit or a monthly payment of USO 2,046.00 over four months would be paid to the appellant. Under the agreement, the subject property was given as security over the appellant's investment. 2.2 The 1st and 2nd respondent failed to pay the appellant his dues under the agreement. Despite several reminders for pa}ment, the 1st and 2nd respondents remained indebted to him under the agreement. 2.3 Thereafter, the appellant instituted an action in the High Court seeking payment of the sum of the sum of USO 120,000.00 as compensation over and above the principal sum and profits agreed, or alternatively, repayment of the sum of USO 30,000.00, the principal investment in the business. The appellant further sought payment of the sum of USO 8,184.00 being the total profit earned from the business over four J4 months. In addition, legal fees in the sum of USD 677.00 paid on behalf of the 1st and 2nd responde n ts was also sought. In the event of failure to pay the amounts owed, the appellant sought an order for foreclosure and sale, as well as an order for delivery of possession of the subject property. 2.4 By a Consent Judgment dated 20th September 2022, the appellant and the 1st and 2nd respondents agreed that the appellant be paid the sums ofUSD 38,184.00 and USO 677.00 for legal fees on or before the 31 •t of October 2022. It was a term of the Consent Judgment that in the event of default, an order for foreclosure and delivery of possession of the subject property be issued on 1•c November 2022. On 16ch November 2022, the appellant took out a writ of possession in respect of the subject property. 2.5 The 3rd respondent applied to be joined to the proceedings, stating her interest in the matter as a sitting tenant of the subject property. The appellant did not oppose the joinder application, and as a result, the Court joined the 3rd respondent to the proceedings on 13th ,July 2023. JS 2.6 On 9th August 2023, the 3rd respondent applied to set aside the executions for irregularity and for an order of assessment of damages arising from the irregular execution. In the supporting affidavit, the 3rd respondent stated that after the appellant took possession of the subject property, they entered into a lease agreement under which the 3rd respondent agreed to pay a monthly rent ofUSD 2,100.00. Under the lease agreement, the 3rd respondent held the right of first refusal. On the 31st January 2023, the subject property was advertised for sale at USD 100,000.00. Exercising her right, the 3rd respondent expressed interest in purchasing the property and requested a contract of sale. 2. 7 On the 3rd February 2023, the respondent, with the consent 3rd of the appellant, entered into a sub-lease of the retail unit with Scallywags at USO 4,000.00 pending the purchase of the subject property. On the 8th March 2023, the appellant wrote to the 3rd respondent alleging a breach of the lease agreement for failure to pay rentals in the sum of USD 2,145.00. The appellant, together with bailiffs, seized the 3rd respondent"s goods valued at over ZMW 1,406, 962.00. J6 2.8 The 3 respondent contended that the appellant should have 1·d availed her with a contract of sale and not a demand for rentals. That the execution was excessive given the amount owed. The 3rd respondent argued that she was not served with process or any application for leave to issue the w-rit of possession as provided under Order 45 Rule 3 of the Rules of the Supreme Court. 2.9 In response, the appellant, in the affidavit in opposition, stated that damages are only awarded by the Court after the matter has been determined on the merits. The appellant further stated that the subject property was already sold and, therefore, the order sought to set aside the execution is a nugatory exercise. 3.0 DECISION OF THE COURT BELOW 3.1 The Court held that it had jurisdiction to hear the matter relating to the 3°d respondent's occupation of the subject property because the joinder application disclosed she had an interest and was affected by the Consent Judgment. The Court observed that the appellant's opposition did not dispute the facts around the execution and levying distress but simply J7 argued that the 3rd respondent rushed to claim for assessment of damages. 3.2 The learned Judge also held that the appellant failed to give the 3rd respondent notice of the proceedings, as required under Order 45 RSC, when executing the writ of possession, despite being aware of the 3°d respondent's tenancy and occupation of the subject property. The lease agreement had a clause granting the 3°d respondent first refusal over the property. The Court noted that the 3rd respondent exhibited a copy of her offer letter to buy the property, whilst the appellant did not show any reply to the letter. The Court found that the appellant had advertised the subject property at the end of January 2023 and set a reserve price. Therefore, the appellant must have received offers, \Vhich should have allowed him to either accept the 3rd respondent's offer or give her the opportunity to match a competing offer, thereby fulfilling his contractual obligation to grant her the right of first refusal. 3.3 The Court, therefore, faulted the appellant for remaining silent on the offer and later levying distress over rentals, \Vhich should not have been incurred had the appellant responded promptly J8 to the offer. The Court concluded that the execution was unlawful owing to the absence of notice to the 3rd respondent as required under Order 45 RSC. In addition, the Court held that the execution by way of distress for rent was far more than the rent owed. 3.4 As a result, the Court ordered that the 3rd respondent be reinstated on the subject property and be allowed to exercise her right of first refusal to purchase the property. Furthermore, the Court ordered the restoration of the seized goods to the 3rd respondent, or, in the event of non-compliance, compensation for the value of the goods. The Court also awarded the 3rd respondent damages for ,vrongful execution and wrongful distress. 4.0 GROUNDS OF APPEAL 4.1 Dissatisfied ,vith the decision of the Court below, the appellant appealed, advancing eight grounds of appeal couched as follows; i) The trial Court erred in both law and facts to have held that it had the jurisdiction to hear the claimant on the basis that her application for joinder had disclosed that she had interest and was affected by the Consent Judgment against the evidence on record and the established principle of law to the effect that a J9 Consent Judgment can be challenged or set aside by the commencement of a fresh action. iii The Trial Court erred in both law and fact in assessing and evaluating the evidence when it made a finding that the execution of a writ of possession on the Defendants was irregular for want of notice of the proceeding given to the claimant as required by Order 45 RSC against the evidence on record that in fact leave to issue writ of possession was expressly given in the Consent Judgment dated 14th September 2023 thereby diluting the need to give notice of proceedings to the claimant though the claimant had notice of the proceedings as disclosed by the evidence before Court on record. iii) The Trial Court erred in both law and fact in assessing and evaluating of the evidence on record when it made a finding on page 17 of the ruling dated 23rd October 2023 judgment that execution of warrant of distress was wrongful and irregular against the evidence on record to the effect that the Claimant breached the lease agreement by failing to pay rentals. iv) The Trial Court erred in both law and fact in assessing and evaluating the evidence on record when it held that the execution of the writ of distress was irregular as the Claimant was not given notice of the proceedings against the evidence on record that the seizure of the goods was as a result of the failure to pay rentals in terms of the lease agreement between the Plaintiff and the Claimant. vJ The Trial Court erred in both law and fact in assessing and evaluating the evidence on record when it made a finding that the execution by way of levying distress over the claimant's goods was irregular and excessive in the absence of the assessment of damages or valuation of the said properties which are sold at public auction sale. JlO vi) The Trial Court erred in both law and fact to have made the following orders a) An order that the Claimant be allowed back on the property. bl An award of damages to the Claimant for wrong execution and distress c) And for restoration of goods which were seized by way of levying distress for failure to pay rentals against the evidence on record, which show that the Claimant is not entitled to the said reliefs. vii) The Trial Court erred in both law and fact to have issued a ruling which is at variance with the Consent Judgment. viii) The Trial Court erred in both law and facts to have allowed the application by the Claimant against the evidence on record that this application was made not within a reasonable time as it was too late in the day. 5.0 APPELLANT'S HEADS OF ARGUMENT 5.1 In support of ground one, the appellant submitted that the decision of the Court below to join the 3rd respondent to the proceedings essentially allowed the 3rd respondent to challenge the Consent Judgment. It was argued that only a party to the action can set aside a Consent Judgment, as held by the Supreme Court in the case of Lusaka West Development Company Limited and B.S.K Chiti (Receiver) and Zambia State Insurance Corporation v Turnkey Properties Ltd11l. Further, in Zambia Seed Company Limited v Chartered Jll International (PVTI Limitedl21, the Court stated that the only way to set aside a consent order would be by commencing a fresh action specifically to challenge it. 5.2 It is the appellant's position that the 31·d respondent, who is considered a claimant, has to sue the instigator of the purported irregular execution of the writ of possession rather than making a claim in the existing action. This is in line \vith section 14 of the Sheriff's Act. We were referred to the case of Attorney General v EB Jones Machinist 13 l, where the Court echoed that section 14 of the Sheriff's Act gives immunity to the Sheriff and his officers. A party should sue the party that issued the execution for any resultant damage for wrongful execution. 5.3 Further, the appellant argues that the 3rd respondent was a\vare of the proceedings relating to the writ of possession as evidenced in paragraphs 10 to 15 of the affidavit in support for joindcr. By the 3,·t1 respondent entering a new lease agreement with the appellant, the new owner of the subject property, the 3rd respondent waived her right to set aside the writ of possession. Therefore, the 3rd respondent is estopped from challenging the execution of the Consent Judgment on the grounds of J12 irregularity. The case of Galaunia Farms Ltd v National Milling Company Limited 4 was cited to clarify the basis of estoppel. The Court explained that estoppel arises when a party has conducted themselves in such a manner that it would be unjust or unfair to allow them to depart from a particular state of affairs that another party has relied upon as settled or correct. 5.4 Grounds three, four and five were argued together. The appellant submitted that the 3rd respondent did not dispute breaching the lease agreement, which led to the execution of a warrant of distress because the relationship between the appellant and the respondent is between landlord and tenant. That a lease agreement is like an ordinary contract; therefore, failure to pay rent amounts to a breach of contract. The case of Barloworld Equipment Zambia Limited v Nae 2000 Corporation Limitedl51 was cited as authority to argue that where a party to a contract fails to perform a fundamental obligation, such party is liable in breach of contract. 5.5 The appellant submitted that although the 3rd respondent had the right of first refusal under the lease agreement, the sale of JB the subject property to a third party could not be invalidated by that right of first refusal. As persuasive authority, the High Court decision of Clementina Banda, Emmanuel Njanje v Boniface Mudimba16 was cited on prior equitable interest that l it can only be defeated by bona fide purchaser for value without notice. In addition, the appellant submitted that no law compelled the appellant to sell the property to the 3rd respondent. As authority the case of Josephine Kabwe v Dominic Kapasal7 ·was cited as instructive in holding that no J la\V compels an un1,villing person to sell his property to a sitting tenant. Therefore, the appellant was within his rights to sell the subject property to a third party, Dr. Mwilola Imakando. 5.6 The appellant argued that the Court below erred in concluding that the execution of the Consent Judgment through the levying of distress on the 3rd respondent's goods was excessive, especially in the absence of a proper valuation of the properties \Vhich were sold at an auction. It was further argued that the assessment of damages is the only way of ascertaining how much damage a party has suffered. Therefore, the Court fell in !14 error by holding that the execution of the Consent Judgment was excessive. 5. 7 In arguing grounds six and seven, the appellant submitted that the Court below erred by ordering that the 3rd respondent be allowed on the property when the proceedings were a nullity as they violated the provisions of section 14 of the Sheriff's Act. In addition, the Court failed to recognise the interest of the bona fide purchaser for value ,vithout notice. There is evidence in the affidavit in support of the ex-parte summons for an order to stay execution dated 8th November 2023, that Dr. M\vilola Imakando bought the disputed property from the appellant before the proceedings by the 3°d respondent. The Court made an order that was impossible to execute and not enforceable because the subject property ,vas already in the hands of the third party. 5.8 With regard to ground eight, the appellant argued that the Court erred by allowing the 3rd respondent's application to set aside the writ for irregularity. That a party invoking the provisions of Order 2 Rule 2 RSC must satisfy the Court that there has been no inordinate delay in applying to set aside the action for JlS irregularity and that they have not taken meaningful steps to embrace the irregularity to avoid a waiver to claim their right. 5.9 The appellant submitted that the 3rd respondent made the application to set aside execution for irregularity on 9th August 2023, eight months from the date of signing the new lease. Eight months, therefore, amounted to an inordinate delay, and the Court should not have considered the application. Reference was made to Order 2 Rule 2 (3) RSC, which states that "a defendant who applies to set aside an irregular judgment three months after learning of the judgment may be too late to rely on 0.2 r.2". 5.10 In casu, the 3,·d respondent, as evidenced by the Ruling dated 23rd October 2023, applied to set aside the execution for irregularity on August 2023. According to the appellant, the 9th 3rd respondent \Vaived her right to challenge the execution of the \Vrit of possession. The appellant submitted that Order 2 Rule 2 (4) RSC stipulates that: "In order to establish a waiver, you must show that the party has taken some step which is only necessary or only useful if the objection has been actually waived or has never been entertained." J16 5.11 The appellant urged us to allow the appeal and set aside the decision of the lower Court \\.'ith costs. 6.0 RESPONDENT'S HEADS OF ARGUMENT 6.1 The respondent ,vi.th leave of Court filed Heads of Arguments dated 14th March 2025, in which they contend that ground one attacks the lower Courts Judgment on three fronts as follows: the jurisdiction of the Court below to hear the application for joinder, the finding that the 3rd respondent had interest in and was affected by the Consent Judgment and that the judgment abrogated the principle of the la,vthat a Consent Judgment can be challenged/ set aside by commencing a fresh action. 6.2 The respondent submits that the Court below did not set aside the Consent Judgment. As regards the joinder application, the same was not opposed by the appellant ,vho actually supported the joinder of the respondent to the proceedings. Nor did the 3rd appellant appeal against the Ex-tempore Ruling of 13th July joining the 3,·d respondent. Therefore, we cannot pronounce ourselves on the said ruling. Further, that the appellant is raising an issue not raised in the Court below as held in the J17 case ofMususu Kalenga Building Limited J. Richman Money Lenders Enterprisesl81. 6.3 In response to ground two, the contention that leave to issue the Writ of Possession was expressly given in the Consent Judgment entered into between the appellant and 1st and 2nd respondents, the position of the 3rd respondent is that this is a mere misapprehension of what the said clauses (iv) and (v) said. There is no mention of leave in the said provisions. 6.4 Order 45 Rule 3 of the RSC were cited on obtaining leave of Court to enforce a Judgment giving possession of any land. The contention by the respondent is that although a mortgagee in possession of a property does not require leave to issue a Writ of Possession, the manner the appellant instituted the proceedings created a unique situation mandating him to seek leave. 6. 5 The provisions of Order 88 Rule 5 of the RSC were cited particularly Rule 5(8) on occupiers, who must be given notice of the application and hearing date. The gist of the argument under this ground is that there is no material to demonstrate that the appellant complied with the requirements of Order 88 for service of proceedings on the respondent who was in 3rd actual possession of the property, to have enabled it to make any applications upon notification. The requirement for leave to give notice was not diluted. 6.6 In response to ground 3, assailing the holding of the Court below that the appellant did not give the 3rd respondent notice of proceedings as required by Order 45 RSC, the 3rd respondent submits that the Court ,vas on firm ground by holding that execution was irregular for lack of notice to it, being in actual possession of the subject property. 6. 7 The 3rd respondent went on to state that it had a first right of refusal to purchase the advertised property. No contract of sale ,vas done despite offering to purchase the property at USD 100.000.00 Instead the appellant levied distress on the subject property seizing goods and tools of trade exceeding ZMW 1,400.000. Hence, the Court below holding that the execution was irregular, excessive and ordering assessment. 6.8 Grounds 4, 5 and 6 were addressed together. The respondent submits that the appellant did not formulate any grounds of appeal on the question of a bona fide purchaser for value )19 without notice. This was merely raised in the Heads of Argument. Further that no contract of sale for the subject property to a third party was presented in the affidavit in opposition. The contract of sale dated 26th July 2023, was presented in subsequent proceedings. 6.9 On the 7th ,June 2023, the Learned trial Judge ordered a stay of sale of the 3rd respondents goods seized under warrant of distress and the sale of property. The said order is missing from the record of appeal (RoA). No evidence sho\vi.ng payment or acknowledgment of consideration was presented before Court. Therefore, the key elements of the protection of the doctrine of bonafide purchaser for value ,vithout notice are missing. Further, that the appellant is not the proper person to raise the defence of bona fide purchaser for value. As regards the cited case of Clementina Banda & Another v Bonface Mudimba, the same was said to be inapplicable. Our holding in the case of Moses Milambo (Administrator of the estate of Alfred Siandavu and Another v Florence H. Mweemba191 \Vas cited where we defined a bona fide purchaser for value without Notice. • J20 6.10 As regards the cited case of Josephine Kabwe v Dominic Kapasa, the respondent contends that it is cited out of context to the effect that the Court held that "there is no law that compels an unwilling person to sell his property to a sitting tenant" And that it is inapplicable to this matter because the appellant is bound by a voluntary agreement to recognise the 3rd respondent's right of first refusal. 6.11 In response to ground 8, challenging the applicability of Order 2 Rule 2 of the RSC as regards the issues of inordinate delay and waiving of the irregularity, the arguments are said to be based on misapprehension of the import of the provisions of the said order. The signing of a new lease agreement was not a step further. 6.12 The 3rd respondent cited the case of Tap Zambia Limited v Percy Limbusha and Others 1101 on irregular execution, setting aside and restoration of goods/money levied. That based on the above authorities, the High Court Judge has enforcement jurisdiction to set aside a Writ of possession irregularly issued, and to return such goods or property or in the alternative to • J21 compensate the Claimant. We were urged to uphold the judgment of the lower Court and dismiss the appeal 7.0 AT THE HEARING 7.1 The parties relied on the documents filed on record. 8.0 DECISION OF THE COURT 8.1 We have considered the appeal, the arguments advanced by learned counsel and the authorities cited. The facts not in issue are that a Consent Judgment dated 201h September 2022 was executed between the appellant and the 1st and 2nd respondents. The 1• 1 and 2nd respondent's defaulted on the terms under the Consent Judgment. Thereafter, the appellant issued a ~Tit of possession against the subject property pledged as collateral on 18th November 2022. The 3rd respondent applied to be joined to the proceedings post execution of the Consent Judgment. After being joined to the proceedings on 13th July 2023, the 3rd respondent alleged that the writ of possession was irregularly issued on the grounds that she ,vas not served ""°ith notice of the proceedings or the application for leave to issue the \\.Tit of possession. The 3rd respondent also alleged that the execution • J22 ♦ of the warrant of distress for rental arrears was irregular and excessive, as the goods seized exceeded the sum of Kl, 400,000. 8.2 In ground one, the appellant contends that the joinder of the 3rd respondent to the proceedings was improper, arguing that the 3rd respondent was challenging the Consent Judgment. The issue for determination in this ground is whether the 3rd respondent was improperly joined to the proceedings. Under Order 14 Rule 5 of the High Court Rules, Chapter 27 of the Laws of Zambia, as read together with Order 15 Rule 6 of the RSC, a party may be joined to proceedings if they demonstrate a sufficient interest in the matter. In this case, the 3rd respondent was a sitting tenant of the subject property, holding a right of first refusal under the lease agreement. This established a sufficient interest for her to be joined, as the execution of the Consent Judgment would directly affect her. In Ngoma & Others v LCM Company Limited & Another 1 111 , the Supreme Court affirmed that a party may be joined to proceedings even after the execution of a Consent Judgment. Therefore, we find no fault ·with the decision of the lower court to join the 3rd respondent to the suit. J23 8.3 The position of the law, as correctly stated by the appellant, is that a Consent Judgment can only be challenged by commencing a fresh action. In this instance, the 3rd respondent applied to set aside the execution of the writ of possession and warrant of distress for irregularity, and sought an order for assessment of damages arising from the irregular execution. A perusal of the 3rd respondent's application shows that it does not challenge the Consent Judgment itself. Instead, the 3rd respondent's contention relates to the execution of the writ of ' possession issued under the Consent Judgment. The argument by the appellant that the joining of the 3rd respondent to the proceedings made her a party to the Consent Judgment of the lo~er Court abrogated the principle of law on setting aside a Consent Judgment, is untenable. 8.4 We have purposefully not reproduced the appellant's arguments relating to ground two. This is simply because ground two has been couched as an argument contrary to the provisions of Order 10 Rule 9 (2) of the Court of Appeal Rul~s Statutory Instrument No. 65 of 2016, which states that: "A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of J24 the objection to the judgment appealed against, and shall specify the points of law or fact which are alleged to have been wrongly decided, such grounds to be numbered consecutively." 8.5 In our decision in Peter Mutale v Davies Mukumbwaf12l, we held that the grounds of appeal were irregular and incompetent as they contained narratives and were argumentative. Consequently, we did not consider the arguments presented, except for the points of law raised. Similarly, in this case, having found ground two incompetent, we will only consider the points of law raised therein. 8.6 In light of the foregoing, it is our view that the key issues for determination in the appeal are as follows: i) Whether the writ of possession was irregular, and; ii) Whether the Court erred in setting aside the warrant of distress 8. 7 Order 45 Rule 3(2) RSC on the enforcement of judgment on the possession of lands provides as follows: "A writ of possession to enforce a Judgment or order for the giving of possession of any land shall not be issued without the leave of the Court except where the judgment or order was given or made in a mortgage action to which Order 88 applies." J25 8.8 Order 45 Rule 3(2) RSC clearly stipulates that leave of the Court is required before obtaining a writ of possession. The record shows that this matter was commenced by Originating Summons, filed pursuant to Order 30 Rule 14 of the High Court Rules Chapter 27 of the Laws of Zambia. A review of the profit agreement between the appellant and the 1st and 2nd respondents shows that security for the investment was provided in the form of a deposit of the title deeds of the subject property with the appellant. This consequently created an equitable mortgage. The learned authors of Halsbury's Laws of England at Page 1 71 state that: "In equity a mortgage is created by a contract evidenced in writing for valuable consideration to execute, when required, a legal mortgage or by a contract so evidenced and for valuable consideration that certain property shall stand as a security for a certain sum." 8.9 Order 88 Rule lRSC was referred to by the 3rd respondent which provided follows: "(11 This Order applies to any action (whether begun by writ or originating summonsl by a mortgagee or mortgagor or by any person having the right to foreclose or redeem any mortgage, being an action in which there is a claim for any of the following reliefs, namely- (al payment of moneys secured by the mortgage, J26 (b) sale of the mortgaged property, (c) foreclosure, (d) delivery of possession (whether before or after foreclosure or without foreclosure) to the mortgagee by the mortgagor or by any other person who is or is alleged to be in possession of the property, (e) redemption, (f) reconveyance of the property or its release from the security, (g) delivery of possession by the mortgagee (2) In this Order "mortgage" includes a legal and an equitable mortgage and a legal and an equitable charge, and references to a mortgagor, a mortgagee and mortgaged property shall be construed accordingly." Rule 5 of Order 88 was cited on evidence in actions for possession or payment, which states that (1) The affidavit in support of the originating summons by which an action (other than an action to which rule SA applies) to which this rule applies is begun must comply with the following provisions of this rule. This rule applies to a mortgage action in the Chancery Davison begun by originating summons in which the plaintiff is the mortgage and claims delivery of possession or payment of moneys secured by the mortgage or both. (2) ... (2A) ... (3) .... J27 (4) Where the plaintiff claims delivery of possession the affidavit must- (a) Give particulars of every person who to the best of the plaintiff's knowledge is in possession of the mortgaged property; and (bl State, in the case of a dwelling house, whether- (i) a land charge of Class F has been registered, or a notice or caution registered under s.2 (7) of the Matrimonial Homes Act 1967 or a notice registered under section 2(8) of the Matrimonial Homes Act 1983 has been entered, and ifso, on whose behalf; and (ii) He has served notice of the proceedings on the person on whose behalf the land charge is registered or the notice or caution entered. 8.10 The rationale for seeking leave to issue a writ of possession is for the parties in possession of the property to apply to Court for any reliefs as provided under Order 45 Rule 3 (3) (a) RSC. We held this position in the case of LC & DK Limited (In Receivership) Angel Poultry Ltd v. Lovemore Chikuni Chinyama113 The explanatory notes under 45/3/6 RSC l. further explain why notice is required by stating as follows: J28 "Where the defendant is the only person in possession of the premises the plaintiff must give the defendant notice of the judgment or order, and call upon him to give up possession under the judgment or order. Where there are other persons (not parties to the proceedings) in actual possession it is also necessary to serve them with such written notice as will give them a reasonable opportunity of applying to the Court." 8.11 It therefore follows that giving notice of proceedings is required in cases where obtaining leave to issue a writ of possession is a prerequisite. The requirement for notice is linked to judicial oversight in instances where leave is mandated to ensure due process and protect the rights of affected parties. 8.12 In the particular circumstances of this case, there is a Consent Judgment in favour of the appellant against the 1st and 2nd respondent for payment of monies owed. The said Order provided for an "Order for foreclosure of subdivision V of Subdivision No 1 of Subdivision E of Farm No. 487a, Lusaka in the event of default on the 1st November 2022" and "an Order for delivery of possession of subdivision V of subdivision No.1 of Subdivision E of Farm No. 487a, Lusaka in the event of default on 1st November 2022". 8.13 Upon default, which is not disputed, the appellant issued a writ of possession. We are of the view that the Consent judgment provided for leave to issue a Writ of Possession in the event of J29 default. No leave was required to be again obtained from the Court by virtue of the Consent Judgment providing for possession in event of default. 8.14 Further, the appellant was not obligated to provide the 3rd respondent with notice of the proceedings. Instead, the responsibility to notify the 3rd respondent, who leased the subject property at the time of the mortgage action, rested with the 1st and 2nd respondents. Given the circumstances, this duty did not fall upon the appellant. 8.15 In our view, the Court below erred in concluding that the appellant was required to give the 3rd respondent notice of the proceedings as mandated under Order 45 RSC. The Court further erred in determining that the failure to provide such notice rendered the execution of the writ of possession irregular. 8.16 Although we have determined that notice of the proceedings to the 3rd respondent was not required, the question remains whether the issuance of the writ of possession was irregular. The record shows that the appellant and the 1st and 2nd respondents entered into a Consent Judgment dated 20th J30 September 2022. The Consent Judgment appearing at page 66 of the record of appeal stipulated in part as follows: "BY CONSENT of the parties, each acting through their respective advocates, it is HEREBY ADJUDGED as follows: (ii That an Order for Foreclosure of Subdivision V of Subdivision No.l of Subdivision E of Farm No. 487a Lusaka to issue in the event of default on 1st November (ii) That an Order for Delivery of Possession of Subdivision V of Subdivision No. l of Subdivision E of Farm No. 487a Lusaka to issue in the event of default on 1st November 2022 8.17 A reading of the Consent Judgment shows that it was adjudged that the order for foreclosure would be issued on 1st November 2022 in the event of default. The record, shows that the writ of possession was issued on 18th November 2022 in accordance with the Consent Judgment. It is trite that the terms of a Consent Judgment are agreed upon by the parties themselves, and in this case, it was agreed that in the event of default, an order for delivery and foreclosure would be issued on 1st November 2022. It therefore follows that the order for delivery and foreclosure could be issued any time from the 1st November 2022 as ordered by the Court in the Consent Judgment. The Consent Judgment of the Court remains valid; therefore, the J31 issuance of the writ of possession on a later date was not contrai:y to the Court's judgment. 8.18 The appellant was not required to seek leave to issue the v,rrit of possession, because leave was granted in accordance with the Court's Judgment. To recast, Order 45 Rule 3 (2) RSC provides that: "A writ of possession to enforce a Judgment or order for the giving of possession of any land shall not be issued without the leave of the Court except where the judgment or order was given or made in a mortgage action to which Order 88 applies." 8.19 Based on the above, the writ of possession ·was not irregular as it was issued in accordance with the Consent Judgment. 8.20 The regularity of the writ of possession entails that the appellant did lawfully acquire the property, does not affect the validity of the lease agreement between the appellant and the 3rd respondent. The relevance of the lease agreement's validity arises from one of the appellant's grievances on appeal namely, the contention that the lower Court erred in holding that the execution of the warrant of distress was \\.'rongful and irregular. 8.21 The appellant argued that the 3rd respondent was in rental arrears of USD 2,145.00 and, as a result, exercised his right ♦ J32 under the lease agreement as the landlord to levy distress for the unpaid rent. The appellant contended that the lower court erred in finding the execution excessive without first conducting an assessment of damages or a valuation of the properties sold at auction. The appellant's argument presents two key issues: first, \'V'hether the execution by way of distress over the 3rd respondent's goods was irregular, and second, whether it was excessive. 8.22 We will begin by addressing whether the execution \Vas irregular or wrongful. The 3rd respondent in the Court below contended that she occupied the subject property as a tenant and had the right of first refusal under the lease agreement. The 3rd respondent further contended that the appellant ought to have availed her vvith a contract of sale and not withheld the same while demanding the payment of rentals. She, therefore, sought an order for the return of the goods or property seized or payment of damages arising from the in·egular execution under the Sheriff's Act. The Court below found the execution by way of levying distress over the 3rd respondent's goods irregular, stating as follows: J33 "Further, he elected to enter into a lease agreement with the Claimant which agreement had a clause granting the Claimant a right of first refusal over the property. The Claimant has shown the Court a copy of her offer to buy the property after it was advertised per "AJS", whereas the Plaintiff has not shown the Court any reply thereto. He instead opted to levy distress months later. This execution is therefore wrongful and irregular." 8.23 In essence, the Court below found the execution of the warrant of distress wrongful and irregular because the appellant ignored the 3,·c, respondent's right of first refusal under the lease agreement. The lease agreement appears at page 86 of the record of appeal. Clause 13 contained the 3rd respondent's right of first refusal, and it was stipulated as follows; "The tenant is granted a right of first refusal in the event the tenant wishes to purchase the property from the landlord/ owner subject to and acceptable signed offer and agreement with the owner. Should a third party wish to purchase the premises, then the right of first refusal also applies, and the tenant has 14 days to match the offer of the purchaser on terms acceptable to the owner." 8.24 The clause above gave the 3,,; respondent a pre-emptive right over the purchase of the property. On pre-emptive rights in relation to lease agreements or contracts, the Supreme Court in Julika Enterprises and Others v Zambia State Insurance Corporation and Otherst14 held that: J34 "It is clear from a reading of the above excerpts that a right of pre-emption is not an automatic right but requires that there is a prior agreement or contract between the offeror and offeree, that should the landlord decide to dispose of the property by way of sale, the tenant will have the right of pre-emption before the property is offered to someone else to purchase." 8.25 Clause 13 of the lease agreement entailed that the appellant could not sell the property to a third party without first offering it to the 3rd respondent to purchase. The purchase of the subject property was, however, subject to an acceptable offer and agreement between them. The 3rd respondent averred in the Court below that the appellant advertised the subject property for sale on 31 January 2023 and that she immediately wrote •L to the appellant expressing her interest in purchasing the said property. The record shows that on 31•t January 2023, the 3rd respondent wrote to the appellant expressing her interest in purchasing the property for the sum ofUSD 100,000.00. 8.26 There is no evidence on the record that the appellant offered the property to the 3rd respondent to purchase as required under the lease agreement. Additionally, there is no evidence that the appellant responded to the 3rd respondent's offer, either by rejecting it or by inviting her to match an offer by a third party. J35 By failing to offer the 3rd respondent the opportunity to purchase the subject property, the appellant can be deemed to have breached the lease agreement. We will revert to this issue when we consider whether the appellant was obligated to give right of first refusal to a defaulting tenant. 8.27 Save to state that the failure to offer the property for sale to the 3rd respondent does not automatically invalidate the warrant of distress or render it irregular. 8.28 As previously stated, the appellant issued a warrant of distress for unpaid rentals in the sum of USO 2,145.00. The 31d respondent did not dispute the outstanding rental arrears. While an offer to purchase the property had been made, this did not absolve the 3rd respondent of her contractual obligations under the lease agreement. The duty to pay rent remained in effect unless the parties had expressly agreed to suspend it. In the absence of such an agreement, the pending offer had no bearing on the respondent's liability for rent. We accordingly find that the warrant of distress was properly issued and regular. J36 8.29 Turning to the issue of whether the execution ·was excessive, as determined by the Court belo\V, the appellant argues that this conclusion was reached without first assessing the value of the goods sold at auction. The appellant contends that, without such an assessment, it was improper for the Court to find that the goods levied exceeded the amount owed. 8.30 We have read the Ruling of the Court below and observe that the Court concluded that the execution by way of distress was in excess of the rent owed based solely on the 3rd respondent's affidavit evidence. The 3rd respondent availed the Court belo\v \Vith an inventory of the seized goods, specifying the value of each item. The goods were valued at over ZMW 1, 406, 962.00. The Court below noted that the appellant did not oppose the 3rd respondent's claim over the excessive execution. As a result, the Court below upheld the 3rd respondent's claim. 8.31 While the 3rd respondent asserted excessive execution and the appellant did not oppose the same, it would have been prudent for the Court to have referred the matter for assessment to determine the extent of the excess, if any. Such an assessment would have allowed the appellant to provide a full account of the • J37 goods seized and sold, as well as the amount realised from the auction. On the above basis, we find that the Court below erred by awarding the claim of Kl, 406,962.00. We accordingly order that the appellant renders an account before the Registrar of the High Court detailing the goods sold and the proceeds obtained for the Registrar to determine \Vhether the execution exceeded the amount of rent owed. 8.32 It is our finding that the writ of possession was not irregularly issued. Given our findings, we hereby set aside the a\vard by the Court below for damages for wrongful execution. Further, we find that the warrant of distress was regularly issued, and accordingly set aside the finding of the Court below that it was irregularly issued. Consequently, the order for damages for \\.TOngful distress is hereby set aside. 8.33 The appellant also contends that the Court erred by allowing the 3rd respondent back on the property. The Court, in its Ruling, found the appellant's opposition cryptic when it stated that the property had been sold. The Court stated that it understood the statement to be that the appellant sold the 3rd respondent's property to recover rental arrears and not the J38 actual sale of the mortgaged property. The statement referred to by the Court below in the affidavit in opposition reads in full as follows: "That further in the matter, possession was already granted to the Plaintiff and the sale of the said property was already conducted and hence the order to set aside the executions being sought by the claimant will be a nugatory exercise." 8.34 The appellant's response was to the 3n1 respondent's application to set aside the \'Vrit of possession on grounds of irregularity, as well as the execution of the warrant of distress over her property. The statement reproduced was the only statement in the affidavit opposing the executions referred to by the 3rd respondent. The response, therefore, suggests that he was addressing both the execution of the writ of possession and the warrant of distress. 8.35 Though, we concur with the lo,ver Court's finding that the property described as already sold referred to the seized goods, there was evidenced adduced that the property had been sold to a third party Dr. Mwilola lmakando. We refer to page 292 of the Record of Appeal. Therefore, the Learned Judge erred in la,I\T and fact by ordering that the 3rd respondent be allowed back on • • J39 the property and to exercise her right of first refusal to purchase the property. 8.36 The appellant argued that the 3rd respondent, having the right of first refusal, cannot invalidate the sale of the subject property to the third party, a bona fide purchaser for value without notice. We note that the appellant did not state that the property ,vas sold to a third party in the Court below. Only after the Ruling being appealed against did the appellant disclose in an application for a stay of execution that the property had been sold by exhibiting a contract of sale dated 26th July 2023. Simply put, there is no evidence to support the argument that the third party is a bona.fide purchaser for value ·without notice. Though, the issue of there being a bona fide purchaser for value was not placed before the Court below for it to make a determination on the matter, evidence was adduce of the sale. We hold that the Court below erroneously ordered the 3rd respondent back on the property. In Mumba v Lungul151 the , Supreme Court stated that: "Furthermore, we are loath to reverse a lower court based on the issue that the trial court has not ruled upon." • .. • .. J40 • 8.37 The 3rd Respondent defaulted on his obligations and as such we reverse the Court's decision allowing the 3rd respondent back on the property. The record shows that the 3rd respondent asserted her interest in the subject property and applied to be joined to the proceedings on 2nd June 2023. She was subsequently joined on 131h July 2023. The record also shows that on 26th July 2023, the appellant proceeded to execute a contract of sale with Mwilola Imakando for the subject property, even though the 3rd respondent had already been joined to the proceedings and had asserted her interest in the property. The position we take is that, having defaulted on its rental obligations, the appellant was not obligated to offer the defaulter the right of first refusal. 8.38 The 3rd respondent offered the appellant USO 100,000.00 to purchase the property, but the appellant proceeded to sell the property to a third party for a lower amount of USO 80,000.00, as reflected in the contract of sale. In our view, this at most can merely entitle the 3rd respondent to damages for breach of contract, had the position been that she was entitled to right of first refusal despite her default in rentals. A position we do not hold. • J41 8.39 For the avoidance of doubt, our findings arc as follo\vs: ") The writ of possession was neither irregularly issued nor 1, in contradiction of the Consent Judgment dated 20th September 2022. The order of Court below holding that the Writ of possession was irregularly issued is set aside. ii) The order awarding damages for wrongful execution is hereby set aside; iii) The matter is hereby referred to Registrar of the High Court for assessment and determination of whether the value of the 3rd respondent's goods levied by the appellant was in excess of the rent arrears of USO 2,145.00. The amount found in excess to be refunded with interest from date of writ to date of judgment at the Bank of Zambia short term deposit rate. iv) The order awarding damages for wrongful distress is set aside. v) The 3rd respondent has no right to be allowed back on the property. The holding to that effect by the lower Court is set aside as she cannot exercise her right of first refusal to purchase the property. a J42 • 9.0 CONCLUSION 9.1 The appeal having substantially succeeded, costs to the appellant in the Court below and on appeal, to be taxed in default of agreement. , I I ~ •I♦•♦♦♦♦♦••♦• I 61 ♦II♦ I♦♦♦♦ ♦ •♦ ♦♦♦♦I♦ ♦I♦ I♦ ♦6 ♦I♦ I♦♦♦ M. J. Siavwapa JUDGE PRESIDENT ~ -········································ F.M. Chishimba A.N Patel S.C COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE