Musonda Lemba (Suing as the Administrator of the Estate of the late Winter D. Lemba) v Nobert Mfuni and Ors (2009/HP/778) (20 September 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2009/HP/778 AT THE PRINCIPAL REGISTRY HOLDED AT LUSAKA (Civil Jurisdiction) BETWEEN MUSONDA LEMBA (Suing as the Administrator of the Estate of the late Win PLAINTIFF AND NOBERT MFUNI 1 DEFENDANT ST HENRY MBUSHI 2ND DEFENDANT COMMISSIONER OF LANDS 3RD DEFENDANT ATTORNEY GENERAL 4TH DEFENDANT Before Hon. Mrs. Justice S.M. Wanjelani in Chambers on the 20th September, 2024. For the Plaintiff· Not Applicable For the Defendants: Not Applicable COMBINED RULING ON APPLICATIONS FOR LEAVE TO APPEAL AND STAY EXECUTION OF JUDGMENT Cases referred to: 1. Status Mineral Exploration Limited v Ocean Ore Limited and Another (HPC 174 OF 2012) [201 3] ZMHC 38; 2. Finance Bank Zambia v Dimitrios Monokandilos Filandria Kouri (2012) 1 Z.R. 484; 3. Sonny Mulenga and Vismer Mulenga, Chainama Hotels and Elephants Head Hotel Limited V Investtrust Merchant Bank S. C.Z Judgment No. 15 of 1999; 4. Watson Nkandu Bawa v Fred Mubiana and Zesco, Selected Judgment No. 2 of 2012; 5. Wilson v Church (no. 2) [1879] 12 Ch D. 454 CA; and Rl .. 6. Newplast Industries V Commissioner of Lands (2001) ZR 51. Legislation referred to: 1. The Court ofA ppeal Act No. 7 of2 016 Statutory Instrument No. 65 of2016; 2. The High Court Rules) Chapter 27 of the Laws ofZ ambia)· and 3. The Rules of the Supreme Court of England 1965 (White Book) 1999 Edition. 1. INTRODUCTION. 1.1 This is a combined Ru ling on the 1st Defendant's Ex parte applications for an Order for Leave to appeal to the Court of Appeal; and to Stay Execution of the Judgment dated 12th September, 2024. 1.2 The Summons for Leave was taken out pursuant to Order 10 Rule 4(5) of the Court of Appeal Act Statutory Instrument No. 65 of 2016 as read with Order 3 Rule 2 of the High Court Rules and Order 59 Rule 14(18) of the Rules of the Supreme Court of England. 1.3 And the Summons for Stay of Execution was made pursuant to Order 36 Rule 10 of the High Court Rules as read together with Order 10 Rule 5 of the Court of Appeal Rules. 1.4 The Summonses were accompanied by Skeleton Arguments and Lists of Authorities. 2 . BACKGROUND 2.1 The Plaintiff commenced this Matter against the Defendants on 19th June, 2009, and subsequently R2 amend his Writ of Summons and Statement of Claim on 31st March, 201 7, seeking various reliefs including, an Order for specific performance as against the 2nd Defendant; a declaration that the late Winter D. Lemba was the rightful/ equitable/legal owner of 7 Acres fraudulently assigned/parcelled out to the 1st Defendant; and an Order for rectification of the Register at the Lands and Deeds Registry, as well as damages for loss of use of the subject land. 2.2 In a Judgment dated 12th September, 2024, this Court found that the Plaintiff had proved some of his claims and ordered, inter alia, that the Certificates of Title in relation to Lot No. 2188/M, Lusaka, be cancelled due to fraudulent misrepresentation; and that the Plaintiff be issued a Certificate of Title on behalf of the Estate of the late Winter D. Lemba for the 7 Acres while a separate Certificate Title should be issued to the 1st Defendant for 3 Acres only. 2.3 It is this Judgment that is subject of these applications. 3. AFFIDAVITS IN SUPPORT OF THE SUMMONSES AND SKELETON ARGUMENTS 3.1 The Affidavits in Support of both Summonses were deposed to by the 1st Defendant, Nobert Mfuni, whose averments in both were similar and shall not be reproduced separately. He deposed to the genesis of the matter and produced the Writ of Summons and Amended Statement of Claim, as R3 exhibits "NMl-2". He also referred to the Orders of the Court in th e subject Judgment. 3 .2 The Deponent averred that being dissatisfied with the Judgment of this Court, he intends to appeal again st the said Judgment and to this end, he exhibited the "Notice" and "Memorandum of Appeal" to the Court of Appeal, collectively marked "NM-3". 3.3 He added that h e verily believes that the Appeal has high prospects of success as demonstrated in his Grounds of Appeal which he listed. He further avowed that if the Stay of Execution is not granted, the Appeal in the Court of Appeal would be rendered nugatory and an academic exercise. 3.4 In the Skeleton Arguments, with respect to the Leave to Appeal, Counsel submitted that it is trite that Leave to Appeal must be sought where the Court has not granted it. 3.5 Reference was made to Order 59 Rule 14(18) Rules of the Supreme Court (RSC) which provides that an application for leave to appeal can be granted where the prospects of that appeal succeeding are high. He further cited the case of Status Mineral Exploration Limited v Ocean Ore Limited and Another(l) for the position that Leave to appeal is not granted as a general rule and that the Applicant must show that the grounds of appeal have realistic prospects of success. R4 3.6 It was argued that the Deponent of the Affidavit in support of this application indicated that the grounds of appeal he intends advancing have a realistic prospects of success and has argued that, prima facie, the intended appeal has merit. 3.7 Counsel contended that given the above, the 1st Defendant knocks on the doors of justice in this matter and wishes that the Court should not shut those doors, citing the words of Justice Dr. Matibini SC, (as he then was) in the case of Finance Bank Zambia v Dimitrios Monokandilos Filandria Kouri(2 as follows: ) " ... the doors ofj ustice should not be shut without giving the Respondents an opportunity to press on their case and conclude it on its merits". 3.8 In relation to the application for Stay of Execution, Order 10 Rule 5 of the Court of Appeal Rules, the cases of Sonny Mulenga and Vismer Mulenga, Chainama Hotels and Elephants Head Hotel Limited V Investtrust Merchant Bank(3 ) and Watson Nkandu Bowa v Fred Mubiana and Zesco14 were cited for the position that an Appeal ), does not operate as a Stay of execution. 3.9 It was submitted that the rationale for Stay of Execution pending appeal lies in what was stated in the acclaimed case of Wilson v Churchl5 to the ) RS effect that Stays are necessary so as not to prevent an appeal, if successful, from being nugatory. 3.10 It was contended that denying the Applicant herein a Stay of Execution of the subject Judgment would render the Appeal nugatory more so that the Applicant stands to be ruined given that the Judgment prejudices him. It was submitted that there is a likelihood of the 1 Defendant st succeeding at appeal considering that the 2nd Defendant made contradictory statements with regards to the payments made to him by the 1st Defendant for the Property and for the Subdivision. 4 CONSIDERATION AND DECISION OF THIS COURT 4.1 Considering the subject matter of the applications and the averments in the Affidavits in Support, this Court decided to determine the applications based on the Affidavits with their exhibits and the Skeleton Arguments as well as the relevant principles regarding the granting of Leave to Appeal and to Stay of Execution. The dispensation with the oral hearing is fortified by the Supreme Court holding in the case of Newplast Industries V Commissioner of Lands16 where it ) was stated that: "The content of what amounts to the hearing of the parties in any proceedings can take either the form of oral or written R6 evi.dence. Where the evi.dence in support of an application is by way of affidavit, the deponent cannot be heard to say that he was denied the right of hearing simply because he had not adduced oral evidence." 4.2 I have considered the purpose of granting Leave to appeal which was aptly captured by Mr. Justice N. Mutuna, High Court Judge then, in the case cited by Counsel, of Status Mineral Exploration Limited v Ocean Ore Limited and Another(l) when he observed as follows: "--- leave will be granted as a general rule, except where the grounds of appeal have no realistic chances of success. As such, in making an application for leave to appeal an applicant must demonstrate to the Court that the grounds he has advanced or intends to advance, have a realistic chance of success. This in my considered opinion, is for the purpose of ensuring that only those matters that are deservi.ng of an appeal go on appeal." 4.3 This is the position alluded to in Order 59/14/18 of the Rules of the Supreme Court, also cited by Counsel, as follows: "The general test which the Court applies in deciding whether or not to grant leave R7 to appeal is this: leave will normally be granted unless the grounds of appeal have no realistic prospect of success. The Court of Appeal may also grant leave if the question is one of general principle, decided for the first time or a question of importance upon which further argument and a decision of the Court of appeal would be to the public advantage." 4.4 While it is not my duty to delve into the merits of the Appeal, I am enjoined to assess the chances of the Appeal succeeding as guided by the above referred to authorities. Thus, I have perused the Judgment dated 12th September, 2024 and I have also examined the intended Grounds of Appeal in the draft "Memorandum of Appeal" in the exhibit marked "NM-3", which the Plaintiff intends to file. 4.5 It is mv considered view that the said Grounds of ., Appeal do not reveal any realistic prospects of succeeding in view of the facts of the case, the evidence adduced, the authorities and reasoning in the impugned Judgment. Further the 1 st Defendant has not advanced any other compelling reasons for Leave to be granted. 4.6 The Plaintiff has also sought to Stay Execution of the Judgment on the ground that the Judgment rendered by this Court prejudices him and that as there are high chances of the appeal succeeding, R8 the Appeal will be rendered nugatory and an academic exercise, if the Stay is not granted. 4 .7 In my view, the same principles that apply when considering an application for Leave to appeal, apply in determining an application to Stay execution of Judgment or Ruling. Given my fmdings herein, it is my view that the 1st Defendant has failed to advance sufficient grou nds to warrant this Court to grant the Stay of Execution being sought. 4.8 For the foregoing reasons and based on the cited authorities, I decline to grant the Leave to Appeal and to Stay execution of the Judgment dated 12th September, 2024. Delivered at Lusaka this 20th day of September, 2024. • ••••••••••••••••• s. M. NJELANI I J DGE R9