Chungu v Chanda and Ors (Appeal 23 of 2022) [2023] ZMCA 8 (10 February 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPLICATION NO. HOLDEN AT LUSAKA SP 23/2022 (Civil Jurisdiction) BETWEEN: AARON CHUNGU AND PETER CHANDA WRIGHT MUSOMA OTHER UNKNOWN PERSONS ATTORNEY GENERAL SHARON MWENGE MWANSA BENJAMIN MWANGALA KABANDA MOFFAT LUNGU MARVIN MATUNGA BUPE MULENGA TAPIWA MSUSA APPELLANT 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT 4th RESPONDENT 5th RESPONDENT 6th RESPONDENT 7™ RESPONDENT 8th RESPONDENT 9th RESPONDENT 10th respondent CORAM: Ohashi, Ngulube and Muzenga, JJA ON: 1st February and 10th February 2023 For the Applicant: P. Songolo, Messrs Philsong & Partners For the 1st , 2nd and 3rd Respondents: B. Mukatuka, Messrs Robson Malipenga & Co For the 4 Respondent: N/A -R 2- For the 5th, 6th,7th,8th,9th and 10th Respondents: N. Banda (Ms) Messrs Ganje Mhango and Company RULING CHASHI JA, delivered the Ruling of the Court. Cases referred to: 1. Savenda Management Services v Stanbic Bank Zambia Limited - SCZ Selected Judgment No 10 of 2018 2. Bidvest Food Zambia Limited & 4 Others v CAA Import and Export Limited - SCZ Appeal No 56 of 2017 3. Polythene Products Zambia Limited v Cyclone Hardware and Construction Limited and the Attorney General (2012) ZR, Vol 3, 396 4. Faramco Limited v Camel Freight Limited & 4 Others - SCZ Appeal No, 136 of 2016 Legislation referred to: 1. The Lands Act, Chapter 184 of the Laws of Zambia 2, The Court of Appeal Act, No, 7 of 2016 3, The Supreme Court Act, Chapter 25 of the Laws of Zambia -R3- Rules referred to: 1. The Supreme Court Rules, Chapter 25 of the Laws of Zambia 1 .0 INTRODUCTION 1.1 In our Judgment delivered on 20th May 2022, we dismissed the appeal (No. 273 of 2021) for lack of merit. In the said Judgment, we took the view that Section 13 (3) of The Lands Act1, ousts the jurisdiction of the High Court in respect to challenging re-entry. 1.2 The Applicant who was the Appellant in the main appeal has now moved this Court for an Order for leave to appeal to the Supreme Court against our Judgment. The application has been made pursuant to Section 13 of The Court of Appeal Act2 and Rule 51 of The Supreme Court Rules3 and is supported by an affidavit and skeleton arguments. Attendant to this application is an application for stay of execution of the Judgment. -R4- 2 .0 ARGUMENTS IN SUPPORT OF THE MOTION 2.1 According to the Applicant, the intended five (5) grounds of appeal as encapsulated in the summons, raises points of law of public importance and have reasonable prospects of success. Our attention was in that respect drawn to the Supreme Court cases of Savenda Management Services v Stanbic Bank Zambia Limited1 and Bidvest Food Zambia Limited & 4 Others v CAA Import and Export Limited2 on when a point of law of public importance arises and on reasonable prospects of appeal. 2.2 The gist of the Applicant’s contention is that, the Court of Appeal erred in relying on the earlier Supreme Court case of Polythene Products Zambia Limited v Cyclone Hardware and Construction Limited and the Attorney General3 as opposed to their latest decision in the case of Faramco Limited v Camel Freight Limited & 4 Others4 and thereby in the process upsetting the entrenched principle of stare decisis. 2.3 The Applicant at the hearing of the motion through Counsel, submitted that, he has demonstrated how the -R 5- intended appeal raises points of law of public importance which will not only be of benefit to the parties to this proceedings but to the public in general as well as to enrich the jurisprudence on matters involving re-entry 3 .0 1st, 2nd AND 3rd RESPONDENTS ARGUMENTS IN RESPONSE 3.1 Mr. Mukatuka as of Counsel, informed the Court that they had no opportunity to file an affidavit in opposition and arguments as they were not served with the process by the Applicant. On that basis, we allowed him to address the Court viva voce. 3.2 He briefly submitted that the requirements under Section 13 CAA and Section 34 of The Supreme Court Act3 have not been met by the Applicant as the Applicant has neither shown that there is a point of law of public importance nor that the intended appeal has reasonable prospects of success. 4 .0 5th - 10th RESPONDENTS ARGUMENTS IN RESPONSE 4.1 Counsel for the 5th - 10th Respondents relied on the written arguments and submitted that the Polythene case is distinguishable from the Faramco, in that in the latter -R 6- case, the main relief which was being sought was a declaration that the plaintiff was the registered owner of the property and not challenging re-entry. According to Counsel, there is no novel issue of public importance for the Supreme Court to deal with. 4.2 It was further argued that the intended appeal has no reasonable prospects of success as this Court’s decision cannot be faulted as it resolved all issues which were raised by the Appellant. That therefore, the Applicant has not satisfied the requirements of Section 13 (3) CAA and the rationale in the Savenda and Bidvest cases. 5 .0 OUR DECISION 5.1 We have considered the motion and the arguments by the parties. We are of the view that the Applicant has demonstrated that there is a point of law of public importance which has been raised through the intended grounds of appeal. 5.2 This in our view is a proper case for granting the Applicant leave to appeal to the Supreme Court to enable the Supreme Court re-affirm its position on the jurisdiction of -R 7- the Land Tribunal and the High Court in respect to Section 13 (3) of The Lands Act; especially in view of the Polythene and Faramco cases 5.3 As regards the attendant application for stay of execution, the same is refused as we note that the same was granted by a single Judge of this Court pending appeal and it has not yet been discharged. 5.4 In the view that we have taken, leave to appeal to the Supreme Court is accordingly granted. Costs to abide the outcome of the appeal. / (/ J. OHASHI COURT OF APPEAL JUDGE P. C. M. NGULUBE K. MUZENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE