Osick Chilembo and 358 Ors v Elizabeth Catherine Cooke (Suing as both Executrix and Beneficiary of the estate of the late Elizabeth Catherine Swanepoel) and Ors (CAZ/8/347/2019) [2019] ZMCA 396 (16 December 2019)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/8/347/2019 Rl HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: OSICK CHILEMBO AND 358 OTHERS ANTS AND ELIZABETH CATHERINE COOKE (Suing as both Executrix and B e neficiary of the estate of the late Elizabe th Cathe rine Swanepoe~ 1 ST RESPONDENT HOWARD COOKE 2ND RESPONDENT PETER ANDRIES SWANEPOEL 3 RD RESPONDENT HUGO WILLEM JACOBS 4 T H RESPONDENT ATTORNEY GENERAL 5TH RESPONDENT KAFUE DISTRICT COUNCIL 6 T H RESPONDENT Before: The Honourable Mrs. Justice PCM Ngulube, JA. For the Appellants : Mr. G. M. Kaulu n g'ombe, Ma rs h a ll Chambe rs. For the Respondents: Mr. R. Malipenga, Messrs. R. Malipenga a nd Company, Mr. Nzonzo, Messrs SLM Legal Practitioners RULING Cases referred t o: 1. 2. 3. Linotype - Hell Finance Limited vs Bak er (1992) 4 All ER 887 Sonny Mu lenga and Vismer Mulenga and Chainama Hotel Limited and Elephant Head Hotel Limited, SCZ Judgment Number 15 of 1999 Zambia Revenue Authority vs Jayesh Shah, SCZ Judgment Number 10 of 2001 Legislation referred to: R2 1. 2. Court of Appeal Rules, Statutory Instrument Number 65 of 2016 The Rules of the Supreme Court, 1999 Edition INTRODUCTION 1.1 This is the Applicant's renewed application for an order of Stay of Execution of the Judgment dated 1st November, 2019, pending the hearing and determination of the Appeal pursuant to Order X Rule 5 of the Court of Appeal Rules 1 as well as Order 59 Rule 13 / 1 of the Rules of the Supreme Court of England, ( 1999) Edition2 . 2.0 BRIEF BACKGROUND 2.1 A brief background of the matter is that on 24 th January, 2007, the respondents commenced an action by writ of summons seeking a declaratory order that the respondents, who were the plaintiffs in the lower court are the legal owners of the farms numbered 1958/A, 1958/B and 1958/C, Lusaka, measuring an area of 1654.1475 hectare s. 2.2 The respondents also sought an order for vacant possession of any of the three pieces of land that the appellants or their R3 agents were occupying, forming part of the aforementioned farms 1958/ A, 1958/B and 1958/C, respectively. 2.3 The respondents sought damages and compensation for inconvenience caused and loss of use of the land as well as compensation for the damage caused to the land by cutting down valuable trees and for trespass. They further sought an order of injunction against the appellants to restrain them from interfering with the respondents' quiet enjoyment of farms number 1958/A, 1958/Band 1958/Cor having the said land allocated to other persons. 2 .4 The matter proceeded to trial and the 2 nd respondent testified on behalf of all the respondents. The court found that the respondents demonstrated actual possession of the subject land as the certificates of title are held under their names and further found that the respondents proved, on a balance of probabilities, that they are lawful holders of certificates of title relating to farms number 1958/A, 1958/B and 1958/C, respectively. 2.5 The court went on to grant the respondents an order of vacant possession of the said pieces of land and awarded the R4 respondents damages for trespass against the appellants. The court then granted the appellants leave to appeal. On 25 th November, 2019, the lower court refused to grant the appellants an order for stay of execution of the Judgment. 2.6 The appellants then sought an ex-parte order for stay of execution from this court which was granted on 29th November, 2019. The inter-parte hearing was scheduled for the 10th December, 2019. At hearing, Mr. Kaulung'ombe on behalf of the appellants submitted that he would rely on the affidavit in support that was filed on 29th November, 2019 as well as the affidavit in reply that was filed on 10th December, 2019. He further submitted that he would rely on the written submissions that were filed in support of the application for stay of execution. 2.7 In the affidavit in support sworn by Gaston Tembo, one of the appellants, he averred that the appellants were dissatisfied with the lower court's refusal to grant an order of stay of execution, hence the application before this court. The deponent further averred that if the order for stay of execution RS 1s n ot granted, the respondent's will proceed to enforce the Judgment and render the appeal a mere academic exercise. 2.8 The deponent averred that the appellants have m ade tremendous construction on Farm F / 1958 with the legal approval of the Kafue District Council and the Commissioner of Lands. He reiterated his fear that if the stay of execution is n ot granted, the appellants' properties will be demolished, rendering the appeal academic. 2.9 In their submissions in support of the application, the appellants referred to the cas es of Linotype - Hell Finance Limited vs Baker 1 where the court stated that - "It seems to me that if a defendant can say that without a stay of execution he will be ruined and that he has an appeal which has some prospects of success that is a legitimate ground for gr-anting a stay. " The appellants further referred to the case of Sonny Mulenga and Vismer Mulenga and Chainama Hotel Limited and Elephant Head Hotel Limited,2 where the court held inter alia that- R6 " ... in exercising its discretion whether to grant a . stay or not, the court is entitled to preview the prospects of the proposed appeal. " The appellants also referred to the case of Zambia Revenue Authority vs Jayesh Shah, 3 where the court stated that - "cases should be decided on thei.r substance and merit" The appellants further submitted that the stay of execution will not prejudice the respondents as title holders. Mr. Nzonzo, on behalf of the respondents opposed the application and relied on the affidavit in opposition filed on 6 th December, 2019 deposed to by Elizabeth Catherine Cooke. He also relied on exhibit "GTl", the Judgment of the lower court. Mr. Nzonzo submitted that in considering the application, the court is entitled to preview the Judgment and the Ruling of the lower court which demonstrate that the prospects of success on appeal are low. Mrs. Elizabeth Catherine Cooke averred that the properties in question are subject of certificates of title exhibited and marked "ECCl " ' "ECC2 " and "ECC3" ' respectively. Mrs . Cooke further stated that the Attorney - R7 General and the Kafue District Council did not support the appellants' case in the lower court. 2.10 Mr. Malipenga, co-counsel for the respondents submitted that the appellants, in their affidavit in reply have introduced exhibits which bring in new evidence. He submitted that the lower court found in favour of the respondents as the appellants lamentably failed to def end the matter in the lower court and that exhibit "GT8 '', the "presidential caveat report" document is a new piece of evidence which was not produced in the lower court. He contended that it is not dated, has no author and is not a government document. 2.11 Mr. Malipenga submitted that the appellants failed to produce a letter of offer or a title deed proving their ownership of the said land. He accordingly prayed that the application for stay of execution be dismissed for lack of merit, with costs. 3.0 MYVIEW 3.1 I have carefully read and considered the affidavits and submissions on record as well as the Judgment of the lower court. R8 3.2 In an application for stay of execution pending appeal, the considerations are the prospects of the appeal succeeding and the irreparable damage if a stay is not granted in the event the appellants' appeal succeeds. 3.3 The fact that a party has exercised his or her right to appeal to a higher court does not mean that the Judgment appealed against must be stayed, I refer to Order 59, Rule 13 of the Rules of the Supreme Court in this regard. 3.4 The appellant must also show special circumstances in favour of granting a stay. At the end of the day, the question whether or not to grant a stay is in the discretion of the court and each case must be assessed on its facts and merits. 3.6 Having read the appellants' affidavits , submissions and exhibits, and considering the Judgment of the lower court, I am not persuaded to exercise my discretion in favor of the appellants by granting them an order for stay of execution. 3.7 Order 59/ 13 of the Rules of the Supreme Court is that an appeal does not operate as a stay and the court does not make a practice of depriving a successful litigant of fruits of his litigation. 3.8 I have deliberately opted not to put a Judgment on the R9 grounds of appeal set out in the memorandum of appeal. I am however of the view that the appellant has n ot shown any special circumstances to warrant the granting of an ord er for stay of execution pending appeal to this court. 3.9 In the circumstances, the application for stay of execution is d ismissed with costs to the respondents. Consequently, the exparte order for stay of execu tion that was granted on 29 th November, 2019 is discharged. Dated this 16t h day of December, 2019. HONOURABLE MRS JUSTICE P. C. M. NGULUBE COURT OF APPEAL JUDGE