Nyendwa v Nyendwa and Ors (CAZ 8 118 of 2016) [2017] ZMCA 147 (18 January 2017)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/0S/118/2016 HOLDEN AT LUSAKA It m I ROSANNA MARY NYENDWA NICHOLAS MISCHECK NYENDWA JEFFERY NYENDWA KALINDA ELLA NYENDWA ELLANT 1st RESPONDENT 2nd RESPONDENT RESPONDENT 4th RESPONDENT Before the Hon. Mr. Justice Justin Chashi in Chambers on 18th day of January 2017 For the Appellant: For the 1st Respondent: CL Mundia, SC and C Mundia, Jnr Messrs, CL Mundia and Company J. Madaika and IM Lifunana, Messrs J & M Advocates For the 2nd and 3rd and 4th Respondents:N/A RULING Legislation referred to: 1. The Court of Appeal Act, Act No. 7 of 2016 On 20th December 2016, the Appellant filed an application for an Order to stay Consent Order pursuant to Order 7 Rule 1 (1) of The Court of Appeal Rules 2016 (CAR)* 1. On the 21st of December 2016, I did grant the Appellant an ex parte Order of stay of -R2- execution pending the inter parte hearing. On 9th January 2017 before the inter parte hearing of the Appellants application, the 1st Respondent filed a Notice of Motion for an Order of discharge of the ex parte Order of execution which I had granted on the grounds that it was obtained in excess of jurisdiction and in contravention of CAR1. At the inter parte hearing on 12th January 2017, both Counsel for the Appellant informally raised preliminary issues which bordered on description of this Court by the 1st Respondent as well as to the Advocates for the 1st Respondent, the firm of J & M Advocates being conflicted in this matter. For reasons which are obvious and on which I will elaborate hereunder, I decline to dwell on both the Notice of Motion by the 1st Respondent as well as the issues raised by the Appellants. A perusal of the record shows that the Appellant filed a Notice of Appeal on 19th December 2016 appealing against the Ruling of Siavwapa, J in Cause No. 2002/HP/D0087. -R3- According to the accompanying Memorandum of Appeal, the sole ground of appeal is that the Court below erred in both law and fact when it ruled that the Appellant’s application for an Order to stay execution of Consent Order in Cause No. 2002/HP/D0087 contained no grounds upon which the Court could stay or set aside the Consent Order. From the contents of the Notice of Appeal and the Memorandum of Appeal, it is evidently clear that the issue of stay of execution is subject of an appeal to the Court of Appeal. Section 9 of the Court of Appeal Act, 2016 states in part as follows: “A single Judge of the Court may exercise a power vested in the Court not involving the decision of an appeal.......” Since the application before me as a single Judge involves the decision of an appeal, I have no powers to adjudicate over the same. The application is therefore wrongly before this Court as I have no jurisdiction to entertain the same. -R4- The application is accordingly dismissed and the ex parte Order for stay of execution which I earlier granted is discharged. Costs to the 1st Respondent. Same are to be taxed in default of agreement. Delivered this 18th day of January 2017. COURT OF APPEAL JUDGE