Shupiwe Ruth Ngoma v Martha Nondo (Suing as Administratrix of the Estate of the late Sesilia Sakeyo) (APPLICATION 30/2025; CAZ/08/236/2024) [2025] ZMCA 158 (7 November 2025)

THE COURT OF APPEAL OF ZAMBIA APPLICATION 30/2025 HOLDEN AT LUSAKA ( Civil Jurisdiction) CAZ/08/236/2024 BETWEEN: SHUPIWE RUTH NGOMA APPLICANT AND - 0 7 NOV 2025 C1 \IL r ...... MARTHA NONDO (Suing as Administratrix of the Estate of the late Sesilia Sakeyo) RESPONDENT Coram: Chashi, Makungu and Banda-Bobo, JJA On 21 st May, 2025 and 7th November, 2025 For the Applicant: Mr. 0. Mudenda of Messrs. Dindi & Co. For the Respondent: Miss C. Shamakamba of Messrs. Shamakamba & Associates. RULING MAKUNGU JA, delivered the ruling of the Court. Cases Referred to: 1. Linotype-Hell Finance Ltd v. Baker [1992] 4 All ER 887 2. Nyampala Safaris and Four Others v. Zambia Wildlife Authority and Six Others (2004) Z. R 49 3. Sonny Paul Mulenga and Others v. Investrust Merchant Bank Limited (1999) Z. R 101 4. Anuj Kumar Rathi Krishna v. The People - SCZ Judgment No. 9 of 2011 5. Mwenya and Randee v. Kapinga - SCZ Judgment No. 4 of 1998 Legislation Referred to: 1. The Court of Appeal Act No. 7 of 2016 2. The Court of Appeal Rules, SI No. 65 of 2016 1.0 INTRODUCTION 1. 1 This is an application to vary, discharge, or reverse the ruling of a single Judge of this Court delivered on 31st March 2025, refusing to grant the applicant a stay of execution of the judgment of the Ndola High Court, dated 15th May 2024 pending appeal. 1.2 The impugned High Court judgment ordered, inter alia, that the Ndola City Council demolish all structures erected on Plot No. 14163, Hillcrest Extension, N dola, and that vacant possession of the said property be given to the respondent. 1. 3 The application is made pursuant to section 9(b) of the Court of Appeal Act, and Order 10 Rule 2(8) and (10) of the Court of Appeal Rules. 2.0 BACKGROUND 2. 1 The applicant obtained a Certificate of Title No. 60569 over Plot No. 14163, Hillcrest Extension, Ndola, following h er purchase of the property from one Davy Kabwe. 2.2 The respondent, as administratrix of the estate of her late mother, Sesilia Sakeyo, challenged the title, asserting that the property had been offered to her mother before its purported sale to Kabwe. That despite being aware of the respondent's claim and several stop orders from Ndola City Council, the -R2- applicant proceeded with construction, prompting the respondent to commence proceedings in the High Court seeking cancellation of the applicant's title and recovery of possess10n. 3 .0 DECISION OF THE HIGH COURT 3.1 Upon examining the evidence on record, the trial court found that the property had initially been offered to the late Sesilia Sakeyo in 2013 and that the subsequent offer and Certificate of Title issued to Davy Kabwe in 2019 were invalid. Further, the transaction between Davy Kabwe and the applicant was tainted as Davy Kabwe failed to obtain the state's consent to assign, as required under section 5 ( 1) of the Lands Act. 3.2 The Court held that the applicant's title was defective and ordered that the property reverts to the respondent, directing the Ndola City Council to demolish all structures on the land and grant vacant possession to the respondent. 4.0 AFFIDAVIT IN SUPPORT OF THE APPLICATION BEFORE THIS COURT. 4 . 1 The affidavit in support of the application was sworn by Shupiwe Ruth Ngoma, the applicant herein. She deposed that following the Ndola High Court judgment of 15th May 2024, she filed an appeal against the decision. She stated that -R3- although a single Judge of this Court initially granted an ex parte stay of execution, the order was discharged after an inter partes hearing on 31 s t March 2025. 4.2 She further deposed that the learned single Judge only addressed the issue of whether she was a bona fide purchaser, without considering other pertinent factors such as her six year occupation of the property and the hardship that demolition and eviction would cause. She maintained that her appeal has high prospects of success and urged this Court to vary the decision and grant the stay. 5.0 SKELETON ARGUMENTS IN SUPPORT 5.1 In the supporting arguments, counsel for the applicant submitted that the grounds of appeal raise substantial issues showing that the High Court's findings were contrary to the evidence on record. He further argued that the single Judge of this Court overlooked these grounds and that the appeal has reasonable prospects of success. 5.2 Counsel further contended that failure to grant a stay would result in the applicant's eviction and demolition of her home, thereby rendering the appeal nugatory. Reliance was placed on the case of Linotype-Hell Finance Ltd v Baker1 , which affirms that a stay may be granted to an unsuccessful -R4- defendant where refusal would ruin him and the appeal has merit. 5.3 We were therefore urged to vary the ruling of the single Judge and to grant a stay of execution pending appeal. 6.0 GROUND OF APPEAL 6.1 The grounds of appeal as stated in the amended Memorandum of Appeal dated 6 th December, 2024, are as follows: 1. That the learned High Court Judge erred both in law and fact when he held that the appellant was not a bona fide purchaser for value without notice contrary to the evidence on record. 2. That the learned High Court Judge erred in law and fact when he held that the Respondent herein proved that she was not able to take up both 70001 Masala and MT 179 Mitengo because they were encumbered contrary to the evidence on record. 3. That the learned trial Judge erred both in law and fact when he held that there was procedural impropriety in the manner plot no. 14163 was allocated to the so call Davy -RS- I Kabwe and this impropriety extends to the defendant (Appellant herein) for the role she played when there is no evidence proving the said procedural impropriety and/or role played by the appellant herein as to the procedural impropriety. 4. The learned trial Court erred in law and fact when he held that there is no law that allows the Ministry of Lands to allocate land already allocated by a local authority simply because it is a principal authority when all offers are granted by the said Ministry of Lands 5. That the learned trial Court erred in law and fact when he held that the contract between the appellant and Davy Kabwe was illegal when there was no evidence to the contrary. 7.0 AFFIDAVIT IN OPPOSITION 7 . 1 In opposing the application, the respondent Martha Nondo swore an affidavit dated 13th May 2025, wherein she deposed that the grounds of appeal, as contained in the Amended -R6- Memorandum of appeal, disclose no reasonable prospects of success of the appeal. She emphasised that the single Judge accurately observed that the applicant commenced construction on the disputed land despite warnings from both the respondent and the Ndola City Council, and that her vendor, Davy Kabwe, had sold the property without obtaining the requisite state consent to assign. 7.2 She further averred that the applicant has shown no lawful basis to challenge the respondent's ownership, noting that her acquisition of the property was procedurally flawed, hence the High Court's finding against her. She also questioned the authenticity of the affidavit in support, alleging that it was not properly commissioned. She maintained that the applicant's actions are intended merely to delay execution and to continue occupying property that lawfully belongs to the respondent. 8.0 SKELETON ARGUMENTS IN OPPOSITION 8.1 In the skeleton arguments of even date, counsel for the respondent relied on Nyampala Safaris and Four Others v. Zambia Wildlife Authority and Six Others. 2 The application must therefore clearly demonstrate the basis on which such a stay should be granted. It was accordingly submitted that the -R7- applicant had not met this threshold, and the application should be dismissed with costs. 9.0 HEARING OF THE APPLICATION 9.1 At the hearing of the application, Mr. Mudenda relied on the affidavit and skeleton arguments on record. He emphasised that the single Judge erred by previewing the facts of the case and the judgment instead of previewing the prospects of success of the appeal. 9 .2 Miss Shamakamba relied on the affidavit in opposition as well as the list of authorities and skeleton arguments filed on 13th May 2025. 10.0 ANALYSIS AND DETERMINATION 10 . 1 We have carefully considered the record of motion, the affidavit evidence, and the submissions advanced by both parties. 10.2 It is trite that a stay of execution is a discretionary remedy, granted only upon demonstration of good and convincing reasons. In Nyampala Safaris (Z) Ltd and Others v. Zambia Wildlife Authority and Six Others,2 the Supreme Court stated that: "A stay of execution is only granted on good and convincing reasons. The rationale for this position is clear, which is that a -RB- successful litigant should not be deprived of the fruits of his litigation as a matter of course. The application for a stay of execution must therefore clearly demonstrate the basis on which such stay should be granted." 10.3 Similarly, in Sonny Paul Mulenga and Others v. Investrust Merchant Bank Limited,3 the Supreme Court held that: "In exercising its discretion whether to grant a stay or not, the court is entitled to preview the prospects of the proposed appeal succeeding. Sufficient reasons are required to show that it is reasonable andjust to stay execution." and that: "The successful party should not be denied immediate enjoyment of a judgment unless there are good and sufficient grounds." 10. 4 We have perused the grounds of appeal advanced by the appellant, and we are mindful that in previewing the prospects of success of the appeal, the Court is not called upon to determine the substantive merits of the appeal. As the Supreme Court cautioned in Anuj Kumar Rathi Krishna v -R9- The People4 , doing so would amount to pre-judging the appeal. Our task is limited to assessing whether the intended appeal has prospects of success or discloses arguable grounds and whether there exist exceptional circumstances warranting interference with the ordinary execution process. 10.5 We shall not comment on the lower Court's factual findings, which have also been alluded to in the respondent's affidavit in opposition and skeleton arguments, to the effect that the applicant constructed on land which did not belong to her, despite clear warnings from both the respondent and the Ndola City Council. That the sale by her vendor was patently defective for want of state consent, which made her title susceptible to challenge because such issues are better reserved for determination at the hearing of the substantive appeal. 10.6 Furthermore, the argument that the appeal would be rendered nugatory can only hold where the appeal discloses reasonable prospects of success. On the face of the record, the grounds of the appeal are arguable and some of them are likely to succeed. 10. 7 We are persuaded that this is a proper case for the exercise of our discretion in favour of the applicant as we accept her -RIO- argument that without a stay the appeal might be rendered nugatory. 11.0 CONCLUSION 11.1 As a result, we hereby reverse the ruling of the single Judge dated 31 st March, 2025 and grant a stay of execution of the Judgment appealed against pending the hearing and determination of the appeal. The parties shall bear their own costs. J. C AS I COURT OF APPEAL JUDGE C. K. MAKUN U COURT OF APPEAL JUDGE A. M. BANDA-BOBO COURT OF APPEAL JUDGE -Rl 1-