Binwell Mutaka v Mwanza Mulawo and Ors (CAZ/08/229/2024) [2025] ZMCA 161 (1 December 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/08/229/2024 BETWEEN: BINWELL MUTAKA APPELLANT AND -IVH-" !ifibl!t,'t' . · . i!9 ii ,M f) 6 ,,...,, ___ - MWANZA MULAWO VERONICA CHIPAMPE LUSAKA CITY COUNCIL THE COMMISSIONER OF LANDS THE ATTORNEY GENERAL . 1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT CORAM: Hon. Mr. Justice K. Muzenga in Chambers at Lusaka. For the Appellant: For the 1st Respondent: For the 2nd Respondent: For the 3rd Respondent: For the 4th and 5th Respondent: Mr. H. M. Mulunda, Messrs Hibajene Mulunda Advocates Absent Ms. R. Samanjomba, Nkusuwila Nachalwe Advocates Absent Ms. N. Mulalelo Senior State Advocate, Attorney General's Chambers RULING Cases referred to: 1. Richard M. Chizyuka and Another v. Credit Bank Limited - AppealNo.8/113/99 R2 2. Watson Nkandu Bowa {suing as Administrator of the Estate of the late Ruth Bowa) v. Fred Mubiana And ZESCO Limited - Selected Judgment No. 21 of 2012 3. Wilson v. Church No. 2 [1879] 12 Ch. D 454 4. Ravasia Petroleum Limited v. Katasha Industries {PTY) {T / A) Liquid Solutions RSA {NOM402023) 2024 ZMCA 5. Nyampala Safaris {Z) Ltd and Others v. Zambia Wildlife Authority and Others {2004) ZR 49 6. David Lukwele v. John Kimani - CAZ/08/191/2019 7. Burden Mufungwe and Another v. Moshen Zaban Hainder and Another- CAZ/08/52,53/2019 8. Sonny Paul Mulenga & Others v. Investrust Merchant Bank Limited {1999) ZR 101 9. Charles Laima v. Pulse Financial Services - CAZ Application No. 41 of 2023. Statutes referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016. 2. Court of Appeal Act, No. 7 of 2016. 3. Rules of the Supreme Court of England, 1999 Edition {White Book). 1.0 INTRODUCTION 1.1 This is the appellant's application for a stay of execution of Judgment pending the determination of appeal pursuant to Order 10 rule 2 of the Court of Appeal Rules {CARs) as read together with Section 9 of The Court of Appeal Act. 2.0 BACKGROUND 2.1 The background to this application is that the appellant took out a writ of summons and statement of claim against the respondents in the court below seeking inter a/ia, cancellation of Certificates of Title R3 issued to the 1st and 2nd respondents and vacant possession of properties known as LUSAK/LN/24541/4 and LUSAK/24541/5 Lusaka. 2.2 After hearing the matter, the learned trial judge delivered judgment on 21st September 2022 determining that the appellant had failed to discharge the burden of proving his claims. The judge declined to grant the reliefs sought. 2.3 Dissatisfied with the decision of the trial court, the appellant filed a Notice of Appeal before this Court on 16th May 2024. On 12th September 2024 the appellant applied for an order for stay of execution of the judgment before the High Court wherein a ruling was rendered on 7th May 2025, declining to grant the order sought. 2.4 The appellant then renewed the application for stay, culminating into this Ruling. 3.0 THE HEARING 3.1 Both parties were present at the hearing. They informed me that they would rely on their respective affidavits and arguments filed in the matter. They also opted to submit briefly. I will not recount the contents of the affidavits and arguments verbatim. 4.0 APPELLANT'S ARGUMENTS 4.1 The application is supported by an affidavit and skeleton arguments. The gist of the affidavit in support is that prior to the judgment of 21st September 2022 under cause number 2017/HP/1735 there was R4 already another matter before Justice Mapani-Kawimbe under cause number 2012/HP/1043 wherein the question of ownership of the subject land was settled and judgment was rendered in his favour on 21 st February 2017. It was averred that the 2nd respondent (2nd defendant in the court below) is the daughter to Annie Musumali Kabamba who was the 2nd defendant under cause number 2012/HP/1043 and that the said Annie Kabamba gifted the subject land to the 2nd respondent herein who in turn parceled the piece of land to the 1st respondent. 4.2 The appellant avers that there are therefore two judgments of the High Court dealing with the same parcels of land and the 2nd respondent's mother, the one from whom the 2nd respondent derives title was party to the judgment of 21st February 2017 under cause number 2012/HP/1043 wherein Judge Mapani- Kawimbe held in favour of the appellant. 4.3 That a careful and meticulous perusal of the Memorandum of Appeal would clearly show that his appeal has prospects of success. 4.4 It was submitted that having established that there is a nexus between the two judgments, it was in the interest of justice that the judgment of 21st September 2022 be stayed pending determination of the appeal and if it is not stayed, the respondents may alienate the land rendering the appeal an academic exercise and nugatory. 4.5 In the skeleton arguments, he referred to the case of David Lukwele v. John Kimani1 to argue that the appellant is likely to RS suffer irreparable injury or damage as the appeal revolves around the issue of land ownership. 4.6 Further reference was made to the case of Bowa v. Mubiana and Another2 and Burden Mufungwe and Another v. Moshen Zabad Hainder and Another3 to emphasise the point that this application has merit as he was one of the beneficiaries of displaced Ng'ombe residents but the property was unlawfully grabbed from him. That the chances of the success of the appeal are high as was held in Sonny Paul Mulenga and Others v. Investrust Bank Limited.4 5.0 2ND RESPONDENT'S ARGUMENTS 5.1 In opposing the application, the 2nd respondent averred in the affidavit in opposition that the property was initially allocated to her late mother Mrs. Musumali by the Ng'ombe Displaced People's Committee and that a certificate of title was subsequently obtained. She averred that she had undertaken extensive developments on the property and that judgment was even granted in her favour on 21st September 2022. 5.2 The 2nd respondent avers that an applicant for stay of execution must demonstrate good and compelling reasons, including the fact that the appeal has high prospects of success and that he will suffer irreparable injury if the stay is not granted. That the appellant's appeal however, has no prospects of success as it discloses no error of law or fact in the judgment of the lower court. R6 5.3 In the skeleton arguments, learned Counsel for the 2nd respondent relied on the case of Richard M. Chizyuka and Another v. Credit Bank Limited5 in arguing that prospects of success are a central requirement. That the appellant has no good title to the property whilst the 2nd respondent holds a certificate of title, a fact which demonstrates that the appeal has no prospects of success, and no amount of desirability can cure that defect. 5.4 She submitted that the Supreme Court in Bowa v. Fred Mubiana and ZESCO Limited supra held that the test for stay of execution includes both prospects of success and irreparable damage. 5.5 It was counsel's argument that the 2nd respondent invested heavily in the said property and continues to occupy and develop it and in the unlikely event that the appellant succeeds, his loss can be atoned by damages whilst the 2nd respondent will suffer irreparable harm if deprived of her property. She anchored this argument on Order 59/13/2 of the Rules of the Supreme Court of England, 1999 Edition. 5.6 It was argued that this appeal can never be rendered nugatory because it is bound to fail. She contended that the appellant has not demonstrated an arguable case and has no prospects of success. 5.7 I was urged to dismiss the application with costs to the 2nd respondent. R7 6.0 3Ro RESPONDENT'S ARGUMENTS 6.1 The 3rd respondent equally opposed the application for an order for stay of execution and filed an affidavit and skeleton arguments in opposition. In the affidavit in opposition, it was averred that the appellant lamentably failed to demonstrate that exceptional circumstances exist that justify the grant of a stay and further that the appeal has no prospects of success. 6.2 The gist of the 3rd respondent's argument in the skeleton arguments is that the appellant has not met the criteria for which a renewal of stay of proceedings can be granted by failing to demonstrate the irreparable damages he will sustain if it is not granted. 6.3 It was submitted that the appellant has not given sufficient grounds to warrant stay of execution of judgment pending appeal. Reliance was placed on the case of Wilson v. Church6 and Ravasia Petroleum Limited v. Katasha Industries (PTY) (T / A) Liquid Solutions RSA.7 6.4 Further relying on Richard M. Chizyuka and Another v. Credit Bank Limited supra/ it was argued that the grounds of appeal do not encompass the prospect of success of the appeal. 6.5 It was counsel's argument that if a stay of execution is granted, it will rob the parties the fruits of this judgment and the litigants may suffer an injustice in the event that the Court of Appeal agrees with the lower court. I was referred to Nyampala Safaris (Z) Ltd and R8 Others v. Zambia Wildlife Authority and Others8 for the argument that the appellant has not demonstrated that it has good and convincing reasons for seeking a stay which is in consonance to the principles of law on stay of proceedings pending appeal. 6.6 Counsel relied on a number of authorities in contending that the grounds of appeal have no merit as well as prospects of success and an attempt to prevent the 3rd respondent from enjoying the fruits of the judgment. 6.7 I was urged to dismiss the application for lack of merit. 7.0 APPELLANT'S ARGUMENTS IN REPLY 7 .1 The appellant filed arguments in reply in which he argued that the appeal raises important points of law as well as exceptional/ compelling circumstances warranting the grant of a stay of execution of the judgment of the court below. 7 .2 The appellant reiterated the contents of his affidavit in support, contending that the subject of the appeal is an interest in land, loss of which cannot be atoned for by an award of damages, as such the appellant will suffer irreparable injury/damage if the stay is not confirmed. He relied on David Lukwele supra for this assertion. 7.3 He also relied on Burden Mufungwe and Another supra on what amounts to reasonable prospects of success. It was contended that the appeal has prospects of success. R9 8.0 MY DECISION 8.1 I have carefully considered the affidavits and arguments, for and against the application. The issue is whether it is desirable to grant a stay of execution pending the determination of the appeal. 8.2 The Supreme Court has in a plethora of cases guided on what must be taken into consideration when deciding whether or not to grant a stay. In the case of Sonny Paul Mulenga & Others supra the Supreme Court stated that: "In terms of our rules of court, an appeal does not automatically operate as a stay of execution and it is utterly pointless to ask for a stay solely because an appeal has been entered. More is required to be advanced to persuade the court below or this court that it is desirable, necessary and just to stay a The successful party judgment pending appeal. should be denied immediate enjoyment of a judgment only on good and sufficient grounds . .. In exercising its discretion whether to grant a stay or not, the court is entitled to preview the prospects of success of the proposed appeal." 8.3 Subsequently, in Watson Nkandu Bowa (suing as Administrator of the Estate of the late Ruth Bowa) v. Fred Mubiana And ZESCO Limited supra, the Supreme Court stated that the case of Sonny Paul Mulenga supra/ governs the granting or non-granting of applications to stay execution of judgments pending appeal. The apex court went on to state that: "In an application for stay of execution pending appeal, the considerations are the prospect of the appeal succeeding and the irreparable damage if a RlO stay is not granted and the appellants' appeal succeeds." 8.4 I have carefully perused all the twelve grounds of appeal advanced by the appellant. I form the view that the said grounds raise valid, arguable issues. Without pre-empting the issues for determination on appeal and bearing in mind that the subject matter is a parcel of land, and as we stated in Charles Laima v. Pulse Financial Services,9 if a stay is not granted, the appellant may suffer irreparable harm. I am satisfied the appeal has a likelihood of success. To avert the appeal from becoming moot or being rendered nugatory, I lean towards granting the stay, acknowledging the potential merit in the appeal and ensuring the appellants' rights are not prejudiced. 9.0 CONCLUSION 9.1 In the circumstances, I find merit in the application. I hereby confirm the ex-parte order of stay granted on the 30th May 2025. The judgment of the lower Court is stayed until the determination of the within appeal or until further order of the court. 9.2 Costs of this application will be in the cause. Dated this 1st day of December 2025 K. MUZENGA COURT OF APPEAL JUDGE