Ernestina R. V. Sakala v Mupelwa Mbita and Ors (CAZ/08/501/2022) [2023] ZMCA 411 (15 March 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/08/501/2022 BETWEEN: ERNESTINA R . V. SAKALA AND MUPELWA MBITA MABVUTO MAZYOPA MWALIMU MWIITWA THE COMMISSIONER OF LANDS 4TH RESPONDENT THE ATTORNEY GENERAL STH RESPONDENT VICTOR MITI AND 12 OTHERS 6TH RESPONDENT CORAM: SIAVWAPA, JA On 6TH February 2023 and 15t h March 2023 FOR THE APPLICANT Mr. A. M. Mukupa of Isaac & Partners of Messrs Paul Norah Advocates FOR THE 1st, 2 nd , 3 rd and 6th Mr. G. Lungu of Messrs. Muleza RESPONDENTS Mwimbu & Associates FOR THE 4TH and 5TH No Appearance RESPONDENTS Case cited: RULING John Mumba and 3 Others v Zambia Red Cross Society Appeal No 141 of2005 Legislation Cited: High Court A ct, Chapter 27 of the Laws of Zambia 1.0 INTRODUCTION 1.1 The Applicant seeks an order staying the Judgment of the High Court dated 25th October 2022 pending the h earing and determination of her appeal pursuant to Order 36 Rule 10 of the High Court Rules . 1.2 The a pplication is dated 8 th December 2022 and supported by a n affidavit of even date. 2.0 FACTS AND ARGUMENTS BEFORE THE COURT 2 .1 This matter commen ced in the Lands Tribunal where the Applicant's claim on Stand No L/ 12541 /M was upheld. 2 .2 On a ppeal to the High Court, this holding by the Lands Tribunal wa s set a side precipita ting the a ppeal b efore this Court. 2 .3 The Applicant now seeks to stay the judgm en t of th e High Court p ending d etermina tion of the a ppeal b y the Court of Appeal. 2 .4 The Applicant ass erts tha t h er chances of s u ccess on a ppeal a re high and tha t unless the judgm ent of the High Court is s tayed h er a ppeal will be rendered a n acad em ic exercise as the Respondents will b e liberty to dispose of t h e prop erty subject of this a ppeal. 2.5 According to the Appellant, any loss she is likely to suffer cannot be compensated in damages and special circumstances exist that render the execution of the said judgment inexpedient to the parties. 2.6 In opposition, the 1st Respondent filed an affidavit on behalf of himself and the 2 nd , 3 rd and 6 th Respondents on 3 rd February 2023. 2.7 In that affidavit, he asserts that there is nothing to stay as the property in issue was already subdivided and sold to developers who have constructed dwelling houses to completion and are living on the same properties. 2.8 The 1st Respondent contends that there is no loss to be suffered by the Appellant on a property which is already fully developed. It is further asserted that the Applicant's chances of success on appeal are non-existent. 3 .0 DECISION 3.1 I have carefully considered the application, affidavit evidence and arguments proffered by the parties . 3.2 In the case of John Mumba and 3 Others v Zambia Red Cross Society 1 , the Supreme Court guided that before granting a stay of execution, the Court can ask itself if there is anything to stay. 3.3 The facts on record reveal that the Applicant did commence an action in the Lands Tribunal and the Tribunal declared h er the rightful owner of Stand No. L/ 1254/M. 3.4 The Respondents appealed to the High Court, which in its judgment dated 25th October 2022, set side the judgment of the Lands Tribunal. 3. 5 The effect of the judgment above is that the parties reverted to the status they were in before the action in the Lands Tribunal was commenced. I then ask myself, what is there to stay? 3.6 The judgment dated 25th October 2022 does not contain any orders of the Court that can be enforced if this application is not granted. I am therefore inclined to dismiss this application as there is nothing to stay. 3.7 The application is accordingly dismissed with costs to the 1st, 2 °d, 3 rd and 6 th Respondents . . . . . . . . . . . . . . . . . J .................... . M. J. SIAVWAPA COURT OF APPEAL JUDGE 4