Lungu v Mambwe (HP/A 14 of 2013) [2014] ZMHC 98 (10 August 2014)
The appellant is entitled to restitution of the property based on a prior judgment granting a life interest, and a stay of execution is unwarranted as the property will remain available pending appeal.
Source-derived case information.
- Citation
- [2014] ZMHC 98
- Parties
- Appellant: Sheck Lungu; Respondent: Steven Mambwe
- Court
- High Court of Zambia
- Jurisdiction
- Zambia
- Case Number
- HP/A 14 of 2013
- Procedural Posture
- Civil / Ruling on Interlocutory Applications
- Outcome
- Applications for restitution and leave to appeal out of time granted; application for stay of execution refused.
- Legal Topics
- Restitution of Property, Stay of Execution, Leave to Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sheck Lungu
Appellant
Steven Mambwe
Respondent
Procedural Posture
Civil / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the appellant is entitled to restitution of property No. 39/2 Garden Compound
- 2 Whether a stay of execution of the judgment should be granted
- 3 Whether leave to appeal out of time should be granted
Ratio Decidendi
The appellant is entitled to restitution of the property based on a prior judgment granting a life interest, and a stay of execution is unwarranted as the property will remain available pending appeal.
Court Disposition
Applications for restitution and leave to appeal out of time granted; application for stay of execution refused.
Orders
- Order of restitution restoring property No. 39/2 Garden Compound to the appellant
- Costs awarded to the appellant for the restitution and stay applications
Full Case Text
Judgment text and source record
1 paragraphs
IN THE HIGH COURT FOR ZAMBIA 2013/HP/A014 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: SHECK LUNGU AND STEVEN MAMBWE Before the Hon. Mr. Justice D. Y. Sichinga, SC in Chambers at Lusaka on the 11th day of August, 2014 For the Appellant: Mr. B. Siachitema For the Respondent: No Appearance Ms. M. Tresha - Messrs Lusito Chambers RULING There appears to be three pending applications in this matter. The first is an application for restitution of property No. 92/14 Garden Compound pursuant to Order 46 Rule 3 paragraph 2 Rules of the Supreme Court, 1999 Edition. According to submissions by Counsel for the Appellant herein and the affidavit in support filed on 14th April, 2014, the Respondent has taken possession of the said property and remains in occupation. The Respondent did not oppose the application. I have considered this application and state from the outset that this court held in its Judgment dated 29th July, 2013 that the Appellant, SHECK LUNGU had a life interest in the subject property. I thus the grant an Order of Restitution restoring property number 39/2 Garden Compound to the Appellant. The application is granted with costs to the Appellant. The second application is an application made by the Respondent herein for an Order to stay execution of the Judgment made by this court on 29th July, 2013. I have read the affidavit in support of this applicant and considered the averments therein. The subject matter of this litigation is a real estate property which, in the event that the Supreme Court were to revert the property to the Respondent, it would still be in existence. I thus decline to grant a stay of execution of the judgm ent dated 29th July, 2013 with costs to the Appellant. The third application is one by the Respondent for leave to appeal to the Supreme Court out of time. I have considered the Respondent’s affidavit filed on 29th January, 2014. There is no basis to deny the Respondent leave to appeal. I accordingly grant the Appellant 30 days of the date hereof to appeal to the Supreme Court. Delivered in Chambers at Lusaka this 11th day of August, 2014 JUDG