THE Court of Appeal has directed that the consent judgment entered between Elizabeth Catherine Cooke and lawyer Germano Kaulungombe on behalf of 360 farmers of Lusaka West for the purchase of land should be executed.
The court said the 360 farmers should be allowed to purchase the land in question from the title deed holders for a fee to be agreed as the farmers are on the verge of losing their investment built up to over 27 years ago if the said consent is not executed.
This is in a matter where Osick Chilembo sued Cooke as the executrix and beneficiary of the estate of the late Elizabeth Catherine Swanepoel, Howard Cooke, Peter Swanepoel, Hugo Jacobs, the Attorney General and Kafue District Council seeking a stay and to set aside the consent judgment dated February 19, 2020 for irregularity and fraud.
The appellants formed two groups: one led by Chilembo and 25 others seeking a stay of the consent judgment, and the other group comprised over 300 appellants represented by Dr O.M.M Banda who are opposing the application and are represented by Lusaka lawyer Kaulungombe.
Cooke and three others had sued Chilembo and more than 300 others in the Lusaka High Court for illegally occupying their land.
The High Court, upon being satisfied that Cooke and others had proved on a balance of probabilities that they were lawful holders of certificates of title to the said farms, ordered that the illegal occupants vacate the said farms and pay damages for trespass.
Dissatisfied with the judgment of the High Court, the squatters appealed the said decision to the Court of Appeal attacking the findings of the judge in favour of the complainants.
However, on February 19, 2020, the parties executed a consent judgment where it was agreed that the owners of the farms in question would give the squatters an option to purchase the pieces of land subject to them paying costs and damages awarded to them (land owners) and the said judgment was signed by a panel of three judges of the Court of Appeal.
Chilembo and others filed an application to stay the execution of the consent judgment and to set it aside and stressed that if the same was not granted, Cooke and three others would enforce the judgment and render the appeal academic.
Chilembo alleged that following the judgment of the High Court, Kaulungombe wrote a letter to their advocates threatening to demolish all the properties on farms 394a/A, 738 and 1958 but a printout from the Ministry of Lands reveals that farm no.1958 was confiscated by the government.
He further alleged that Kaulungombe asked some of the appellants to pay him K17,000 each as damages and costs when the matter is still in court. Chilembo also prayed that Kaulungombe be restrained from asking for money from them.
Chilembo and others further sued Kaulungombe in the High Court claiming that he fraudulently signed a consent judgment on their behalf without their authority.
But on May 6, 2020 chairman and secretary of the Lusaka West community exonerated Kaulungombe stating that the consent judgment was not fraudulently signed as they instructed him to do so on their behalf.
During hearing, the lawyer representing Cooke and others argued that a consent judgment being a final judgment cannot be stayed.
He said since the action was against Kaulungombe and not the owners of the land, there is no ground on which the court could stay the execution of the consent judgment.
In their ruling, Court of Appeal judges Judy Mulongiti, Florence Lengalenga and Dominic Sichinga said that it is trite law that a consent judgment can only be set aside by commencement of a fresh action as this can only be done in the lower courts which conduct trials, unlike the appellate courts.
“We note that Order 59/9/13 on stay of execution of judge is clear that the application should be made in the High Court in the first instance. The judgment being sought to be stayed is not the High Court judgment which was subject of the withdrawn appeal, but the consent judgment which was executed in the Court of Appeal,” the court said.
It ruled that it was inclined to grant the stay pending determination of the fresh action in the High Court but since the 300 plus appellants oppose the grant of the stay and have averted that they instructed Kaulungombe, the stay of the consent judgment should be for the benefit of Chilembo and 25 others.
The court said that part of the land subject of the consent judgment affecting the over 300 should be executed as consented while the other involving Chilembo and 25 others be stayed as prayed.