Angela Sabe Siamuuzwide v Stephen Jere and Anor (CAZ/08/264/2019) [2019] ZMCA 447 (27 December 2019)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/O8/264/2019 Rl HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ANGELA SABE SIAMUUZWIDE APPELLLANT AND STEPHEN JERE SUNDAIH MBWELENGE SIAMUUZWIDE }ST RESPONDENT 2ND RESPONDENT Before the Hon. Mrs. Justice P. C. M Ngulube in Chambers For the Appellant: B. Phiri, Messrs Linus. E. Eyaa and Partners For the Respondent: M. Kasaji, Messrs C. L. Mundia and Company RULING Cases referred to: - 1. Nyampala Safaris Limited and Four others vs Zambia Wildlife Authority and 6 others (2004) Z. R.49 2. Mulenga and others vs Investrust Merchant Bank Limited (1999) Z. R. 101 3. Metal Fabricators of Zambia vs Washington Mwenya Zimba,, SCZ/ 170/ 2002 4. John Kunda (suing as Country Director of and on behalf of the Adventist Development and Relief Agency {ADRA) vs Keren Motors Limited, 2008/ HPC/ 550 Legislation referred to: 1. Court of Appeal Rules, Statutory Instrument Number 65 of 2016 2. Rules of the Supreme Court, 1999 Edition R2 1.0 INTRODUCTION 1.1 This ruling relates to an application made by the appellant for stay of execution of the ruling of the High Court delivered on 15th August, 2019, pursuant to Order 10 Rule 2(1) and (2) of the Court of Appeal Rules 1 and Order 45 Rule 11 of the Rules of the Supreme Court, 1999 Edition2 . 2.0 BACKGROUND 2. 1 The background to this application is that the 1st respondent, by way of notice of motion raised a preliminary issue on points of law pursuant to Order 14A of the Rules of the Supreme Court, 1999 Edition3 , seeking a determination whether or not the matter is res judicata> as he was of the view that the proprietorship of the property subject of this matter had already been determined under cause number 2017 /HP/2010. The 1st respondent further sought a determination whether this matter amounts to a multiplicity of actions. 2.2 It was averred that the 1st respondent commenced an action against the appellant under Cause Number 2017 /HP/2010 for the lifting of a caveat which the appellant had placed on the property. R3 2.3 The court rendered a Judgment and found that it was impossible to share matrimonial property while the marriage was still subsisting and the caveat was accordingly removed. The court heard both parties on the preliminary issues that were raised and concluded that the court that adjudicated on the matter earlier made a determination on the interest the applicant held in the property and found that the appellant had no beneficial interest in it. 2.4 The court further stated that what the appellant sought before her hinged on the same subject matter as cause 2017 /HP/2010 and was already determined in the earlier cause. The court found that there was a multiplicity of actions. The preliminary issued raised succeeded and the applicant's action in the lower court was dismissed with costs. 3.0 MAIN APPLICATION 3.1 The appellant has now renewed the application for stay of execution. She filed an affidavit in support on 3 rd September, 2019, in which she averred that she is desirous of prosecuting her appeal and prayed that she be granted an order for stay of execution, pending the hearing and determination of the appeal. R4 3.2 The appellant averred that special circumstances exist that require the grant of an order for stay of execution and that if a stay is not granted, the 1st respondent will proceed to execute the judgment and injure the appellant's right to appeal. She contended that the order for stay of execution will maintain the status quo until the determination of the appeal. 3.3 The appellant filed a list of authorities in support of the application. She referred to the case of Nyampala Safari.s Limited and Four others vs Zambia Wildlife Authority and 6 others1 , where the Supreme Court stated that- "........ A stay is only granted on good and convincing reasons. The application for stay of execution must therefore clearly demonstrate the basis on which such a stay should be granted." 3.4 The appellant also referred to the case of Mulenga and others Vs Investrust Merchant Bank Limited2 , where the Supreme Court observed that- RS "in exercising its discretion whether to grant a stay or not, the court is entitled to review the prospects of the proposed appeal." 3. 5 This court was also referred to the case of Metal Fabricators of Zambia vs Washington Mwenya Zimba3 , where the court stated that - "There must be good reasons to stay execution of a judgment. It follows that for this application to succeed, the respondent must satisfy the court that there are good reasons to stay execution of the judgment and that there is merit in the appeal." The 1st respondent filed an affidavit in opposition to the summons for an order of stay of execution. He averred that in exercising its discretion whether to grant a stay or not, the court is entitled to preview the prospects of the proposed appeal and that special circumstances must exist to warrant the grant of a stay. The court was urged to dismiss the appellant's application as no special circumstances had been exhibited and that the likelihood of success on appeal is absent. 3. 6 The 1st respondent filed submissions in which he contended R6 that the grounds of appeal are bound to fail as they lack merit. The court was urged to vacate the ex-parte order for stay of execution that was granted on 4 th September, 2019. The appellant filed skeleton arguments in reply and stated that the grounds of appeal raise issues fit for consideration by the appellate court and that the matters under causes number 2017 /HP/2010 and 2019/HP/0173 are not a multiplicity of actions. The court was urged to grant the stay pending the determination of the appeal. 4.0 MYVIEW 4.1 I have considered the Ruling of the lower court, the record, affidavits in support and opposition, skeleton arguments and submissions by Counsel. A stay of execution is granted at the discretion of the court. In the case of John Kunda (suing as country director of and on behalf of the Adventist Development and Relief Agency (ADRA) vs Keren Motors Limited4 , it was held that- R7 " ........ a successful party should only be denied immediate enforcement of a judgment on good and sufficient grounds." 4.2 In casu, without going into the merits of the appeal, I am of the view that the appellant has not shown any special circumstances in favour of granting a stay. For that reason, I am not persuaded to exercise my discretion to grant an order for stay of execution. The ex-parte order for stay of execution that was granted on 4 th September, 2019 is accordingly discharged. This application is dismissed with costs to the 1st respondent, to be taxed in default of agreement. Dated this 27th day of December, 2019. HONOURABLE MRS JUSTICE P. C. M NGULUBE COURT OF APPEAL JUDGE