Attorney General and 2 Others v Tinyokole Properties (MISC Civil Application 42 of 2021) [2021] MWSC 20 (10 November 2021)

IN THE MALAWI SUPREME COURT OF APPEAL MISC CIVIL APPLICATION NO. 42 OF 2021 BETWEEN ATTORNEY GENERAL - 157 APPELLANT MINISTER OF MINING------------------ 2ND APPELLANT MINISTER OF FORESTRY AND NATURAL RESOURCES---38° APPELLANT AND TINYOKOLE PROPERTIES == RESPONDENT CORAM: THE HON. JUSTICE M. C. C. MKANDAWIRE JA Bonomali, Counsel for the Appellant F. Chipembere, Counsel for Respondent Minikwa, Recording Officer RULING This is an inter-parte summons for an order to stay execution of judgment pending appeal. The application is brought pursuant to section 7 of the Supreme Court of Appeal Act as read together with Order 1 Rule 18 of the Supreme Court of Appeal Rules. The application is supported by a sworn statement by Lali Ali Bonomali together with skeleton arguments. 2. The Respondent has opposed this application and they have also filed skeleton arguments in opposition. 3. On the 29" of July 2021 the Court below delivered a ruling in favour of the Respondent. The Applicants lodged a notice of appeal after obtaining leave to appeal. The Applicants filed an application for stay of execution but the Court below declined to grant it. 4. The Applicants say that the retio decidendi given by the Court below does not afford a legal basis on which a stay can be denied. 5. The Applicants believe that the application for stay of execution of judgment dated the 29" of July 2021 will be successful based on the following:- i) Balance of justice ii) Likelihood of success iii) Balance of convenience 6. The Applicants therefore pray to this Court for an order that the judgment made by the Court below being Judicial Review No. 14 of 2020 of the High Court Commercial Division be stayed pending hearing and determination of appeal. 7. The Respondent has not filed any sworn statement opposing this application. All that is filed are skeleton arguments dated 19'" October 2021. 8. In arguing this application Counsel for the Applicants said that the Court below did not have jurisdiction to hear the judicial review matter. Counsel also said that the Applicants have also raised special circumstances as to why stay has to be granted. Counsel finally submitted that Justice Manda recently transferred a similar matter for want of jurisdiction. 9. On their part, the Respondent were very brief. Counsel submitted that in as far as stay is concerned it is the discretion of the Court. 10. | am aware that the question whether to grant stay or not is entirely in the discretion of the Court. As a general rule the court must not interfere with a successful party’s right to enjoy the fruits of litigation where the losing party has appealed and is able to demonstrate that the successful litigant would be unable to pay back the damages in the event that the appeal succeeds execution of the 2 Court’s judgment may be stayed. Lastly even where the party appealing is able to show that the successful party would be unable to pay back the damages if the appeal succeeds, the Court may still refuse an application for stay of execution, if upon examination of the facts of the case, an order of stay of execution would be utterly unjust. The cases of AR Osman and Company vs Nyirenda [1995] 1 MLR 13(SCA) and Nyambi vs Malawi Railways Limited [1993] 16(1) MLR 394(SCA) are authority for this. The Applicants have also argued that the appeal herein will be rendered nugatory if exemption of judgment is not stayed. 11. | have addressed my mind towards the cases of Airtel Malawi PLC vs Competition and Fair Trac'ing Commission HC (LL R) Commercial Case No 404 of 2021 and The Sheriff of Malawi vs Universal Kit Suppliers Ex Parte Universal Kits Suppliers MSCA Civil Appeal No 6 of 2017. The issue of want of jurisdiction by the Court below has really exercised my mind. | take it that the likelihood of success on appeal is very high. 12. | accordingly grant the order of stay of the Court’s Judgment dated 29" of July 2021 pending the hearing end determination of the appeal. Costs to the Appellants. DELIVERED in Chambers at Blantyre this 10° day of November 2021 Honourable Justice M. C. C Mkandawire JUSTICE OF APPEAL