Celcom Limited v Huwa & Ors. (Civil Appeal 8 of 2015) [2017] MWHC 109 (23 May 2017)

Celcom Limited v. Davie Huwa and Others Kenyatta J. Nyirenda, JUDICIARY IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY CIVIL APPEAL NO. 8 OF 2015 BETWEEN: CELCOM LIMITED ..................... ............................... APPELLANT -VS- DA VIE HUW A AND OTHERS .................................... RESPONDENTS CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. C. Gondwe, Mr. Chisanga, Mr. 0. Chitatu, SC, of Counsel, Court Clerk for the Respondents for the Appellant of Counsel, Kenyatta Nyirenda, J. Introduction RULING This is the Appellant's delivered [Hereinafter by this Court referred to as the "Application th January 2017 for Stay"]. application for an order staying execution of the in favour of the Respondents judgment on 9 On 16th February motion for leave to appeal the Supreme but the Application 28th February 2017. 2017, the Appellant notice of filed with the Court an ex-parte appeal to pending and for an order of stay of execution the judgment. Leave to Court of Appeal against appeal was granted for Stay was ordered to come by way of inter partes hearing on Celcom Limited v. Davie Huwa and Others Kenyatta J. Nyirenda, Background salaries a The Respondents commenced an ac nefits. The Appellant nd other be tion in the lower court claiming withheld d filed a defence. contested the action an on 11th November 2013 and both parties The first hearing of the case took place attended the hearing. lower court proceeded On the next set hearing to hear the case in the absence date of 15th September of Appellant 2014, the and its counsel. to pay the Respondents notice pay, withheld salaries its judgement on 28th October 2014 wherein The lower court delivered the Appellant benefits The Appellant have the matter court ordered such as gratuity, the matter cell phone allowance, fuel allowance and school fees. then made an application reviewed or re-heard. to be re-heard Having considered on 9th and 10th February 2015. the application, 2015 to the lower in the lower court on 2ih January it ordered and other sought an adjournment 2015, the Appellant from M/s Kaphale On 9th February had changed lawyers The adjournment neither court was not amused at this development, dated 16th February and the hearing appeared the Appellant nor its counsel was granted Lawyers 2015: on the ground that it at Law. 2015 but to Mis Ritz Attorneys was set for 16th February on the set hearing date. The lower by the tone of its order as evidenced "The respondent bad faith. is not being serious in prosecuting this matter and seems to be actin g in ·After not appearing in court for hearing and advancing no excuse and proceeded to pass judgement, for such absences, which judgement the was court heard the applicant delivered on 28'h October 2014 ... After all the parties February hearing. matter. This is indeed 2015, the respondent discussed and agreed on a date of hearing, have not availed and his counsel and the respondent 161h which is today, for this themselves in bad faith to delay this is acting annoying To this end, it is ordered immediate effect. that the stay order of J /h January 2014 BE and IS vacated with ordered It is further and it has to be executed warrant that the judgment within being issued of 28'h October 7 days of this order. against of execution the respondent. 2014 BE and IS effected to do so will lead to a Failure forthwith still The respondent on 281h October 2014." has a right of appeal against the judgement of this court as delivered Celcom Limited v. Davie Huwa and Others Kenyatta J. Nyirenda, could execute, Before the Respondents the lower court's decision ruling execution of 16th February, 2015. It dismissed of judgement on 20th April, and rescission the Appellant to stay made an application 2015. The lower court delivered its application the Appellant's for stay of of 16th February 2015 . Being dissatisfied w lodged this Court made the following ith the whole against the decision an appeal pertinent findings: of the lower court. Having heard the appeal, judgement of the lower court, the Appellant found that the Appellant had failed to the hearing the lower court on 16th grounds. before the on the following as firm and had more than one lawyer that is, 16th February, 2015 was had discussed parties Firstly, and accepted for 16th February, for the High Court case scheduled the date of hearing, why it did not are a law practice on J /h January, case, the lower court expressly reasons legal practitioners 2015. Secondly, "In the present attend show sufficient be faulted February, 2015. The finding cannot Appellant's at 16th February obtained the date. Thirdly, 2015 had been issued on 10th February, accepting of the dates was aware Fourthly, the two cases. Respondents' Counsel am not persuaded minutes." and his schedule the Appellant's on 4th November, 2015 after all concerned by the suggestion of his having of hearing notice 2015 to have the case adjourned was 2014. Thus when the Appellant's Counsel to 16th February, 2015, he to handle firm intended the lower court nor the and how his law practice Counsel to first attend informed neither Further, I by I 0 the case was only late for the hearing in the High Court. that Counsel Having made the above-me following c onclusions: ntioned findings, this Court proceeded to make the is whether and its counsel this Court has to decide ·"The only issue/question discretion properly. The Appellant shown every consideration of the Appellant's Counsel any excuse. was dealt with in his absence. counsel for the Appellant Accordingly, the lower court plainly In the view of this Court, with complete were treated by the lower court. To the contrary, that led the lower court to determine to appear failed it certainly on 16th February does not lie in his mouth to complain the lower court exercised did so exercise and, indeed, its it. were it is the improper conduct the case in the way it did 2015 without that the case for the hearing fairness this appeal is entirely without merit, notwithstanding to advance it. There is no ground whatsoever the skill with which for the claim by the that it is being condemned disrespect unheard for the lower The Appellant court by not turning on up or delegating has brought this entirely Hara sought All in all, Counsel Appellant its own head by lawyer to another the matter The appeal the consequences. Counsel's or without within is, therefore, its law practice " with costs. dismissed firm, and it must now take As earlier against the Appellant, the judgment in the Supreme Court as it is entitled of Appeal. indicated It now seeks an order to do, seeks to lodge an appeal Celcom Limited v. Davie Huwa and Others Kenyatta J. Nyirenda, the execution staying of the appeal. the determination of the judgment pending the filing of the notice of appeal and Affidavit Evidence The Application Gondwe [Hereinafter part thereof provides referred as follows: for Stay is supported by an affidavit to as the "Appellant's sworn by Mr. Chancy Affidavit"] and the relevant "3. THAT the record of the Industrial relations court shows that the re-hearing labour dispute in Matter Number !RC 357 of 2012(subject adjourned and shown to me marked "CTG 1" a c opy of notice o 16, 2015 at 0900 hours. to Monday, February of the of the appeal) was There is now produced f hearing to that effect. 4. THAT this date above coincided LUSUNGU GONDWE was seized Justice Nyirenda. "CTG 2" a copy of the hearing with hearing of before There is now produced of the matter. Kenyatta of a matter His Lordship Counsel whose conduct Mr. the Honourable and shown to me marked 5. THAT Counsel where two matters Court, Subordinate Lusungu Gondwe verily believed that in the hierarchy are coming up at the same time, i.e. High Court and a Counsel must first give due reverence before the High Court. of courts, 6. THAT at that time Messrs Ritz Attorneys at Law had only two legal practitioners, but Counsel Gondwe was the Lusungu himself and Mr. Zwelithini Chipembere with the matter. seized one personally 7. THAT Counsel Lusungu Relations Gondwe communicated Principal Court, Registry, at the Industrial Messrs George Bakuwa for the Respondents Court late by about 10 minutes Court. This fact was not at all disputed. his situation to the Court Clerk Counsel Mr. Gowa to inform and the Court that he might attend as he wished to adjourn the case in the High 8. THAT when he arrived Court had proceeded Judgement of 2 81h 2014. October, at the Court at around 0910 hours, he found that the in the absence of the Appellant and reinstated its earlier 9. THAT The said Judgement of 281h October, i.e. the hearing proceeded 2014 was as well made without Appellant in the absence of the who was represented the Appellant hearing herein Lawyers. review/rehearing. She made an application for a stay of that decision pending by Messrs MERCY CH/JERE of Kalekeni Kaphale 10. THAT the thrust of the affidavit of Messrs MERCY CH/JERE was that she was Court of Malawi at 10:00 hours when in the Supreme seized with another matter Celcom Limited v. Davie Huwa and Others Kenyatta Nyirenda, J. the matter was the decision of 28th October, heard in her absence 2014 pending rehearing. and the Court granted the stay and rescinded 11. of 28th October, for the Appellant for about 10 minutes THAT in short when the matter Judgement Counsel delayed time. There is now produced and Order. came for a rehearing on 16th February, 2014 was reinstated of the New in the absence albeit Messrs LUSUNGU VALALA GONDWE who was 2015, the as he was appearing in the High Court at the same shown to me marked "CTG 3" a copy of the GOOD FAITH AND NO INTENTION TO DELAY THIS MATTER 12. THAT Messrs Ritz Attorneys at There is no dispute advised and Messrs Gondwe Law already the Appellant to accept & Attorneys are still liability herein. maintaining this position. 13. THAT All that the Appellant wished benefits. and contractual for was to be heard on assessment of salaries 14. THAT the Appellant the Judgement Rules. There is now produced application. made an application for stay of execution an rescission of under Rule 25(1)(h) of the Industrial Relations Court (Procedure) and shown to me marked WH4 a copy of the 15. THAT the thrust of the application as the Judgement to be heard opportunity Counsel scheduled was obliged appearance to appear in a superior in the lower Court. was that the Appellant is wanting of natural be given an Justice and as Court at the same time as a 16. THAT However, application merely alleged now produced on 2dh day of April, 2015, the Industrial and had nothing to say on rescission Relations the of the Judgement. the matter. dismissed The Court There is that the Appellant in prosecuting is not serious and shown to me marked "CTG 4" a copy of the Order. THE APPEAL, THE RULING OF THE HIGH COURT AND SPECIAL CIRCUMSTANCES COURT. WARRANTING THE APPEAL TO THE SUPREME 17. THAT we formed the view that the lower Court erred in law in refusing 2015 upon good cause being shown that the was also seized with the matter of 161h February, Counsel who was personally to appear in the High Court at the same time. its decision Appellant's scheduled to rescind 18. THAT the Appellant whole decision Honour Mrs. D. Degabriele with the Court made by her as she was then, on the 20th day of April, appealed of the Chairperson to the High Court upon being dissatisfied of the Industrial Relations Celcom Limited v. Davie Huwa and Others Kenyatta J. Nyirenda, dismissing Judgement application the Appellant's 2015. of 16th February, for stay of execution and rescission of 19. Justice Kenyatta 2017 His Lordship Honourable THAT on 9th January, delivered judgement dismissing that the Counsel diary keeping February, of the Respondent. copy of the Judgement. the conduct There is now produced the Appellant's was not serious of the matter and shown to me marked "CTG 5" a 2015 to be delegated for the Appellant echoing as at 16th and that his firm had a number of legal practitioners appeal on the ground inter alia in the Court below and his Nyirenda the contention 20. THAT however, at that time, Messrs Ritz Attorneys Practitioners, Messrs Lusungu Gondwe and Messrs had only two practicing Zwelithini Chipembere. Legal 21. THAT Mr. Hara was only admitted to the bar in or about April, 2015. The firm did not have many lawyers by then. 22. Tltat's the matter had reached an advanced stage and could not be delegated to any other Legal Practitioner even on a brief on a short notice. 23. THAT Counsel had to appear in the High Court first and then the Industrial Relations Court after he had given notice of his predicament. 24. THAT thi affidavit clearly shows the special of circumstances for the appeal. success High Court and Malawi Supreme Thus the Appellant the lower Court in the within Court of Appeal. prays for a stay of the Judgment matter pending appeal to the and chances of the MAINTAINING THE STATUS QUO 25. THAT I verily believe the balance tilts of the appeal quo until the determination of convenience of the stay to or a farther Order of in favour the status maintain the Court. lmpecuniosity 26. THAT the Appellant has to pay the sum of MK20, 154,660.89 sum of MK8, 977 , 69. 85 to Mr. Malcolm Machinjiri MK18,331,949. 74 to the Respondents. to Davie Huwa, the and the sum of Celcom Limited v. Davie Huwa and Others Kenyatta J. Nyirenda, 27. THAT we verily believe the Respondents will not be able to pay back the monies in the event that " of the compensation. assessment the appeal is successful and the Court orders rehearing on are opposed in opposition, . The Respondents affidavit the "Respondents' the history concludes as follows: of the proceedings Affidavit"]. sworn by Mr. Wanangwa The Respondents' Kalua [Hereinafter Affidavit in the lower court and before this Court and referred more or less re-states for Stay and they filed an to as to the Application "15. That the appellants incessant applications both in the !RC and in the High Court and are aimed at merely depriving the lack merit, are an abuse of court process ligation of successful .fruits respondents three years down the line. WHEREFORE the Respondents lacking on unfairly vexatious of their the respondents being .frivolous, depriving merit, pray that the appellant's application and an abuse of court process be dismissed for and being intent .fruits of successful litigation. " Submissions Gondwe submitted Counsel that special make the grant of stay of execution premised (b)the Appellant wil I be prejudiced on two allegations, namely, circumstances The special merited. that (a) the appeal in this case which are circumstance� and of success has chances obtain if the stay order is not granted. The issue of the chances' to 3.5.1.14 3.5.1.1 and these read as follows: of the appeal succeeding are dealt with in paragraphs CASE "3.5 THE APPELLANTS 3.5.1. The Appeal has chances of success: 3. 5.1.1. The High Court did not folly appreciate error in the !RC that the Appellant was not heard on assessment compensation predicament affidavit relations court due Gondwe as underscored Lusungu to the unfortunate in the evidence of in the industrial the undisputed faced by Counsel in support. and an 3.5.1.2. Gondwe had two matters Court at the same time. It is a principle in the High Court and the of practice that Lusungu Relations Counsel Industrial of courts, in the hierarchy where two matters time, i.e. High Court and a Subordinate Court, reverence before of the African decision stare decisis Businessmen's Relations of the Industrial to follow in refusing see Post script [1991] Association the High Court, a decision of the are coming up at the same must first give due Counsel Co v The Trustees Trading 14 MLR 413 (HC). The of of the principle Court was violative High Court. Celcom Limited v. Davie Huwa and Others Kenyatta J. Nyirenda, 3.5.1.3. The High Court did that Counsel Lusungu Court and to Counsel not fully consider Gondwe communicated for the Respondent that he may delay. his predicament to the lower that there was undisputed evidence 3.5.1.4. All that the Appellant and contractual benefits. required was to be heard on assessment of salaries 3.5.1.5. Messrs Ritz Attorneys time and the matter could not be delegated at Law did not have many practicing lawyers at that 3.5.1.6. Relations The Industrial its ruling being a ruling that the Court itself rescinded Appellant benefits. was not heard on the awarding Court reinstated of 281h October, on the ground that the of salaries and contractual 3.5. J. 7. The said ruling awarded the sum of MK29, 154,660.89 to the F' Respondent (Davie Huwa); the sum of MKB,975, 769.85 to the 2nd Respondent 74 to the 3rd Respondent Machinjiri) for the same. Sauti Phiri) and the sum of MKlB,331,949. There was scheduled (Malcolm (Edward a hearing 3.5.1.8. believes The Appellant three months salary as payment resigned and gave notice. that the Court wrongfully awarded in lieu of notice although the Respondent the Appellant 3. 5.1. 9. The Appellant believes that the Court wrongfully when the F' Respondent awarded stated the F' Respondent in both his statement salary six (6) months' of claim and witness statement months. , that he was not paid salaries for three (3) 3.5.1.10. Relations The Industrial And in this respect attaches a Court (procedure) See Industrial Court is premised Relations great deal of emphasis on dispensing Rules 1999, Rule 25 (4). substantial justice. on equity or fairness. 3.5.1.11. Rules 25 (1) (h) ofthe Industrial powers to the Court to " ... rescind of a party .... the absence made by it in Relations Rules gives on good cause being shown any order Court (Procedure) 3.5.1.12. the said provision Enjoining understanding party has a good cause for failing is very clear that the Court ought not to proceed 74 of the Labour Relations Act, the where a is section to attend. 3.5.1.13. Co v The Trustees of the African Businessmen's [1991] 14 MLR 413 (HC) the Court propounded was obliged appearance that it was a to appear in a superior in an inferior the court, Trading In Post Script Association matter of course that when counsel court at the same time as a scheduled proceedings should latter Court, where the order was obtained, seat to those before a superior forum, should therefore in the judges in this instance have taken a back be adjourned. "The proceedings before this Celcom Limited v. Davie Huwa and Others Kenyatta J. Nyirenda, Chambers. order made The conduct in the absence on that day was reason enough to set aside the of a party". "Indeed counsel adjourned as a matter of course" it is a rule or principle is appearing in a superior court proceedings and etiquette in inferior that where are courts of practice 3. 5.1.14. It is therefore an order of stay should that there is merit in the Appellant's be granted submission " of success. The Appeal has chances submitted that to get a full appreciation In trying prejudice the possible it might be useful granted, Skeleton Arguments: to be suffered of the arguments by Counsel by the Respondent if a stay order is not Gondwe regarding to set out in full paragraph 3.5.2 of the Respondent's "3.5.2.1Celcom Limited Respondents has not fully rolled as the company resigned out. It is in its beginning was going through financial stage. The problems. 3. 5. 2. 2 Paying huge sum of money, the judgement debt, will ruin the Appellant. 3. 5. 2. 3 Furthermore, the Respondents will not be able to pay back the judgm ent debt in They are impecunious. is successful. the event that the appeal 3. 5. 2.4 The foregoing are special Order for Stay of execution circumstances pending appeal. rendering necessary the granting of the 3.5.2.5 verily believes The Appellant recovering Appellant nearly the1udgement sum that recovery impossible. that there will be no reasonable to MK47,462,380.48. totalling prospects of the It is the belief of will be succeeds of this sum in the event that the appeal " circumstances warranting against submitted has not shown how it would that (a) the a grant of suffer prejudice ( c) the Appellant's SC, on behalf of the Respondents, Chisanga has not shown or proven any special (b) the Appellant being appealed applications Counsel Appellant a stay of execution, should the judgment many interlocutory seeks to have the judgment judgment Appellant to the determination not consideration whether appellant's success appeal in the Respondents' being appealed in making its application of the application various and ( e) chances or not to grant a stay of execution These matters is minimal. likelihood under "ANALYSIS", and this is clearly suppressed were to be effected, in this case are proof that the Appellant merely the reason to contest ( d) the abuse of court process, facts that are very material of an appeal are but, in any case, the stayed without a genuine are elaborated succeeding Arguments, as follows: Skeleton against on "4.1 Principles on awarding/denying Stay of Execution: Celcom Limited v. Davie Huwa and Others Kenyatta J. Nyirenda, 4.1.1 Existence o(Specia/ Circumstances: 4.1.1.1. The appellant necessitating executed has not shown any special circumstances that this court's judgment on appeal should not be 4.l.1.2Between paragraphs of this application, circumstances in 17 and 24 of the appellant's affidavit any the appellant has not mentioned The appellant why but has not justified of the supporting the application. circumstances are special support special has simply mentioned those circumstances application. for the purposes 4.1.2 The Preiudice/Justice Test: 4.1. 2.1 The appellant its appeal executed, has not shown how exactly if the Respondents would be affected or prejudiced 4.l.2.20n the other hand, the Respondents damages were awarded in this able to enforce that judgment due These damages, being very rarely. to interest are amenable stays of execution. case in 2014 and have not been to the appellant's damages This implies that the Respondents litigation. action, that any stay of execution in industrial dilutes the amount of money would get at the end being.fruits of successful 4.l.2.3The result delivered while the A judgment is that continued in 2014 prejudices ppellant's appeal is being executed the Respondents successful not pre stay of execution of a judgment litigation judiced at all with the 4.1. 2. 4 Further, the appellant has only stated be able to pay back the damages if it be found on appeal awarded The Appellant were wrongly this assertion. evidence to support stay to justify its reasons of the party seeking will not that the Respondents that they any has. not brought The onus is always on the part the stay. for seeking 4.2 On Abuse of Court Process: 4. 2.1 The appellant is prosecuting an appeal against The !RC, using its discretion, use of its a court's to hear an proceeded own discretion. application had not given any reason without a party which was aware of the hearing but why it did not attend 4.2.2 In the process, between the two courts, for stay of execution applications 5th application only aim of the appellant indefinitel stayed y. just to stay execution. is to have the judgment has made 4 the appellant with this application being the It is clear that the main if not of October, Celcom Limited v. Davie Huwa and Others Kenyatta Nyirend�, J 4. 2. 3 Using processes of the Court to achieve ends like this is abuse of the court processes. 4.3 Suppression o(Material Facts: has suppressed in support In Paragraph it is alleged 4. 3. 1 In its affidavit material facts. stay of execution, the Court clerk and Counsel attend hering of the matter court has shows on page 3 of item 14 that the Court Clerk was not Gowa but rather a Ms. Seveni cause was given for the Respondent's not revealed the appellant 7 of the-Appellant's that the Appellant's Late Bakuwa that he was not going to which this late. The Appeal record and in fact the Court noted that no absence. this to the court. very application counsel alerted for The appellant has 4.3.2 Further, CT5 and page 3 of item number 14 of the Appeal Record court on 9th February, this court that 2015 where and they all agreed for all parties. Both before has also not revealed 2015 was convenient the appellant Gondwe attended Late Bakuwa was also in attendance Counsel Counsel that 16th February, exhibit will show that by 9th February, 2015 aware of 16th February, on the date. This has not been revealed. given by this suppression own or in conspiracy 2016. with the Respondents of material being The impression facts is that the Court Qn its chose 16th February, 2015 and were in fact okay with hearing all concerned were parties 4.4 Prospecls ofthe Appeal's Success: 4.4.1 The appellant is appealing against her discretion, and justifiabl y. the High Court agreeing that she did so the !RC Chairperson exercising 4.4.2 The question, was justified prima facie, to exercise is whether her decision. or not the !RC Chairperson 4.4.2.1 Was the Appellant's Counsel Aware of the Hearing 4.4.2.1.1 was aware of the as he was the one who had such date and in fact court when such date was Yes, Counsel hearing suggested attended agree. The practice parties they all check their diaries confirm that they are available will attend. is that where a date in court, are agreeing to and Celcom Limited v. Davie Huwa and Others Kenyatta J. Nyirenda, 4.4.2.2. Was Appellant's Counsel's Excuse Valid: 4.4.2.2.1 had already Counsel, 16th February, when he 2015 as the was its application 2014 and the Appellant's served it on before <jh February, No. Appellant's accepted date of hearing well aware that he had another matter on the same day. The notice of appeal of the High Court exhibited as CTG2 was issued on 4'h November, Counsel other lawyers 2015 when the 16th February, 2016 date was being agreed. It is clear was aware that at that time, Counsel Lawyer in that the other practicing the firm, Zwelithini would handle one of the matters while Counsel Lusungu Gondwe would handle the other matter. Indeed if the matter was too to complicated handle, that of sending a Counsel, Lawyer to at least attend the court of any such developments chose to merely for Mr. Chipembere it smacks of carelessness Chipembere, and advise the court. instead ignore 4.4.2.2.2 succeeding on appeal The chances appear slim. 4.4.2.2.3 of an appeal are · not considerations In any case, chances succeeding whether execution. or not to grant a stay of " Analysis I have carefully perused before me, including listened to their counsel's the affidavits and skeletal oral submissions. all documents on the Court file relating arguments to the application and filed by the parties, The legal principles of execution of judgment the Court does not make a practice pending appeal of depriving for a stay an application rule is that The general of the fruits litigant which guide a court when considering a successful are very clear. of Celcom Limited v. Davie Huwa and Others Kenyatta Nyirenda, J. see J. Z. U. Tembo v. Gwanda Chakuamba, his or her litigation: Re Annot Lyle (1886) 11 PD 114. This position has been restated by the Malawi Court of Appeal in Dangwa and Another v. Banda [1993) and Mike Supreme the fact Appel & Gatto v. Saulosi d his or her right to appeal to a higher Court does not mean that a party has exercise that the judg Chilima, [2013) MLR 231, MSCA. Therefore, ment appealed again st must be stayed: see Orde supra, r 59, rule 13 of RSC. if nugatory: would be rendered is always on the applicant: see Wilson v. Church (No. 2) (1879) 12 MLR 377, the warranting Limited [2005) circumstances a stay see also Mhango v. Blantyre Land and However, the Court is most likely going to grant a stay where the appeal, successful, Ch D 454. In Press Corporation v Cane Products court emphasized that the burden to show special of execution Agency Limited 10 MLR 55 and Barker v. Lavery (1885) Estate needs to demonstrate He or she, therefore circumstances in favour of granting a stay. Further, a Court will order stay of execution which could not be compensated Evidence or facts must be presented the positio n: see National Appeal Number 6 of 2005 (unreported). whether be assessed on its facts and merits, 16(1) MLR 394. 59/13/1 of the RSC. assess to the Court in order for it to properly MSCA Civil At the end of the day the questjon of the Court and each case must pending appeal when it is satisfied that the applicant Bank of Malawi t/a Nyala Investments, or not to grant a stay is in the discretion Nyasulu v. Malawi Railways to the Court that there are special See paragraph would suffer loss in damages: Limited [1993] 14 QBD 769. of clear. The Defendant The law is crystal will not be able to pay back the damages awarded to it. In Anti-corruption Bureau v. Atupele Properties February 2007), Tambala JA (Rtd), made the following Ltd, MSCA Appeal Case No. 27 of 2005 (1st bears the onus to prove that the Plaintiff pertinent observations: of the Court. Secondly with the right of a successful party to that the would be unable to pay back the is within the discretion it [stay of execution} rule is that the Court shall not interfere "First general enjoy the fruits of litigation. Third money then a stay may be Justified. a stay even where the respondent oppressive. falls within back. The duty lies on the applicant back." -[Emphasis The bottom line is that the applicant the exceptions. It is not for the respondent to establish by underlining where a respondent Lastly, is impecunious supplied] the court would still if the stay would be utterly must demonstrate to refuse have discretion and unjust that the respondent to demonstrate the respondent's lack to pay capacity to pay o{capacity by the Defendant The ground advanced Defendant has failed to discharge lacks capacity read the Appellant's Affidavit to pay back compensation and all I see are mere that may be paid to it. I have read and re­ assertions not backed by the burden of demonstrating has to fall by the wayside the because that the Plaintiff Celcom Limited v. Davie Huwa and Others Kenyatta J. Nyirenda, evidence. In this regard, dicta by Mkandawire, MBC (1999) MLR 134 at pages 135 and 136: it may not be out of place to quote at lengthy from the J., as he then was, in Khoza t/a Parre Communications v. that an appeal is not a stay of execution and the court of depriving that a Court should further ,r: .. the plaintiff has submitted should not make the practice judgment. He submits supra) exceptional Specialists (unreported). there was no affidavit. plaintiff Ltd vs Bridge Shipping In the present circumstances will not be able to pay back the money In that case the Court dismissed (Malawi) have been shown. He cited the case of Venetian 208 of 1984 to stay execution because that the but the assertion has not been substantiated. Limited the application case, there is an affidavit, Civil Cause No. Blind a successful litigant of the fruits of its not order (sic) a stay when (Khoza, as stipulated under Order 59/13 of the Rules of the Supreme Court of as a stay and the court does not make a practice up funds to which he is and locking a successful litigant of fruits of his litigant principle The general is that an appeal does not operate depriving prima facie entitled. so. Where the appeal that a stay will be granted prospects reasonable -see Baker vs Lavery succeeding give good reasons ofrecovering is against The court may however order that there are good reasons an award of damages, only when the appellant satisfies of his recovering them in (Khoza, the long-established for doing is practice the court that there will be no supra) the event the appeal to why he believes that once the damages [1845 J 14 QBD 769 CA. This requires the appellant are paid, there is no prospect them in the event ofthe appeal succeeding. In the present supported Selborne case, all the defendant The judgment briefjudgment. by any facts. LC said in his which is not has done is to make a bare assertion Lord is the case of Baker v Lavery is very short. "The defendant ought to have been adduced unsuccessful should be before the House of lords. " is not entitled to have the application to show that the plaintiff granted as a matter would be unable to repay the costs ifhe of course. Evidence Venetian Blind Specialist v Bridge Shipping (Malawi) Laverry, In the case of Baker v (supra) Limited support of the application. which there is no affidavit nothing. In both cases, circumstances special are paid to the plaintift succeeding. circumstances " -Emphasis and The Anoo v Lycle (] 886) 11 PD 114 no affidavit But i{it may asked: what is the difference and a case in which there is an affidavit was made in a case in which tells you between the application must (ail because no good reasons or no special have been given why I must depart have been given a court is entitled ftom the general principle. to assume that i(the damages Where no he will be able to pay back in the event of the appeal by underlining supplied by the Appellant Just as was the case in Khoza t/a Parre Communications allegation money has not been substantiated. conjectures, decisions the burden Appellant has that the Respondents suppositions, failed to discharge on inferences, the v. MBC, supra, will not be able to pay back the The Court cannot be expected on it by the law to establish etc. In the premises, to base its the placed Celcom Limited v. Davie Huwa and Others Kenyatta J. Nyirenda, that the Respondents appeal Appellant's succeeding. lack the capacity to repay the money m the event of the it will be noted that I have hitherto not commented on the contention that its intended appeal has high chances as skirting Before resting, Defendant's way should the Court be regarded to put a judgment on the grounds applications in Chidzankufa v. Nedbank Malawi Ltd (2) [2008] Lanjesi & Others v. Joshua Chisa Mbele, HC/PR Civil Cause 1 of 2014 (unreported). at page 6, as follows: In of appeal set out in the Notice of Appeal. given to invariably follow the wise counsel of success. the issue. I have deliberately opted not In the latter case, my brother I am inclined J, addressed Judge, Katsala of this nature, MLR (Com) 178 and Davies In no the issue, as such the judgment "All that the defendant succeed 20 grounds of appeal and the reliefs Obviously, these are irrelevant he were to state a million waste of time, because application against appealed demonstration said in the Chidzankufa is full of rubbish of lack of knowledge of this nature. case (supra) has done is to state that he is optimistic that his appeal will must be stayed. he expects He has gone to great length to get from the Supreme to set out his Court of Appeal. in as far as the present application grounds of appeal, grounds of appeal are not one of the considerations that the judgm ent in my view, it would still In other words, trying to demonstrate be irrelevant Even if is concerned. and a in an and will be reversed on appeal is pointless the application governing and a clear .. As was of the principles at 182: firstly, tpmptation secondly, like that before that the judgment such an exercise which temptation to a judge in my situation, would be to try to demonstrate me. In other words, it does not lie within thinks. But I will not fall into such temptation "The obvious costs, Plaintiff Court to defend its own judgment, application in discrediting defend or indeed to join forces with the plaintiff whether the Plaintiff's as is prophesied it will fail, as alleged labouring of stay pending there are prospects The words ofChatsika come to mind. readily at all I have to suppress as the is not as hollow and/or baseless it is not the duty of the because is not part of the Court's tasks on an to attempt to saying So without himself or that it is my view that the Plaintiff for an order The fact that succeed in its submissions, of the principles is that govern an application appeal will indeed by the defendant the judgment. by the Plaintiff There is a very simple answer to the Plaintiff's v AR Osman [1993} 16(1) MLR 400 at 403, J, as he then was, in Nyirenda of the appeal succeeding is not a ground upon which a stay can be granted. misconception under a serious my province argument. appeal. 'A judgment of a Court of competent jurisdiction enforceable regardless of the fact that there are good remains grounds that an appeal against the judgment will be successfal. ' The Plaintiff's affidavit any way helpful to his application. and submissions in Clearly, so far as they purport this point has no merit. " to assert this point are not in What else can I say? Is it not therefore from the pronouncements surprising can still the defendant despite raise the same argument?" that, today, Courts, such unequivocal Celcom limited v. Davie Huwa and Others Kenyatta J. Nyirenda, Conclusion has not shown any special circumstances The Appellant to warrant an order staying execution of an order of this Court dated 9th January an, appeal by the Appellants t the application of 2017 pending o the Supreme Court of for a Stay Order is dismissed with costs to the Respondents. the granting Appeal. In the circumstances, Pronounced in Court this 23rd day of May 2017 at Blantyre Malawi. in the Republic of Kenyatta JUDGE Nyirenda I - 16