Charles Mushitu and Sydney Chituta v KBF and Partners (App No. 69 of 2021; CAZ/08/439/2021) [2022] ZMCA 137 (5 September 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) App No. 69 of 202 1 CAZ/ 08/ 439/202 1 BETWEEN: CHARLES MUSHITU SYDNEY CHITUTA AND c0~ r APPEAL ' - \':J'<>\,\ .r.~'.\ti , C\\[\\. . ~ ~5G1Jb ~ 1 \; l5t Applicant 2nd Applicant KBF AND PARTNERS Respon den t CORAM: Kondolo, Siavwapa and Sharpe-Phiri, JJA on 19th May, 2022, 10th August, 2022 and 5 th September, 2022 For the Appella n ts: For the Responden t : No appearance No appearance RULING SHARPE-PHIRI, JA, delivered the Ruling of the Court Legislation referred to: 1. The Court of Appeal Act No. 7 of2016 2. The Court of Appeal Rules, SI No. 65 of 2016. 3. The Rules of the Supreme Court, 1999 Edition, White Book ·' Authorities refer red to: 1. S. Musonda v Hyperfood Products Limited (1999) ZR 124 2. Food Reserve Agency v Zambia Cooperative Federation, (SCZ Appeal No. 125 of 1998) 3. S. P Mulenga and Others v Investrust Merchant B ank Limited SCZ No. 15 of 4. Mulenga Ch ilufya Sata v Chanda Chimba III and Others (201 1) ZR 445 5. Nyampala Safaris (Z) Limited and 4 others v Zambia Wild life Authority and 6 others SCZ/ 8/ 179/ 2003 (unreported) Rl 1.0 INTRODUCTION 1.1 The 1st and 2 n d applicants brought this motion on 10th December 2021 pursuant to Section 9 (b) of the Court of Appeal Act and Order X Rule 8 of the Court of Appeal Rules . 1.2 By this motion, the applicants seek to vary, discharge, or reverse a decision of a single Judge of this Court of 7 th December 2021 in which she declined to grant a stay of execution of the ruling ofWanjelani, J of the High Court made on 10th September 2021. 1.3 The motion was supported by a joint affidavit sworn by both applicants. 2 .0 BACKGROUND 2.1 The brief background of the matter is that the respondent (plaintiff in the lower Court) sued the 1s t and 2nd applicants in the High Court for Zambia as defendants under cause number 2021/HP/ 0098. Judgment on admission was entered in favour of the respondent for the sum of K108,500 plus costs. 2.2 The 1st and 2nd applicants brought an application to pay the judgment debt in instalments pursuant to Order 36, Rule 9 of the High Court Rules premised on the grounds that they R2 had several other liabilities and obligations and therefore were unable to settle the judgment sum at once. 2.3 They requested the Court to authorize payment of the debt in twelve equal monthly instalments. The applicants relied on the case of S. Musonda v Hyperfood Products Limited1 to support their application. 2.4 Opposing the application, the respondent, through its Managing Partner, Kelvin Bwalya, insisted that the applicants had other sources of income to clear the debt and had not in any event demonstrated their inability to clear the debt by revealing their income or value of their property. 2.5 The respondent argued that the application was unreasonable as the debt was outstanding from 2013 and urged the Court not to allow more than four monthly instalments as it was being denied the enjoyment of the fruits of its judgment. 2.6 Having considered the evidence and arguments of the parties, the learned Judge in the Court below found that the respondent's claim arose from an undisputed legal bill rendered to the applicants in 2013, which remained unpaid for over seven years. R3 2.7 She emphasized that the remedy sought by the applicants to settle a judgment sum in instalments was discretionary, and required the applicants to demonstrate, through the disclosure of their sources of incomes and expenses, their inability to pay the debt at once. 2.8 Although, the learned Judge found that the applicants had not divulged information of the property they owned, or of their full liabilities as required under Order 47 Rule 1(3) of the Rules of the Supreme Court, she allowed the application to pay the judgment sum in four monthly instalments commencing end of October 2021 but ordered that the entire debt would become payable upon failure to pay any one instalment. 2.9 The applicants subsequently filed two applications, namely: for review out of time and for a stay of execution pending the determination thereof. Having considered the application, the learned Judge in the Court below dismissed the application for a stay of execution on 14th October 2021 having believed it did not disclose any real prospects of success. 2 .10 Being dissatisfied with this ruling, the applicants lodged an appeal to this Court. The applicants then renewed the application for a stay before a single Judge of this Court on 22nd October 2021. R4 3.0 APPLICATION BEFORE A SINGLE JUDGE 3.1 An application was brought before a single Judge of this Court for an order to set aside the ruling of 14th October 2021 and to stay execution of the ruling of 10th September 2021. 3.2 In the said application, the applicants contended that their appeal to this Court has high prospects of success and that it would be rendered nugatory if a stay of execution was not allowed. They also contended that there was a threat of execution, which would occasion loss and damage to them. 3.3 After considering the application, the single Judge emphasized the principle that a successful party should not be deprived of the fruits of its judgment except for compelling reasons. She found that the applicants had not advanced compelling or special reasons to warrant the granting of a stay of execution of the ruling ofWajelani, J of 10th September 2021 and declined the application. 3.4 Being aggrieved by this decision of 7 th December 2021, the 1s t and 2nd applicants brought this motion to the full Court. 4.0 THE NOTICE OF MOTION BEFORE THIS COURT 4.1 By this Notice of Motion, the applicants seek to vary, discharge, or reverse the order of the single Judge made on R5 7 th December 2021. The basis of this application for a stay is that the appeal has a high prospect of success. 4 .2 The matter came up before the full Court on 19th May 2022 . The applicants sought an adjournment on the basis that the parties were exploring an ex-curia settlement. The matter was adjourned to 10th August 2022 . 4.3 On the return date, none of the parties or their counsel were in attendance as they had filed notices of non-appearance requesting that the matter be determined based on the filed heads of arguments. 5.0 ARGUMENTS IN SUPPORT 5.1 In their heads of argument, the applicants highlighted that they were seeking an order for a stay of execution of the ruling delivered by Wanjelani, J on 10th September 2021 in which she ordered them to pay the judgment sum of K108,000 in four equal instalments beginning October 2021 . 5.2 They contended that although they had filed an affidavit in reply in which they refuted the unsubstantiated affirmations of the respondent and showed that they had no means to settle the judgment sum as they had other financial obligations and were not in gainful employment, the Judge failed to take their evidence into consideration. R6 5.3 Desiring to seek justice against this ruling, the applicants sought leave to file a review application out of time and also sought a stay of execution which had been denied. 5.4 The applicants cited several authorities such as the case of Food Reserve Agency v Zambia Cooperative Federation2 , S. P Mulenga and Others v Investrust Merchant Bank Limited3 and Mulenga Chilufya Sata v Chanda Chimba III and Others4 to support their contention. 5.5 In those cases, the Lordships affirmed that a stay of execution will only be granted for good and compelling reasons and that in considering an application for a stay, a Court is entitled to preview the prospects of the appeal. 5.6 The applicants urged the Court to grant the stay of execution sought as their appeal would be rendered nugatory if stay is not granted. 6.0 ARGUMENTS OPPOSING THE MOTION 6.1 Opposing the motion, the respondent relied on the heads of argument filed on 2 n d August 2022 in which they also relied on numerous authorities for their contention that the Court ought not to grant a stay unless satisfied that there are good reasons for doing so. They referred to the case of S. P Mulenga and Others v Investrust Merchant Bank3 , where it was held that: R7 'In terms of our rules of Court, an appeal does not automatically operate as a stay of execution, and it is utterly pointless to ask for a stay solely because an appeal has been entered. More is required to be advanced to persuade the court below or this Court that it is desirable, necessary, and just to stay a judgment pending appeal. The successful party shoul~ be denied immediate enjoyment of a judgment only on good and sufficient grounds.' 6 .2 The respondent further submitted that the lack of understanding and lack of capacity were not factors to take into consideration when determining whether to grant a stay of execution. 6.3 The respondent concluded by contending that the applicants have not shown serious commitment to settle the debt, nor had they met the threshold as required by law to warrant a stay of execution being granted in their favour. They urged the Court to decline the motion with costs. 7.0 DECISION OF THIS COURT 7 . 1 We have carefully considered the motion and the arguments of the parties in this matter. R8 7 .2 By this motion, the applicants seek to vary, discharge, or reverse a decision of a single Judge in which she refused to grant a stay of execution on the basis that the applicants had failed to advance compelling reasons to warrant the grant of a stay. Section 9 (b) of the Court of Appeal Act under which this motion has been brought, empowers the Court to vary, discharge or reverse a decision of a single Judge of the Court if it deems fit. 7.3 The issue for determination is whether this Court should vary or reverse the decision of the single Judge and grant a stay of execution of the ruling of Wanjelani, J of 10th September 2021 . 7.4 Order 59, Rule 13 of the Rules of the Supreme Court provides guidance to the Court in determining what needs to be considered in granting an application for a stay thus: 'Neither the Court below nor the Court of Appeal will grant a stay unless satisfied that there are good reasons for doing so. But the Court is likely to grant a stay where the appeal would otherwise be rendered nugatory, or the appellant would suffer loss which could not be compensated in damages. The question whether or not to grant a stay is entirely in the discretion of the Court and the Court will grant it where the special circumstances of the case so require.' R9 7.5 Similarly, their Lordships of the Supreme Court made the following observations in the case of Nyampala Safaris Zambia Limited, and others v Zambia Wildlife Authority, and others5 : ''. A stay of execution is granted on good and convincing reasons. The rationale of this position is clear. Which is that a successful litigant should not be deprived of the fruits of litigation as a matter of course. The application must therefore clearly demonstrate the basis of which a stay should be granted." 7 .6 The foregoing authorities are instructive on the question of when to exercise discretion to grant a stay of execution. It is evident that an application of such nature should only be granted where special or compelling circumstances exist. 7. 7 It is trite law that there must be good and convincing reasons for the Court to order a stay of execution. Therefore, in considering the application before this Court, the question is whether there are compelling reasons to grant a stay of execution. 7.8 In the present case, the evidence shows that the debt due to the respondent by the applicants has been outstanding from 2013. Judgment was entered in favour of the respondent on 15th July 2021. RlO 7. 9 There is therefore no dispute that these monies are owing to the respondent by the 1st and 2 n d applicants. The issue in contention is the manner of payment of the judgment debt. 7 . 10 The applicants had applied to settle the debt in twelve monthly instalments, but in exercising her discretion on the application, the learned Judge ordered the debt to be paid in four equal monthly instalments instead. 7 . 11 Being aggrieved with this decision, the applicants mounted several applications; an application for special leave to review out of time; an appeal to the Court of appeal and a renewed application for a stay of execution. 7.12 The applicants contend that the learned Judge did not consider their contestation that they have the means to settle the debt sooner than the twelve-month period proposed. 7 .13 There is a mistaken belief on the part of the applicants, that they are entitled, as a matter of right, to a stay of execution or to an order to pay the judgment debt in instalments in the manner they deem fit. This is a misconception. The decision of whether to grant a stay of execution is discretionary. An applicant must demonstrate good and compelling reasons for a stay to be granted. 7 .14 In this case, the reasons advanced by the applicants that they do not have capacity to liquidate the debt at once is not Rll satisfactory reason to warrant the granting of a stay. The Supreme Court espoused in the Sonny Mulenga & Vismer Mulenga case that more is required to be advanced to persuade the court that it is desirable, necessary, and just to stay ajudgment pending appeal. The successful party should be denied immediate enjoyment of a judgment only on good and sufficient grounds. Therefore, if an act complained of is likely to cause grave prejudice to a party and there are compelling reasons why a judgment should not be enforced, a stay of execution may be granted. 7 .15 It is indisputable that the applicants are truly indebted to the respondent, judgment having been entered in July 2021 . The applicants have had a period of over 13 months to liquidate the debt, but according to the respondent the applicants have not made any instalment payments. 7 .16 Had the applicants been committed to regularly servicing this debt, they would have cleared their indebtedness to the respondent by now, but they have not. We therefore agree with the respondent that the applicants have not shown commitment to settling the debt, but instead have made many frivolous applications before the Courts. 7 .1 7 Based on the foregoing, we find that there are no special or compelling reasons to justify the granting of a stay of execution and denying the respondents enjoyment of the fruits of its judgment. R12 8.0 CONCLUSION 8.1 In the view we have taken, we find that this motion has no merit, and we dismiss it accordingly with costs to the respondent. 8 .2 The costs are to be agreed between the parties and to be paid forthwith and in default of agreement to be taxed. -2?: -----=z M. M. Kondolo COURT OF APPEAL JUDGE M. J Siavwapa COURT OF APPEAL JUDGE ~ . ck r- :A. Sharpe-Phi j COURT OF APPEAL JUDGE R13