Chartfield International (PVT) Limited v Zambia Seed Company Limited (1997/HP/2026) [1999] ZMHC 3 (16 September 1999)

.. • . • IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY AT LUSAKA (CIVIL JURISDICTION) BETWEEN: CHARTFIELD INTERNATIONAL (PVT) LIMITED Plaintiff AND ZAMBIA SEED COMPANY LIMITED Defendant BEFORE THE HONOURABLE MR. JUSTICE PETER CHITENGI IN CHAMBERS AT LUSAKA THIS 16TH DAY OF SEPTEMBER, 1999. For the Plaintiff: For the Defendant: Mr. Mutemwa Messrs Mutemwa chambers Mr. Matibini Messrs P. Matibini & Associates JUDGMENT Authorities referred to:- 1. 2. 3. 4. 5. Order 4711 RSC Linotyp - Hell - Finance Limited 1 W & R 321 Kabimba Vs Attonery- General SCZ Judgment No.19 of 1995 Wagner Vs Laubscher Brother a11d Compa11y Limited 1970 2 QB 313 at 317 Trinity (PVT) Limited Vs ZNCB Limited SCZ Judgment No.4 of 1997 On the 1 ih August, 1999 the Defendant took a Summons out of the Principal Registry seeking an Order to Stay the execution of the Judgment herein pending an action by the Defendant to impeach the consent Judgment entered into on the 20th October, 1997. The Defendant filed two Affidavits in Support of the Application sworn by its Advocate. The Plaintiff did not file an Affidavit in Opposition. But this does not mean that the Plaintiff does not oppose the application. The Plaintiffs in their submissions vehemently oppose the application As I observed in my earlier Judgment and as the Supreme Court in its Judgment also observed this case has a history which is not only long but also chequered. To put this matter in its proper perspective and for completeness it is necessary to repeat the history of this matter again. The Plaintiff commenced the• main action by Specially Endorsed Writ on 21 st August, 1997 claiming in all US Dollars 471,268.71. After service of the Especially Endorsed Writ a firm of Advocates rejoicing under the name and style of Banda and Watae entered Appearance on behalf of the Defendant. On 15th of September, 1997 the Plaintiff took out a Summons under Order 13 to be heard on the 29th September, 1997 before the Deputy Registrar. For reasons which do not appear from the record the Summons under Order 13 was not heard until 13th October, 1997 and in the meantime the Defendant had filed an Affidavit in Opposition. After hearing Counsel and considering the Affidavit evidence the Deputy Registrar granted the plaintiff leave to sign final Judgment in respect of USD 375,000 which was not in dispute and ordered that the disputed balance go to trial. Indeed the Deputy Registrar was entitled to Order so because the Affidavit in Support of the summons under Order 13 exhibited a document to that effect. On 11th November, 1997 the Plaintiff issued a precipe of Fieri Facias and on the same day obtain a Writ of Fieri Facias to levy execution. On 251h November, 1997 the Defendant obtained an ex-parte Order for stay of execution before the Deputy Registrar and Inter Parte hearing was set for 2th January, 1998 and it was so heard. On 13th February, 1998 the Deputy Registrar delivered Judgment confirming the stay of execution order but for 30 days only from the 11 th February, 1998 to 13th March, 1998 to enable tlie parties sort out the issue of interest. It seems the plaintiff was dissatisfied with the Deputy Registrar's decision staying execution and appealed to-a Judge at Chambers. For the purposes of this Judgment it is not necessary to recite the grounds of appeal. When the appeal came before me for hearing on 24th March, 1998 the parties agreed that the appeal be withdrawn and the stay of execution be set aside and that the Judgment debtor (the Defendant) pay 5% simple interest per month on the Judgment sum from 1st February, 197 to 20th October, 1997 and thereafter interest would be at 6% per annum until final payment. Each party bore its own costs for the appeal. I thought that that was the last time I would see this file on my table. I was wrong. On 3 1st March, 1998 the Plaintiff again issued precipe of Fieri Facies and on the same day obtained a Writ of Pieri Facies to levy execution this time for USD 240,960.94 and not USD 375,000.00 as in the Writ if Pieri Facies of 11th November, 1997. This means that by 31 st March 1998 the Defendant had paid USD 135,000.00. On 2nd April, 1996 the Defendant changed Advocates and appointed Messrs P. Matibini and Associates as their Advocates. This new firm accordingly filed Notice of Appointment on 2nd April, 1998. Messrs P. Matibini and Associates on the same day applied and obtained before the Deputy Registrar Stay of Execution pending an application that the Plaintiff rendered full account of the Defendant's Account. On 6th April, 1998 the Plaintiff applied ex parte to set aside the Stay granted by the Deputy Registrar for want of jurisdiction and I dissolved the stay. The following day the Defendant applied ex parte before me for stay of execution pending rendering of account by the Plaintiff Having regard to the history of this action I ordered that the application be heard Inter Parte on 8th April, 1998. On that day, Mr. Mutemwa intimated that he would not object to a temporary stay if the Defendant paid some money into the court. I agreed with Mr. Mutemwa, being of the view that the Defendant appeared not to be serious because the Judgment was obtained 9 months previously. I granted the Defendant a Stay on condition that the paid KlO Million into Court and paid the Sheriff's fees for the partial execution. On 6th May, 1998 heard I the Defendant's application for account. On 17th August I delivered Judgment dismissed the Defendant's application for account. The Defendant appealed to the Supreme Court against my decision and lost its appeal. In its Judgment the supreme Court said as a by the way that a consent Judgment can only be challenged by a fresh action and relying on this statement in ~e Judgement of the Supreme Court the Plaintiff has commenced action against the Plaintiff alleging, inter alia, mistake and/or misrepresentation. What the Defendant refers to as Consent Judgment of 20th October, 1997 is not a consent Judgment but a Judgment under Order 13 in respect of the sum of USD 375,000 which the Defendant from the documents on file admitted. No appeal has even been m~e against this Judgment. As I said in my earlier Judgment and as the Supreme Court said in its Judgment, there was no conceivable reason on which the Defendant would have appealed against the Judgment for USD 375,000, the Defendant having admitted owing that sum. As I have already said the Defendant filed two Affidavits in Support of this application. The sum and substance of these two Affidavits is ~at the Defendant has commenced an action impeaching what the Defendant calls Consent Judgment and that if this Judgment is executed then the action to impeach the Judgment will be rendered nugatory or academic. Mr. Matibini learned Counsel for the Defendant submitted that under Order 47/1 RSC(l) the Court has power to stay execution. A Stay can be granted if the Applicant will face ruin without the Stay: Linotyp- Hill- Finance Limited Vs Baker (2). If the judgment of USD 240,000 or K600 Million is executed before the trial of the action to challenge the judgment it would result in virtual closure of the company and spell disaster to the Company. Considerable inconvenience is a ground for granting Stay: Kabimba Vs Attorney General(3). In this case there is not only inconvenience but also total paralysis of the company if the Company succeeded at the trial because it would be difficult to reverse and restore the Defendant in its original position. A Stay does bot prejudice the Plaintiff in this case. In reply, Mr. Mutemwa submitted that in terms of Order 47 Rule 1 Sub Rule 2 Paragraphs 4 and 5 a distinction is made between considerations for Stay of Execution pending appeal and after final Judgment. A fresh action in terms of Paragraph 5 cited above is not a sufficient ground to warrant grant of a Stay Order: Wagner Vs Laubscher Brothers and Company limited(2) refers to Stay pending appeal which is not the issue in this case. The Kabimba Case(3) is irrelevant. The issues of ruin are applicable where the Defendant wants to pay by instalments, an avenue, which the Defendant does not want to explore. The Plaintiff cannot be deprived the fruits of his Judgment simply because the Defendant will suffer ruin or because a fresh action has been commenced against him. Mr. Matibini' s reaction to all this was that only the Judgment of the supreme Court cannot be stayed: Trinity Engineering (PVT) Limited Vs ZNCB Limited(5). In this case the Stay is not of Supreme Court Judgment but of this Court (High Court). There can be no application for payment by installments because liability is denied. The Plaintiff is not being deprived of the fruits of its Judgment. If the Plaintiff succeeded, it will be compensated by an award of interest. I have carefully considered the Affidavit evidence and submissions of Counsel and have perused the papers on file. I agree with Mr. Matibini that the Court has power under Order 47/1 RSC to Stay execution of Judgment or Order. But this Stay is only on the grounds provided by the Order itself. Leaving out what is not relevant to this case a Stay can be granted where the court is satisfied:- " 4 7 /1 1. - ( 1 )------- -------------------------------------------- ----- (a) that there are special circumstances which render it inexpedient to enforce the Judgment or Order; or (b) ---------------- --------------------" For the execution of the Judgment in this case to be stayed I must, therefore, be satisfied that there are special circumstances which make execution of the Judgment inexpedient. As Mr. Mutemwa has rightly submitted the fact that the Defendant has brought a cross action against the Plaintiff is not ordinarily enough reason to stay execution: Wagner (4). Mr. Matibini in his submissions and relying on a Statement in the case of Trinity Engineering (PVT)Limited(5) sought to bind and drive me to the holding that it is only a Supreme Court Judgment which can not be stayed. Of course that statement makes good law and sense because after the Supreme Court in Zambia there is no any other court above it. But I did not understand the case of Trinity Engineering (PVT) Limited to mean that execution of Judgment of Courts below the Supreme Court must in an cases be stayed. The Stay of execution of the Judgment will depend on the circumstances of each case. In this case, if the execution of the Judgment is to be stayed, it will be on the circumstances of this case and not because it is High Court Judgment. Citing the cases of Linotyp(2) and Kabimba(3), Mr. Matibini submitted that if the execution Judgment will lead to the Defendant suffering inconvenience and total disaster, it must be stayed. I must say here, as Mr. Mutemwa rightly submitted, that I do not see the relevance of the Kabimba Case(3) to this case. This case is not dealing with transfer but paying back what one owes another. I do not see how paying back what one owes should be an inconvenience. About total ruin. In the first place, the Linotyp case(2) one of the case Mr. Matibini heavily relies upon could not be found because the Weekly Law Reports available in the Library date back to 1953 only. There are no Weekly Law Reports for 1933. Be that as it may, I am firm in my mind and confident thatthe test whether a stay of Execution can be granted is the "special circumstances" test I already referred to. The issue readily is, therefore, whether the Defendant has shown special circumstances which make the execution of the judgment in this case in expedient. The Affidavits filed in Support of this application are, to stay the least of it, very scanty. The burden of these two Affidavits is simply that the Defendant has commenced an action against the Plaintiff, an issue I have already dealt with, and that if the judgment is . executed then the action commenced by the Defendant against the Plaintiff will be rendered an academic exercise or nugatory. This is not a special circumstance because it presupposes that if the Defendant paid the Judgment sum to the Plaintiff and the Defendant were to be successful in the action it has commenced against the Plaintiff the plaintiff will fail to pay back the money. There is no evidence whatever to the effect that the plaintiff is what is called a man of straw. There are submissions from Mr. Matibini that if the judgment is executed it will spell disaster to the Defendant. Unfortunately, as I have already said earlier on, the Defendant's Affidavits are scanty and devoid of material upon which I can make such a finding. In short these submissions are not supported by evidence. In any case the submissions that if the Judgment is executed the Plaintiff will suffer economic hardship totally ignore the interests of the Plaintiff. Indeed in his submissions Mr. Matibini made the bold statement that the stay will not prejudice the Plaintiff. I do not see how being kept out USD 240,000 or K600 Million as Mr. Matibini put it cannot prejudice the Plaintiff in its operations. All in all the Defendant has not shown any special circumstances to me for me to hold that it would be in-expedient to enforce the judgment now. I, accordingly, refuse the Defendants application to stay execution. In arriving at this conclusion, I have also borne in my mind the prospects of the Defendant's action against the Plaintiff succeeding. The Judgment the Defendant seeks to challenge on grounds of mistake and/or misrepresentation is in respect of an amount of money which the Defendant admitted owing and never appealed against it. The success of the Defendant in the action against the Plaintiff is therefore, not a foregone conclusion. Application for Stay refused with costs to the Plaintiff to be truced in default of agreement. DELIVERED IN CHAMBERS AT LUSAKA Tms 16TH DAY OF SEPTEMBER, 1999. 8