China Jiangxi Construction Corporation (Zambia) Limited v Arthur Kunsanama (Suing as Administrator of the Estate of the Late Baird Maurice Kunsanama) and Anor (CAZ/08/251/2018) [2019] ZMCA 375 (10 July 2019)

.-----~.~ .. --u-/-. ·rop /08/251/2018 IN THE COURT OF APPEAL OF ·~• . .,...., ... ..,. HOLDEN AT LUSAKA (Civil Jurisdiction) , 'l ·-.~ U JLJ1.. 2G79 .. --..;~:... .... ~ ... BETWEEN: CHINA JIANGXI CONSTRUCTION CORPORATION APPELLANT (ZAMBIA) LIMITED AND ARTHUR KUNSANAMA (Suing as an Administrator of 18 T RESPONDENT The Estate of Late Baird Maurice Kunsaunama) ROAD DEVELOPMENT AGENCY 2ND RESPONDENT Coram : M Kondolo S. C. JA For the Appellant : Mr. C Sianondo of Messrs Malambo & Co. For the Respondents : Mrs. K Kabalata of Messrs Chalwe & Kabalata Legal Practitioners RULING STATUTES REFERRED TO: 1. Order 59 Rule 13 (1) (A) The Supreme Court Practice (Whitebook) 1999 Edition 2. Order 10 (5) Court of Appeal Rules, Statutory Instrument No. 65 of 3. Public Roads Act, No. 12 of 2002 4 . Order 5, High Court Rules, Chapter 27, Laws of Zambia Page 2 of 13 CASES REFERRED TO: 1. Nyampala Safaris Zambia Limited & Others Vs ZAWA SCZ/8/179/2003 2. Sonny Paul Mulenga & Vismer Mulenga (Both Personally & Practicing as SP Mulenga International) & Chainama Hotels Limited & Elephants Head Hotel Limited v Investrust Merchant Bank Limited (1999) ZR 101 3. Paul Roland Harrison -v- The Attorney General 1993 SJ 58 4. Zambia Revenue Authority v Post Newspapers Limited SCZ/18/2016 This ruling is with resp ect to two applications, namely; 1 . An application for a Stay of Execution Pending Appeal made pursuant to Order 59 Rule 13 (1) (A) RSC1 as read with Order 10 (SJ CAZ2. 2. An application for an Order of Payment into Court pursuant to Order VII, Rule 1 and 2 CAZ and Order 22 Rule 1 RSC. Th e above a pplications arise from a Judgem en t on assessment by the Deputy Registrar dated 24th September, 2018. In the lower Court the Appellant was the 1s t Defendant, the 1st Respondent was the Plaintiff and the 2 nd Respondent was the 2 nd Defen dant. Th e a pplication for Stay of Execution is by the Appe llant a nd the application for payment into court is by the 2 nd Respond ent. 1 Order 59 Rule 13 (1) (A) The Supreme Court Practice (Whitebook) 1999 Edition 2 Order 10 (SJ Court of Appeal Rules, Statutory Instrument No. 65 of 2016 Page 3 of 13 The brief background is that the 2nd Respondent engaged the Appellant to carry out some roadworks and in so-doing, the Appellant trespassed on the 1st Respondents land and was accused of illega lly excavating and removing gravel and leaving huge pits. The 1st Respondent sought compensation and ended up commencing process against the Appellant and the 2nd Respondent. The matter proceeded to assessment which resulted in a ruling granting the 1st Respondent payment of the sum of K290,000 plus interest and costs of which 60% would be recovered from the Appellant and 40% from the 2 nd Respondent. The Appellant filed a Notice of Appeal and applied for a Stay of execution before the trial Court and the application was refused. An application for stay was made before this Court and a n ex parte order was granted on 19th November, 2019 pending an inter partes hearing. The 2 n d Respondent neither appealed nor cross-appealed. When the m ater came up for the inter partes hearing both parties indicated that they would rely on the affidavits and skeleton arguments filed on behalf of their respective clients augmented by viva voce submissions. In its skeleton arguments in response to the application for a Stay of Execution the 1st Respondent raised an argument to the effect that the appeal was improperly before the court. It was pointed out that contrary to the Page 4 of 13 provisions of Order 10 Rule (3) (3) CAZ3 , the Notice of Appeal did not s pecify which parts of the judgement were being appealed and that a lone was fatal to this appeal because the provision was couched in mandatory wording. Counsel for the Appellant reacted by stating that the grounds of appeal were very categorical with regard to which pa rts of the judgement were being appealed a nd it was not n ecessary to specify each and every part of the judgement that was being appealed. I decided to conside r this issue first becau se it could have, very well, been presented as an a pplication in limine, in tandem with the provisions of Order 40A, RSC4 • This is b ecau se a decision in favour of th e 1s t Responde nt on this issue would r esult in the appeal being dismissed at that s tage. I h ave considered the arguments of the parties on that score and I note that the notice of appeal filed by the Appellant states that the Respondent; " . . . . . . . . . . intends to appeal to the Court of Appeal against the judgement on the basis stated in the Memorandum of Appeal." In m y view, there was nothing wrong with the notice of appeal indicating that the parts of the judgem e nt being app ealed would be as stated in the memorandum of app eal. The argum e nt th at the appeal should be dismissed on this score is therefore refu sed. 3 Order 10 Rule (3) (3 ) Court of Appeal Rules, Statutory Instrument No.65 of 2016 4 Ord er 40A, The Suprem e Court Practice (White B ook}, 1999 Edition Page 5 of 13 I now revert to the arguments on the remaining issues under the application for a stay of execution. Learned counsel for the Appellant submitted that the ex parte order should be confirmed because if it was not granted the appeal would be rendered nugatory. It was also submitted that the Grounds of Appeal set out in the Notice of Appeal showed that the appeal had high prospects of success and the Appellant would suffer economic ruin in the event that the Appeal is successful and the judgement would have already bee n perfected. It was pointed out that the 1st Respondent would suffer no prejudice because the judgement had granted payment of interest which would not abate until the appeal was deter mined. In supporting the a rgument that the appeal had good prospects of success it was submitted that the lower court had given awards whic h were contrary to k ey provisions in the Public Roads Act5 and particularly section 48 (1) (4) (7) which stipulated that where the land encroach ed on was less than 1 % of the total land encroach ed upon, no compensation was d u e. He added that section 58 provided that where compensation was due, it was to be paid by the Road Development Agency and not the contractor. Learned counsel for t he Respondent replied by stating that the arguments advanced by the Appellants counsel were not p leaded before the lower court and further, tha t the p a rties had appeared before the Deputy Registrar on the basis of a Consent Order under which liability was not 5 Public Roads Act, No.12 of 2 002 disputed. It was further pointed out that, during the proceedings in the lower • court, the Appellant did not file any affidavits challenging those filed by the Appellant. Page 6 of 13 It was opined that the trial court made a balanced evaluation of the evidence because even though the 1st Respondent had claimed K800,000 he was only awarded ZK290,000. The case of Paul Roland Harrison v The Attorney General6 was cited in which it was laid down that a court can only interfere with an assessment of damages if the facts were misapprehended or the law was misapplied. With regard to merits of the appeal a dvanced by the Appellant with regard to the provisions of the Public Roads Act7, it was submitted that the lower court clearly stated that the cited provisions were inapplicable because the road under construction was a District Road and in terms of section 11 of the Act8 it could only be managed by the local authority responsible for the area where the road was located. It was argued that the Appellant could not rely on the cited provision s beca use it had provided no evidence to prove that the subject road was within the jurisdiction of the 2nct Respondent. The 1st Respondent prayed that the application be dismissed because the appeal has little or no prospects of success and that allowing the application 6 Paul Roland Ham·son -v- The Attorney General 1993 SJ 5 8 7 Ibid 5 s Section 11, Ibid would prejudice the 1st Respondent becau s e the m atter has been in Court for • a long time and h e is b eing denied the fruits of his judge ment. Page 7 of 13 The Appellant r eplied stating tha t no a ffidavit in opposition was filed in the lower Court b ecause r eliance was placed on legal argum ents specifically on the point of law that there is no compensation due if le ss than 1 % of the land has been a ffected. Counsel referred to Order 5 HCR9 which prohibits swearing on points of law. The Appellant accepted that the Appellant h a d not d e nied liability. The argume nt, however , was that no actual damage was suffered meaning that only nomina l damages should h ave been awarded to the 1st Respondent and to that end the Appellant had proposed nominal da m ages of K500. It was submitted that the a rgumen t that the 2 n d Respondent had no jurisdiction was self-defeating becau se the 1st Respondents themselves sued the 2nd Responde nt who had a contract with the Appellant. Counsel for the Appellant a rgued t h a t even though the Deputy Registrar held that the 1st Respondent was n ever consulted by the Appellant b efor e entering upon his land, the said argument was not a dvanced by the 1st Respondent before the High Court judge a nd tha t the Deputy Registrar could not innova te wh a t the judge didn't give . 9 Order 5, High Cour t Rules, Chapter 27, Laws of Zambia • Page 8 of 13 According to counsel for the Appellant the Sonn y Mulenga Case was of little help because in that case the quantum was agreed, quite u nlike in this case. On that basis it was prayed that th e stay of execution be granted because th e appeal has good prospects of success. I h ave considered the process filed by the parties as well as their written and viva voce submissions. It is trite law that an Appeal does not op erate as a stay of execution and the parameters on when a n d when n ot to grant a stay of execution are well established by case law. In the case of Sonny Paul Mulenga & Vismer Mulenga (Both Personally & Practicing as SP Mulenga International) & Chainama Hotels Limited & Elephants Head Hotel Limited and Investrust Merchant Bank Limited it was h eld as follows; "A court must be persuaded that it is desirable, necessary and just to stay a judgment pending appeal. The successful party should be denied immediate enjoyment of a judgment only on good and sufficient grounds . . . in exercising its discretion whether to grant a stay or not, the court is entitled to preview the prospects of the proposed appeal ... " In Nyampala Safaris Zambia Limited & Others v ZAWA & Others 10 the Su preme Court said that an application for a stay of execution, "must therefore clearly demonstrate the basis on which a stay s hould be granted", lO Nyampala Safaris Zambia Limited & Others Vs ZA WA SCZ/ 8/ 179/ 2003 because it has the effect of denying a successful litigant the fruit of his • Judgment. Page 9 of 13 Stays of execution are discretionary remedies and therefore encapsulated by the general principles that guide discretionary relief; and, prime amongst those is that Stays will only be granted where there are good and convincing reasons. In the 2016 case of Zambia Revenue Authority v Post Newspapers Limited11 the Supreme Court pronounced yet again that a successful party should not be denied immediate enjoyment of a Judgment unless there are good and sufficient grounds and that the Court is entitled to preview the prospects of success. The Court further stated that where there is money to be paid the Applicant must show that there are no reasonable prospects of recovering the money in the event of a successful appeal. In order to determine the prospects of success I have peaked at the merits of the appeal. The argument by the Appellant that no compensation was due at all appears to be a non-argument in the face of the fact that liability was accepted leaving only the question of quantum. The Appellant has, however, advanced a somewhat convincing argument that only nominal damages should have been awarded and that is a position which an appellate court would have to consider in greater detail. Ground 4 in the Memorandum of Appeal states that the Deputy Registrar erred both in law and in fact in apportionin g 60% and 40% without a ssigning any rea son for the same [ apportioning liability between the Appellant and the 11 Zambia Revenue Authority v Post Newspapers Limited- SCZ/ 18/ 2016 I Page 10 of 13 2 nd Defendant]. On the face of it, this ground also appears to have good prospects of success. In the premises, the ex parte order of stay of execu tion granted on 27 th November, 2018 is hereby confirmed and costs are granted to the Appellant. I now turn to the 2 n d Respondents application for payment into Court under Order VII, Rule 1 and 2 CAZ and Order 22 Rule 1 RSC. According to the affidavit in support of the application filed by Mukupa Kapasa-Mukonde on 6 th December , 2018, the essence of the application was that the 2 nd Respondent was desirous of paying the 1st Respondent the sums awarded by the lower court but wished to pay the sums into court. The reason provided for seeking an order for p ayment into Court was that if the 1st Respondent was paid the judgement sum, he would not be in a position to reimburse the 2 nd Respondent because it was believed that he was of humble means. It was therefore necessary for the Court to hold the money until the appeal was concluded. The Affidavit in Opposition sworn by Arthur Kunsanama and filed on 11 th December disputed that the 1st Res pondent was of humble means and exhibited proof of ownership of r eal estate valued in excess of Kl,000,000. It was further attested that the 2 nd Respondent was attempting to obtain a Stay of Execution using the back door and that it was clear the 2 nd Responden t simply didn't have the full judgement sum because the amount proposed to be paid into court did n ot include the interest due. • Counsel for the 1st Respondent reitera ted that the 2nd Respondent was indirectly attempting to obtain a stay of execution. It was submitted that the Page 11 of 13 principles espoused in the Nyampala Safari's Limited Case should apply. It was emphasised that the 2nd Respondent had not appealed against the judgement and therefore had no leg to stand on in applying to stay the judgement. Counsel further pointed out that the 2 nd Respondents conclusion that the 1st Respondent was a man of humble means was not supported by any proof and was based on hearsay whilst the 1st Respondent h ad provided evidence that he owned property of substantial value. Counsel concluded by stating that in its defence filed in the lower court, the 2 n d Defendant had admitted the claim against it. The 2 n d Respondent filed an affidavit in response stating, in essence, that the 2 n d Defendant was to indemnified by the Appellant in the equivalent sum and that the ex parte stay of execution gr a nted against to the Appellant covered the entire judgement and not just the Appellant. It was further attested that the 2 nd Respondent had enough money to cover the judgement sum but did not include the interest in the proposal because that component had not yet been calcula ted and agreed by the parties. That refusing the application would render the appeal an academic exercise . Counsel's submissions emphasized the aspect that the 1st Respondent was indemnified by the Appella nt and that should the court take the position that the 1st Respondent is not of humble means the court should order that, in the event that the appeal su cceeds, the 1st Defendant who was suing as an administrator of a deceased's esta te s hould be held personally liable . Page 12 of 13 I h ave considered the affidavits filed by t h e parties and the argumen ts advanced for and against the application and h ave found it necessary to reproduce Order 22 Rule 1 Rsc12 _ Order 22 Rule 1 ( 1) reads as follows; Payment into Court (0.22 r. 1) (1) In an action for a debt or damages any Defendant may at any time pay into Court a sum of money in satisfaction of the cause of action in respect of which the plaintiff claims or, where two or more causes of action are joined in the action, a sum of money in satisfaction of any or all of those causes of action. Order 22/1/2 Nature of payment in - "A payment into court is simply an offer to dispose of the claim on terms" ..... when a plaintiff accepts the amount paid in respect of the cause of action what happens is that the cause of action is settled, as if by payme nt under a compromise; but the conclusion of an action in this way is something quite different from its conclusion by a judgement. "the payment in implies no admission about the merits of action; there has been no adjudication on it, and therefore no estoppel is created." There is however nothing contractual about payment into Court; it is wholly a procedural matter and has no true analogy to a settlement arranged between the parties out of Court .... " 12 Order 22 Rule 1, The Supreme Court Practice (Whitebook), 1999 Edition I I Page 13 of 13 It appears that both parties misapprehended the purpose of payment into court under Order 22 Rule 1 RSC (supra). Counsel for the 2nd Respondent approached the application as though it were some form of security held by the Court to be disbursed later depending on the outcome of the main appeal. Counsel for the 1s t Respondent characterized its use, in the circumstances of this case as a weapon stealthily deployed to mimic and obtain relief as though it were an application for a stay of execution. To begin with, the 1st Respondent applied for this relief by way of summons when the correct way to proceed was by filing a Notice as provided under the Order. Of prime importance is that payment into Court under Order 22 RSC is a voluntary payment paid into court, before judgement, by a party wishing to settle either a claim for a debt or for damages. and which offer the Plaintiff can either accept or reject. The Order cannot be d eployed in the manner envisaged by the 2nct Respondent. The application for payment into Court is consequently dismissed with costs to the 1st Defendant. Dated at Lusaka this 10 th day of July, 2019. c:::=::----:::---, ----- M . M . KONDOLO, SC COURT OF APPEAL JUDGE