China State Construction Engineering Corporation Limited v FISD Limited Company (Civil Appeal 52 of 2021) [2021] MWSC 21 (10 November 2021)

IN THE SUPREME COURT OF APPEAL CIVIL APPEAL NO. 52 OF 2021 BETWEEN CHINA STATE CONSTRUCTION ENGINEERING CORPORATION LTD -- oo-- APPELLANT AND FISD LIMITED COMPANY------- RESPONDENT CORAM: HON. JUSTICE M. C. C. MKANDAWIRE JA Likongwe, Counsel for the Appellant Nankhuni/Mkwamba. Counsel for the Respondent G. Kumwenda, Court Interpreter | RULING 1. On 15" of September 2021, the High Court (Commercial Division-Lilongwe) delivered a ruling in favour of the Respondent whereby the Appellant was ordered to pay the Respondent the sum the Respondent claimed the equivalent in Malawi Kwacha terms of Two Million Dollars plus costs of the action. 2. On 21% September 2021 the Appellant filed with the Court below a notice and grounds of appeal pursuant to Order 111 Rule 2 of the Supreme Court of Appeal Rules. On the same day, the Appellant filed an ex-parte application for an order to pay judgment debt by instalments and staying execution pending appeal pursuant to Order 28 Rules 48 and 61 of the Court (High Court Civil Procedure) Rules 2017. 3. On 29" September 2021 the Appellant filed an ex-parte application for stay of execution pending appeal. This application was brought before the Honourable Justice Katsala JA. On that very day, the Honourable Justice of Appeal made the following order: “The application is granted and execution of the judgment is stayed pending the determination of an inter-parte application for stay of execution which must be filed and served within 14 days from the date of this order.” 4. In compliance of the said order, on 12" of October 2021, the appellant filed an inter-parte application supported by a comprehensive affidavit. 5. From the Appellant’s own affidavit from paragraph 29, it is admitted that the practice in the Supreme Court of Appeal is not to attend to applications of stay of execution before the High Court has dealt with the application. The Appellant has however urged this court to treat this case as a special case and has listed the reasons in paragraphs 29(a)-(h). In a nutshell the Appellant alleges the following: i) Serious irregularities due to breach of High Court Civil Procedure Rules. ii) Failure to conduct mediation as per the High Court Rules. iii) Case decided by the Court without hearing the parties yet there were several factual disputes in the affidavits. iv) Respondent being given preferential treatment by the Court in the way dates were being set down. v) The sum of USS2 million too huge if paid and will cause irreparable damage to the Appellant and that Sheriff fees too high if judgment executed before appeal is heard. 6. This application is vehemently opposed by the Respondent. There is filed a comprehensive affidavit in opposition deponed by Mr Gift Nankhuni who is counsel for the Respondent. 7. The Respondent admits what is contained in paragraphs 3,4,5,7, 8, 9, 10, 11, 12, 13, 14, 16, 18, 19 and 20. Paragraph 15 is denied and the Respondent makes no comment on paragraphs 17 and 21 of the Appellants’ affidavit in support. 8. The Respondent says that in the Court below, the Appellant had applied to pay judgment debt by instalments and for stay of execution pending appeal. The Court below ordered that the application herein be made inter-parte. Having obtained judgment in its favour, the Respondent proceeded to file enforcement of judgment process with the Assistant Registrar of the Court below. 9. The application to pay debt by instalments was set down on the 21° of October 2021. Before the application to pay debt by instalments and application for stay was heard on 21° October 2021, the Appellant rushed to the Supreme Court of Appeal to obtain a stay pending appeal which was granted. The Respondent says that the Appellant did not disclose before the Court that the application before the Court below was to pay the judgment debt by instalments whilst at the same time for stay pending appeal. The Appellant therefore concealed matters that are so material to compel this court to grant an order for stay pending appeal. 10. The Appellant did not also disclose properly to the Court that it had been given a date of hearing the inter-parte application by the Court below. 11. Both parties addressed this court at some considerable length. From the totality of their submissions, this court is of the strong view that the real battle is on whether this application is properly before the Court. In order to answer this question, | have to navigate through the Law and Rules of Procedure as provided for in the Supreme Court of Appeal Act and Supreme Court of Appeal Rules. 12. Our starting point here is Order 1 Rule 18 of the Supreme Court of Appeal Rules which provides: “Whenever an application may be made either to the Court below or to the Court, it shall be made in the first instance to the Court below but, if the Court below refuses the application, the applicant shall be entitled to have the application determined by the Court”. 13. This Rule is very clear. The first port of call is the Court below and this is what the Appellant had done on 21% of September 2021 when it filed an ex-parte application for an order to pay judgment debt by instalments and stay of execution 3 of the judgment. Hearing was to take place on 21% October 2021. On 29" of September 2021, before the application in the Court below was heard, the Appellant filed an ex-parte application for stay of execution pending appeal before the Court. 14. From the totality of the evidence on record, the Court below did not refuse the application. It gave a date for hearing. The Appellant was not happy because the date was not close. Their fear was that if they waited for the said date, the Respondent could have enforced execution of the judgment lendering their application nugatory. The Appellant also gave several other apprehensions that it had in the way they were treated by the Court below. In a nutshell, the Appellants said that the Court below favoured the Respondent. This favour is fundamentally grounded on the way dates were fixed for hearing 3" Party Notice and their application. 15. It is clear from my assessments of the facts before me as gathered from the affidavits as well as several case authorities that have been showcased by both sides that the application by the Appellant in the Court below was not refused by the Court below. This therefore did not entitle ihe Appellant to come to this Court. The issue of dates should not be deliberately complicated. As for the 3 Party Notice, dates were the domain of the Assistant Registrar. The Judge was not involved in this. It can therefore not be true that the Curt below favoured the Respondent just because the Registrar had given an earlier date. This is a very wild and dangerous allegation. If allowed to stand, this Court may set down a very dangerous precedent. | therefore take this to be a wild allegation with no iota of truth. 16. It was incumbent upon the Appellant to seek audience with the Assistant Registrar through acceptable procedures if at all the Appellant had any issues with the way the 3rd Party Notice was being handled by the Office of the Assistant Registrar. 17. This Court has also noted that the Appellant did not bring the same application before the Court. In the Court below, there were two issues that the Appellant was seeking remedies on. In the application before this Court, the Appellant brought only one issue and this related to only a stay. | find this to have been a violation of the procedure. 18. The Appellant urged this court to take into account Section 22(1) (d) of the Supreme Court of Appeal Act which allows this Court to make such order as interest of justice may require. My simple understanding of this section is that it refers to a situation where the Court has heard an appeal or on hearing of an appeal. Unfortunately, this is not the situation at hand. 19. | therefore order that the Order of Stay of Execution Pending Appeal granted ex-parte herein in favour of the Appellant be vacated. The Appellant to revert to the Court below and exhaust the available remedies in accordance with the Rules. This application is dismissed with costs. DELIVERED in Chambers at Blantyre this 10™ Day of November 2021 Honourable Justice M. C. C. Mkandawire JUSTICE OF APPEAL