Daily Nation Newspaper Limited and Anor v African Brothers Corporation Limited (CAZ/08/224/2019) [2019] ZMCA 374 (17 December 2019)

Rl IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/ 224/2019 HOLDEN AT LUSAKA (CIVIL JURISDICTION) B ETWEEN: DAILY NATION NEWSPAPER LI RICHARD SAKALA AND 1st APPELLANT 2 n d APPELLANT AFRICAN BROTHERS CORPORATION LIMITED RESPONDENT Before The Honourable Mrs. Justice P. C. M. Ngulube in Chambers. For the Appellant: Mr. M. Kangwa, Messrs Makebi Zulu Advocates For the Respondent: No appearance . RULING Cases r ef er red to : 1. Sonny Paul Mulenga, Vismer Mulenga, Chainama Hotels Limited vs Investment Merchant Bank Limited (1999) Z. R. 57. 2. Nyampala Safaris and 4 Others v Zambia Wildlife Authority and 6 Others (2004) ZR 49 (S. C.) 3. John Kunda (suing as Country Director of and on behalf of the Adventist Development and Relief Agency (ADRA) V Keren Motors(z) Limited Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No 65 of 2016 R2 1.0. Introduction 1.1. This is the appellants' renewed ex-parte application for an order to stay execution of judgment of the lower court pending appeal. The application is made pursuant to Order 10 rule 5 of the Court of Appeal Rules l and is accompanied by an affidavit sworn by one Richard Sakala. 2.0. Background 2.1 . The 1 st appellant 1s a newspaper which publishes and widely circulates news items to members of the public in Zambia while the 2nd appellant is a director in the employ of the 1 st appellant. The brief background to this application is that on 20th September and 18th November, 2017, the appellant published two articles, entitled 'PHI Shopping mall not safe anymore' and 'Mystery of land sale to Chinese developer in PHI persists', respectively. The articles which were aimed at the respondent's property called the Presidential Housing Initiative (PHI) mall in Lusaka described it as an unsafe place because it had experienced a spate of robberies, and that the land upon which it was built was dubiously acquired by its proprietors. R3 2.2. The respondent then commenced court process alleging to have been defamed by the appellants through the published articles. He alleged that the articles were false, malicious, defamatory and they alarmed the members of the public. After evaluating the evidence before her, the learned Judge in the court below found for the respondent and awarded him one hundred thousand Kwacha (K 100,000=00) as general damages and one hundred and fifty thousand Kwacha (K 150, 000=00) as exemplary damages for defamation of character as well as fifty thousand Kwacha (K 50,000=00) damages in lieu of an apology. 2.3. Dissatisfied with the Judgment, the appellants, filed a notice of appeal and memorandum of appeal before this court on 11 th October, 2019. They also filed an ex-parte application for stay of execution of the judgment of the lower court having been denied the same in the court below. 3.0. Main application. 3.1. In the affidavit in support of this application, the deponent avers that the court below delivered its judgment in favour of the respondent on 30th September, 2019 and that being dissatisfied with the said judgment, the appellants lodged a notice of appeal R4 and memorandum of appeal before this court on 11 th October, 2019. He avers that the grounds of appeal disclosed in the memorandum of appeal are meritorious and have reasonable prospects of success on appeal. 3.2. It is averred that this court 1s clothed with the requisite jurisdiction to hear and determine the grant of an order sought for stay of execution of judgment of the lower court, pending the determination of the appeal. The deponent further avers that if this court does not grant the stay against the execution of the judgment pending determination of the appeal, the respondent will proceed to execute the said judgment rendering the appeal an academic and nugatory exercise. 3.3. At the hearing of the application, on behalf of the appellants, Mr. Kanga submitted that this application arises from the lower court's refusal to grant an order to stay its judgment and that the grounds of appeal set out in the memorandum of appeal reveal that the appeal has high prospects of success. It was submitted that if the order sought is not granted, the pending appeal will be rendered nugatory. Counsel stated that since the judgment appealed against is a money judgment, it is prudent for this Court RS to grant a stay of execution in the interests of justice especially that no prejudice will be accessioned to the respondent. Counsel prayed that this court may exercise its discretion and grant the ex-parted application for stay of execution. 4 . 0 . Decision of this Court. 4.1. I have taken time to study the record, the judgment and ruling of the lower court and the circumstances surrounding this matter. I note that stay of execution pending appeal is a discretionary remedy. A party is not entitled to it as of right and the court's discretion must be exercised judiciously on well-established principles. In the case of Sonny Paul Mulenga, Vismer Mulenga, Chainama Hotels Limited vs Investment Merchant Bank Limited1 , the Supreme Court stated as follows- "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...... In exercising its R6 discretion whether to grant a stay or not, the court is entitled to preview the prospects of the proposed appeal." 4.2. Further, in the case of Nyampala Safaris and 4 Others v Zambia Wildlife Authority and 6 Others2 it was observed that a stay should only be granted where good and convincing reasons have been advanced by a party. The rationale for this is that a successful litigant should not be deprived of the fruits of litigation as a matter of course as well as to preserve the subject of a suit so that if a litigant does succeed on appeal, the award will not be rendered nugatory. 4.3. In the case John Kunda (suing as Country Director of and on behalf of the Adventist Development and Relief Agency (ADRA) V Keren Motors(z) Limited3 it was held that- "a successful party should only be denied immediate enjoyment of a judgment on good and sufficient grounds ." 4.4. I note that for me to exercise m y discretion to grant or refuse a stay, I must consider the prospect of success of the pending appeal. In casu, without going into the m erits of the appeal, the R7 grounds of appeal allege that the trial judge, misapprehended the facts on record and that the general damages awarded were excessive and disproportionate to injury the respondent may have sustained. Further, that the criteria for awarding exemplary damages was not established or satisfied. 4.5. Taking into consideration the circumstances of this matter and in light of the fact that the judgment appealed against is a money judgment, I do find sufficient reasons that would make me to exercise my discretion to grant an order for stay of execution. Accordingly, this application is granted and costs will be in the cause. Dated this 17th day of December, 2019. HONOURABLE MRS JUSTICE P. C. M NGULUBE COURT OF APPEAL JUDGE.