Chiphwanya v Banja La Mtsogolo (MSCA Civil Appeal 14 of 2017) [2017] MWSC 21 (19 September 2017)

REPUBLIC OF MALAWI IN THE SUPREME COURT OF APPEAL SITTING AT BLANTYRE MSCA CIVIL APPEAL NO. 14 OF 2017 BETWEEN DAVIE CHIPHWANYA APPELLANT -AND- BANJA LA MISOGOLO RESPONDENT Coram: HON. JUSTICE MZIKAMANDA SC, JA Luciano Michaels Counsel for the Adpellant M. Sauti Phiri Counsel for the Respondent C. Masiyano Recording Officers RULING This is an inter-parte application for continuation of a s1 the order directing the applicant to pay the judgment su application follows an exparte application on the same mad time | had granted an interim stay of execution order. Ther = support of the application. The application is opposed. The background to the matter shows that the Industri before which the applicant brought an action for unfair dismi applicant was unfairly dismissed. It proceeded to award the a pay at the rate of two weeks pay for five years and three we five years for the 10 complete years he had worked with the res sum came to K32,251,069.84 which the court ordered to be pai the order. The applicant then obtained a Garnishee Order made absolute, against the respondent, now a judgment deb being various banks for the respondent order to pay the sum of the judgment creditor through the judgment creditor lawyer $ sufficient to satisfy the judgment debt and costs of the proceed 9'n February 2017. On 17'* February, 2017 the judgment debtor obtained a that the judgment sum of K32,251,069.84 paid to the judgmer National Bank of Malawi be paid into court. The High Court appealed against. The application for stay of execution of the o the hearing of the appeal. When the parties appeared before me on the present apr for the applicant adopted his affidavit and the skeletal argum affidavit is quite detailed but ends with a prayer that the or applicant to pay the judgment sum into court be staye =} ay of execution of m into court. This He earlier at which is an affidavit in al Relations Court sal found that the p ‘ Dondent. The total licant severance $ pay for another Oo within 14 days of nisi, subsequently tor. Six garnishees K32,251,069.84 to uch as would be lings. That was on High Court Order t creditor by the Order was to be rder was pending lication, Counsel ents he filed. The qder directing the ad pending the determination of an appeal and also prays that leave to appe that the applicant should pay the money into court be granted b On his part Counsel for the respondent to the applicatic order ought not to be granted and that the interim orde vacated because the applicant suppressed material facts impression that he was a successful litigant where there was court below to his claim upon which the lower court had reser] argued that it was incorrect for the applicant to suggest th already complete when the order to pay into court was md Counsel the applicant breached the good faith principled application not in good faith. This court should not be called un consider the merits in this case. - gl against the order d. n prays that a stay granted and be and created an oO challenge in the ved a ruling. It was at execution was de. According to p by making the on at this stage to The reply of Counsel for the applicant was strong and vehement rejecting the claim that the applicant suppressed material facts wh exparte application. It was not correct that the respondent wd garnishee order nisi absolute but that the issue before the High that the Registrar had refused an application for stay of judgment. At the time the applicant told the court that th complete. Counsel also raised an issue of lack of service of sur the order. On the suggestion that the applicant disobeyed so was argued that the order of 17'n February 2017 did not state th t Ee pn he made the s challenging the Court Judge was execution of the = S execution was nmons to amend e court order, it time within which the order was to be complied with. Having been served wi h the order, the applicant rushed to this court for an order of stay of execution, compelled because the lower court had reserved its ruling on the objection that the applicant had raised. Without an order of stay of execution, t rendered nugatory in the view of the applicant. The applicant w awkward position of having to recover the fruits of his litigation ar only to get them back after a successful appeal. © appeal will be | be putin a very nd pay into court present application and the arguments advanced both in su | have taken time to closely examine the documentation relevant to the pport and against the application. Among the documentation that were atiqched to the inter- partes summons for continuation of a stay of execution of thelorder directing the applicant to pay judgment sum into court was notice of appeal marked “LMé”, This was notice that the applicant being dissatisfied with the decision of the High Court made by Honourable Justice Mbvundula on the 17% day of February, 2017 appeais fo the Malawi Supreme Court of Appeal on grounds, set out in the notice. The respondent did not attend the hearing of the interpartas summons on the date this Court made an order in the terms that “! grant application for the stay Zp until determination of appeal or until further order of this Cort". This order was subsequently vacated because the respondent had given plausible reasons for failure to attend. The point to be noted here is that an impression had been made by the applicant that there was an appeal that had been logged as against the order by Honourable Justice Mbvundula on payment of judgment sum into court. Yet the affidavit in support of the application makes it abunda ntly clear that while praying for the stay of execution of the order by Justice Movunwula, the applicant also asks this court to grant leave to appeal against the order that the applicant should pay money into court. This clearly shows that the appebi has not yet been made and that it would be made after the grant of leave td appeal. What this means is that this Court was misled to believe that there was gn appeal pending in the Supreme Court of Appeal against the order to pay judgment sum into court when no such appeal was pending. That situation makes tHe stay order to be contingent on an appeal yet to be made. That is untenable. It is not difficult to imagine that the appeal may never be made once a stay has been made more or less permanent for the applicant would have achieved What he wanted to achieve even before the appeal is made. It has also occurred to that even if there was an appeal p ending an order of stay of execution would not be effectual if what the apr bellant said that execution was already complete was anything to go by. Now the parties went to great lengths to argue] various factual matters and points of law which really turned on the merits and party's case. | do not think this is the time for the parties to vent temerits of each late their cases. Most of what the parties argued before me are matters that should be argued before the court below. In so far as the application for stay of execution of thel order to make payment of the judgment sum into court, there does not appear|to me any basis for upholding it. The application fails and the case must go bdck to the lower court for the appropriate processes to be done and concluded. Costs to the respondent. Made in Chambers this 19th day of September 2017 at Blarityre. Vide R. R. Maikdmmanda $C JUSTICE OF APPEAL ———$——