Emmanuel Kwenda v Norman Kapengele and Anor (SCZ/8/280/2009) [2013] ZMSC 47 (13 December 2013)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) SCZ/8/280/2009 BETWEEN: EMMANUEL KWENDA APPELLANT AND NORMAN KAPENGELE THE ATTORNEY GENERAL 1 ST RESPONDENT 2ND RESPONDENT For The Appellant: Mr D Tambulukani, Musa Mwenya, Advocates. For The 1st Respondent: Mr C. K Bwalya, ID. H Kemp & Co. For the 2nd Respondent: NIA. RULING Cases referred to: 1. S. P. Mulenga v Investrust Merchant Bank Ltd (1999)2. R. 101 Legislation referred to: 1. Rules of the Supreme Court, 1999. Order 59, Rule 13. The Appellant is applying for Order to stay execution of the High Court Judgment of 16th November 2009, pending R2 determination of his appeal against the same Judgment. The Judgment in question involves a residential House on S/D77 of Farm No. 44 / a Lusaka. It gave the House to the 1st Respondent. Currently the 1st Respondent is the registered owner of the House. He bought it from the 2nd Respondent, as part of his retirement benefits. The Judgment also ordered the Appellant to pay mesne profits, to the 1st Respondent, for occupying the House in dispute. On behalf of the Appellant, the gist of the submissions by Mr Tembo is that the appeal has a good prospect of succeeding because the House in dispute should have been sold to the Appellant as the sitting in Tenant. That it was wrongfully sold to the 1st Respondent, who was not a sitting in Tenant. He bases his submission on the Government Scheme for sale of Government pool Houses to Civil Servants and Government workers. He adds that if the stay is not granted, the appeal will be rendered an academic exercise and nugatory. In response on behalf of the 2 nd Respondent, Mr Bwalya submits in sum, that the stay should not be granted because the appeal has no chance of succeeding, in view of Chilufya v Attorney General (Appeal No. 76/2006). That case involves sale of a former NAM BOARD house in similar circumstances. The House in this matter is also a former NAM BOARD house. R3 I have examined the Judgment appealed against, the affidavits 1n support and in opposition, to the application. I have also considered the submissions on both sides and have looked at the cases cited. Stay of execution is discretionary remedy. A party is not entitled to it as of right. The principles governing stay of execution pending appeal are well settled. Firstly, the successful party or parties should not be denied the immediate enjoyment of a Judgment unless there are good and sufficient grounds. Stay of execution should not be granted for the mere convenience of the appellant. Secondly, in exercising its discretion, whether to grant a stay or not, the Court is entitled to preview the prospects of success of the proposed appeal. In particular, where the Judgment appealed against involves payment of money, the appellant must show that if such money is paid, then there will be no reasonable prospect of recovering it in the event of the appeal succeeding. Such proof is what amounts to good and sufficient grounds warranting a stay: see: 1. Rules of the Supreme Court (1999) Order 59, Rule 13. 2. Sonny Mulenga (& Others) v Investrust Merchant Bank Limited(1l In the present case, the Judgment appealed against involves a House and payment of money. The Appellant has not shown that the House will not be there if he later wins his appeal. He has also not shown that if the money, in the form of mesne profits, is paid by execution, there will be no reasonable prospects of recovering it if the appeal later succeeds. Additionally, I do not accept the R4 submission that this appeal has a good prospect of succeeding. I say so for two reasons. One is that, as to merits, the appeal is against the findings of fact by the trial Court. The position of this Court on such appeals, is well known. And then on similar facts, is Chilufya v Attorney General, cited by Mr Bwalya. It stands against the Appellant. Secondly, the appeal hangs in the balance on procedure. It has been challenged on a procedural defect. The Appellant has admitted the procedural defect. Given the foregoing, I am of the view that the Appellant has not shown good and sufficient grounds to warrant a stay of execution. Accordingly, I exercise my discretion against him and refuse stay of execution. I hereby dismiss the application. I award costs to the 1st Respondent, to be taxed, in default of agreement. Delivered in Chambers, this 13th Day of December, 2013 SUPREME COURT JUDGE