Finance Bank Zambia Limited v Dimitrios Monokandilos and Anor [2019] ZMCA 351 (13 December 2019)

/-, 16 kft"l- (cid:9) r- IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: (cid:9) 'I. APPLICATION NO.85/2019 FINANCE BANK ZAMBIA LIMITED 7. 1 3DEC2O APPLICANT AND DIMITRIOS MONOKANDILOS (cid:9) FILANDRIA KOURI (cid:9) 1ST RESPONDENT 2ND RESPONDENT Coram: Makungu, Sichinga and Ngu lube J. J. A On the 12th day of December, 2019 and the 13th day of December, 2019 For the Appellant: For the Respondent: Mr. J. Sangwa SC and Mr. I Chimankata of Simeza Sangwa & Associates Mr. S. Sikota SC of Central Chambers and Mr. S. Mambwe and Mr. Lisimba both of Mambwe, Siwila & Lisimba Advocates RULING MAKUNGTJ, JA delivered the Ruling of the Court. CASES REFERRED TO: 1. Finance Bank Zambia Limited V Mirriam Muzeya & Four Others Appeal No. 115/2017 2. Savenda Management Services v Stanbic Bank Zambia Limited Selected Judgment No. 10 of 2018 3. Hermanus Phillipus Steyn v Glovaini Gnecchi-Ruscane, Application No. 14 of 2012 Kenya 4. Finance Bank Zambia Limited v Weluzani Banda and 162 Others Selected Judgment No. 31 of 2019 (cid:9) (cid:9) (cid:9) I ~,' I - - I A I It 44 V, 5. Sonny Paul Mulenga and Others v Investrust Bank Limited (1999) ZR 101 6. Zambia Revenue Authority v Post Newspapers SCZ Judgment No. 18of2016 LEGISLATION REFERRED TO: 1. The Court of Appeal Act No. 7 of 2016 2. White Book Rule 47 (1) We have before us an application for leave to appeal and an application for a stay of execution pending appeal. On pages 6 - 49 of the record of the motion is an affidavit in support of the motion for leave to appeal which was not sworn before a Commissioner for Oaths. For this reason, we cannot accept it and will not consider as it is a nullity. There is an affidavit in support of ex-parte summons for stay of execution of judgment pending the determination of the Notice of Motion for leave to appeal which was also not sworn before a Commissioner for Oaths. Mr. Sangwa SC the appellant's Advocate is indicated as the deponent. We had already looked at it on 5th December, 2019 when we granted an ex-parte order staying execution pending the hearing and determination of the application for leave to appeal as we were unable to observe the serious defect. R2 ,41-.-4 (cid:9) ~ - ~~4- 4~8. '. 1~ IV -1 ~t j! The second affidavit in support of the application for a stay of execution filed on 9th December, 2019 was sworn before a Commissioner for Oaths by John Sangwa on 9th December, 2019 as shown on the date stamp of the Commissioner for Oaths. That affidavit is to the effect that there are special circumstances which justify the grant and continuation of the order staying execution of the judgment of the High Court of 29th March, 2018 which was confirmed with modifications by the Court of Appeal in its judgment of 29th November, 2019. That the order should stay in force until after the hearing and determination of the application for leave to appeal and in the event of such refusal, there should be a stay unless the same is refused by the Supreme Court, on the following grounds: a) The respondents are foreigners who had previously been deported from Zambia; b) The respondents have no fixed abode in Zambia; c) The respondents have no means of repaying the judgment sum in the event that the decision of this Court is overturned by the Supreme Court; d) The process of the judgment is already subject of a Garnishee Order. R3 •.: The deponent states that the 1s respondent was deported from Zambia in 1998 because he was considered by the government to be a danger to peace and good order. He returned to Zambia in 2012 after the change of government. The 1 respondent is a Greek national and a South African national as shown in his witness statement and application to the bank to open a bank account. The deponent states that he investigated the matter and found that property number 396 A Makeni which the appellant says is his residential address was subdivided into several smaller pieces of land and anyone on this piece of land would be in occupation of a subdivision of the property. On the lack of means by the respondents to repay the judgment debt should the Supreme Court upset the judgment, Mr. Sangwa states that his belief is based on the fact that the 1st respondent has been owing the appellant a colossal sum of money arising from a judgment in cause no. 1996/HP/4739 since 1999. It has been difficult to execute that judgment because the judgment debtor's residential address cannot be located. On 11th July, 2018 a Garnishee Order was granted to the R4 VP . ~'o t j~,- k 11 (cid:9) lk (cid:9) .:. -" 4 ni~~ - (cid:9) plaintiff, Finance Bank, attaching the process of the High Court judgment that was subject of an appeal to satisfy the judgement against the first respondent under cause no. 1996/HP/4739. The Garnishee Order was produced and to the best of his knowledge it is still enforceable. The sum total of the principal and interest is US$4, 162, 454.79. That the High Court judgment for US$ 946, 933.81 which was appealed against was stayed pending appeal on condition that the principal was paid into Court and such payment was made on 30th October, 2019 as indicated in exhibit "JS 13". The respondents' advocates did on 29th November, 2019 file into Court an application to pay the money out of Court and later issued a writ of fifa for the interest portion of the judgment. Mr. Sangwa SC avowed that the appellants main concern is that the respondents have no capacity to repay the judgment debt in the event that the application was eventually allowed to go to the Supreme and the judgment was reversed. On 11th December, 2019 an affidavit in opposition to the application for stay of execution was filed. It was sworn by Dimitrious Monokandilos the 1st respondent. The essence of it is that he is a Greek national R5 • <- (cid:9) . .., (cid:9) • tc• •< .- ! (cid:9) - -- y- V • V. :.-.. (cid:9) ...• •••,• - (cid:9) . .• - kit V VV •VV•'V: (cid:9) V (cid:9) -.•• (cid:9) V - (cid:9) r (cid:9) •1 (cid:9) - I I -C- 4 -mlo- V (cid:9) V (cid:9) - -1 (cid:9) •', (cid:9) '. • V (cid:9) • V V V • •VV V . 3 V V (cid:9) "V• •VV< 1 (cid:9) : - (cid:9) - --, - (cid:9) (cid:9) residing at plot 396A Makeni, Lusaka, Zambia. The judgment of this Court regarding interest is specific and un-ambiguous. The rate of interest and the period of interest is specific. He was advised by his advocates and he verily believes that there are no prospects of success of the proposed appeal. He says it is not true that he is of no fixed abode. Even assuming that he had no assets, that cannot be a basis to deny him the fruits of the judgment. Cause number 1996/HP/4739 is subject of current actual court proceedings in the High Court. The deponent further states that payment of the principal into court stayed the charge of interest as advised by his advocates. The prolonged delays of payment are not only affecting the amount of money due to the respondents but also making them suffer losses due to volatility of the kwacha paid into court. The affidavit in opposition to the application for leave to appeal was also sworn by the 1st respondent and filed on 11th December, 2019. The crux of it is that the proposed appeal has no prospects of success in that: 1. The Court of Appeal judgment was based on irrefutable findings of fact which cannot be reversed on appeal, as they are backed by evidence. R6 .).4 (cid:9) ..s.j It is contended that the intended appeal raises points of law of public importance. The cases of Savenda Management Services v Stanbic Bank Zambia Limited(2) and Hermanus Phillipus Steyn v Glovaini Gnecchi-Ruscane(3) were relied upon. It was further submitted that the 1st proposed ground of appeal revolves around the question whether the account in issue was a joint account. There is no seminal decision by the Supreme Court in relation to the ascertainment of the nature of classification of bank accounts. Further that the decision of this Court on the classification of an account as joint' was made against the English case and there was no evidence of a joint account. This raised points of law of public importance because people in the banking sector and all bank account holders need to know the criteria for determining the nature and classification of a bank account. It was further submitted that we made a judgment that conflicted with our earlier judgment in the case of Finance Bank v Mirriam Muzeya and 4 Others(1) regarding the issue whether both respondents in this case were required to give evidence as we held that the 1st respondent's evidence sufficed. R9 r The Supreme Court case of Finance Bank Zambia Limited v Weluzani Banda and 162 Others(4) was brought to our attention. In that case, the Supreme Court considered the following issues; Whether or not it was a misdirection on the part of the High Court judge who found that the action was a representative action, and whether the finding by the trial Court that the same was established was perverse. The Supreme Court held that the 162 respondents were not only required to file a statement of claim and particularly plead their respective cases but also to tender evidence to that effect. Mr. Sangwa's opinion was that the Supreme Court has confirmed in that case that every plaintiff must come to court and lead evidence to prove his or her own case against the defendant unless it is a representative claim. Thus, this Court's finding that it was unnecessary to call the 2nd respondent as a witness is against the established principle of law. For these reasons, it was submitted that the appeal has reasonable prospects of success. It was further submitted that the finding of this Court that the appellant was not authorized by the joint account holders to debit the account in order to recover the debt incurred by International Investments and Finance Limited was not supported by any evidence. It RiO p - was finally submitted that this is an appropriate case for the grant of leave to appeal. The essence of the arguments in support of the application for a stay of execution pending appeal filed herein on 10th December, 2019 is as follows: The principles laid down in Sonny Paul Mulenga and Other v Investrust Bank5) on what the Court should consider when granting a stay pending appeal should be considered. That a stay should not be granted for 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. The case of Zambia revenue authority v Post Newspaper(6) was also relied upon. Especially that where the judgment appealed against involves payment of money, the appellant must show that if such money is paid, 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. Many other authorities on principles upon which a stay pending appeal can be granted were relied upon. Ru 11, 1. * The arguments in support of the application for leave to appeal were based on the following allegations: 1. The respondents are foreigners. 2. They have no fixed abode. 3. They lack the means to repay the judgment sum 4. The judgment of the Court below which was confirmed with modifications by this Court was garnisheed in the High Court case. Counsel submitted that to refuse the application would signal that the respondents have the right to execute the judgment notwithstanding the garnishee nisi. We were accordingly urged to grant the application as prayed. The skeleton arguments apposing the Notice of Motion for leave to appeal filed herein on 11th December, 2019 were to the effect that the threshold set out in Section 13 (3) of the Court of Appeal Act for the grant of leave to appeal to the Supreme Court ought to be met by the applicant. In support of this, the Savenda case(1) and section 13 (3) of the Act were relied upon. It was submitted that the proposed grounds of appeal do not raise any point of law or public importance or any compelling reasons for the R12 wl -1. I. o appeal to be heard by the Supreme Court. Further that the appeal would have no prospect of success. The proposed appeal is a classic example of attempting to open the doors of justice to busy bodies whose only aim is to delay the inevitable execution. The prayer was that the motion be refused with costs. The skeleton arguments opposing the application for a stay were that there are no good and sufficient grounds for the Court to confirm the stay granted to the appellant exparte. The proposed grounds of appeal, together with the alleged special circumstances deposed to in the 2nd affidavit in support of the application for a stay, is but a stratagem to delay the immediate enjoyment of the fruits of the judgment as proposed grounds of appeal do not meet the threshold set by section 13 (3) of the Court of Appeal Act. It was further submitted that the alleged special circumstances in Mr. Sangwa's 2nd affidavit are nothing but an attempt to execute the appellant's judgment in cause no. 1996/HP/4739 against the 1St respondent in utter disregard of what this Court and the Court below established, to wit, that the judgment cannot be enforced against the joint account the subject of this case. There is therefore nothing new in R13 T-1 0. Y. the alleged circumstances. This Court has examined and discarded them. The appellant simply cannot accept the settled position that one cannot debit a joint account on the basis of a debt allegedly owed only by one of the joint account holders. The respondents' counsel submitted further that the proposition that because the respondents are not Zambian and therefore, need to be stopped from executing a perfectly obtained judgment is not supported by any known law. Neither is the absence or presence of a residential address a bar to obtaining and executing a court judgment. The law and the facts of this case indicate that the proposed appeal is doomed to fail. Therefore, there is no basis upon which a stay should be granted. We were urged to refuse the application for a stay on the hearing of the appeal. During the hearing of the appeal, counsel on both sides paraphrased the written arguments. We therefore find it unnecessary to summarise their oral arguments but we have considered them and noted that the respondents' counsel distinguished this case from the case of Finance Bank v Weluzani Banda & 162 Others(4). R14 • We have considered all the documents on record. Our judgment of 29 November, 2019 speaks for itself as we analyzed the lower court's judgment, applied the law, ascertained the facts and gave reasons for our decision. The facts of the case of Finance Bank v Weluzani Banda and Others(4) are different from the facts of this case. There were many plaintiffs in that case, with separate contracts, some of whom did not file pleadings and did not give evidence. In the present case, the pleadings were settled and evidence given by the 1st respondent. The fact that there was a joint account which was in the names of both respondents was proved. It was also proved that the account was wrongly debited with the amount owed by a corporate entity which is a separate legal entity from the respondents. We do not see how these findings of fact can be upset by the Supreme Court. There are no reasonable prospects of any of the proposed grounds of appeal succeeding. As regards the question whether the proposed appeal raises a point of law of public importance, in the Kenyan case of Hermanus Phillipus R15 S Steyn v C. Lavanni Gnecchi - Ruscane(3), it was held by the Supreme Court inter alia that; "For a case to be certified as one involving a matter of general public importance, the intending appellant ought to have satisfied the Court that the issue to be canvassed on appeal was one of the determination of which transcended the circumstances of a particular case and had a significant bearing on the public interest". We are persuaded by that case and are not satisfied that the determination of the issues which the appellant intends to bring up on appeal would surpass the circumstances of this particular case and have a notable bearing on the public interest. We now come to the issue whether there are compelling reasons for an appeal to be heard by the Supreme Court. We find none. In the submissions in support of the application, the appellant raised issues of the respondents being foreigners of no fixed abode and no capacity to repay the judgment debt should they be paid and the appeal be eventually upset by the Supreme Court and the Garnishee Order. R16 S a The fact that a litigant who is successful in a case is a foreigner is not a compelling reason to grant leave to appeal and it cannot be taken as sufficient ground upon which execution of a judgment can be stayed. The 1st respondent has given his residential address. We are not a trial Court to start inquiring into that so that we can make findings of fact as to where he lives in this Country. The judgment in this matter is supposed to be executed against the applicant and the respondents. According to the case of Zambia Revenue Authority v Post Newspaper supra, the appellant bears the burden of proof that the respondent would have no means of paying back the money should the judgment be upset on appeal. In the present case, non-payment of the judgment debt in cause number 1996/HP/4739 is not indicative of the respondents' lack of means to pay that debt or repay the judgment sum in this matter. In fact, the proceedings in cause no. 1996/HP/4739 are ongoing. We cannot accept that the High Court matter be indirectly consolidated with this one. The respondents are not required to file affidavits of their means as though they are judgment debtors. There is insufficient evidence to prove the allegation that they have no means. R17 I We find no good and sufficient grounds upon which to base an order staying execution pending an application for leave to appeal to be made to the Supreme Court and determined. In any case, we have no jurisdiction to make decisions on behalf of the Supreme Court. The fear of execution taking place on an unascertained amount of interest is not real because the interest rate and period are certain and the respondents' Advocates have already tabulated the same in a letter sent to the applicant's advocates. In any case such an issue should be dealt with by the lower Court. For the foregoing reasons, the application for leave to appeal is refused and so is the application for a stay of execution. The ex-parte order of stay made on 5th December, 2019 is discharged as the application for leave to appeal has been determined. We grant costs to the respondents to be agreed upon or taxed. C. K. MAKUNGU COURT OF APPEAL JUDGE D. L. Y. CHI A (cid:9) COURT 0 APPE . L JUDGE (cid:9) P. C. M. NGULUBE COURT OF APPEAL JUDGE R18 la