Hanex Engineering & Construction Ltd and Anor v Elite Leonard Mhone (CAZ/08/169/2023) [2021] ZMCA 193 (21 June 2021)

IN THE COURT OF APPEAL FOR ZAMBIA AT THE LUSAKA DISTRICT REGISTRY HOLDEN AT LUSAKA ( Civil Jurisdiction) CAZ/08/169/2023 BETWEEN: HANEX ENGINEERING & CONSTRUCTION LTD COXCY MUDENDA 1st Appellant 2nd Appellant AND ELITE LEONARD MHONE espondent Coram: Hon. Lady Justice N. A Sharpe-Phiri in Chambers on 215t June 2023 For the Appellants: Mr. E. Ngambi and Mrs. C. Chilema of Messrs JMC & For the Respondent: NI A Associates RULING Legislation referred to: 1. The Court of Appeal Rules, SI No. 65 of2016 2. The Rules of the Supreme Court, White Book, 1999 Edition Cases referred to: 1. Nyampala Safaris Zambia Limited, and others v Zambia Wildlife Authority, and Others SCZB/ 179/2003 This is an ex tempore ruling on an ex-parte application brought by the Appellants for a stay of sale of goods following on execution of the judgment of 9th March 2023 pending determination of an appeal before this Court. Rl The application is supported by an affidavit sworn by one Coxey Mudenda of 15 June 2023 in which he deposes that judgment on admission was entered by the High Court on 9 March 2023. That an appeal against the judgment was lodged and that it has prospects of success as indicated in the grounds of appeal in the memorandum of appeal. The deponent also stated that the Sheriff of Zambia executed and seized goods on 14 June 2023 and that if the goods are sold, their appeal will be an academic exercise. The summons was heard ex parte before me. The Appellants Counsel were in attendance and relied on the affidavit in support of the application. Counsel also requested to rely on a further affidavit on record. The Court observed that an affidavit entitled 'Defendants further affidavit' was filed on 20 June 2023, which it would not consider as it was improperly designated. I have carefully considered the evidence of the Appellants in the affidavit in support as well as the list of authorities and skeleton arguments in relation to the application for a stay of sale goods. The application has been brought pursuant to Order X Rule 5 of the Court of Appeal Rules which provides that 'an appeal shall not operate as a stay of execution or of proceedings under the judgment appealed against unless the High Court, quasi-judicial body or the Court so orders and no immediate act or proceedings shall be invalidated, except so far as the Court may direct. ' The provisions of Order X Rule 5 of the Court of Appeal Rules clearly illustrate that an appeal does not operate as an automatic stay of execution or of proceedings. An appealing party is expected to make the requisite application should it so desire to secure an order staying execution of a judgment or of proceedings in the lower Courts. R2 Further, Order 59, Rule 13 of the Rules of the Supreme Court provides the following guidance in determining what needs to be considered in granting an application for a stay of execution: 'Neither the Court below nor the Court of Appeal will grant a stay unless satisfied that there are good reasons for doing so. But the Court is likely to grant a stay where the appeal would otherwise be rendered nugatory, or the appellant would suffer loss which could not be compensated in damages. The question whether or not to grant a stay is entirely in the discretion of the Court and the Court will grant it where the special circumstances of the case so require.' In this case, the evidence on record indicates that the Appellants secured a loan facility from the Respondent in 2021. Not having settled the debt, judgment was entered on admission of the debt by the Appellants. The High Court Judge has discretionary power to enter judgment on admission of the debt. Although the Appellants had lodged an appeal against this judgment and argued that their appeal has reasonable prospects of success, they have not demonstrated how these prospects nor have they shown their appeal will be rendered an academic exercise if a stay of the sale of goods is not granted. Furthermore, in the case of Nyampala Safaris Zambia Limited, and others v Zambia Wildlife Authority, and Others where their Lordships of the Supreme Court provided further guidance that 'a stay of execution is granted on good and convincing reasons.' The Courts have been consistent in holding that a stay of execution must only be granted on good and convincing reasons and that the applicants must clearly demonstrate the basis of which the stay should be granted. R3 .... In this case, it is not disputed that the Appellants owe the Respondent money for a loan that they took, and which facility has not been repaid. Based on the foregoing, I am also not satisfied that the Appellants has demonstrated good and convincing reasons to exercise my discretion to grant a stay of sale of goods and denying the Respondent the fruits of his judgment. I therefore find no merit in the Appellants application and dismiss it accordingly. I make no order as to costs. Dated at Lusaka this 21 st June 2023. ~ harpe-Phir- COURT OF APPEAL JUDGE R4