Goma v Prudence Bank Ltd (Appeal 143 of 2000) [2015] ZMSC 1 (26 August 2015)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 143/2000 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: JAMES GOMA AND APPELLANT PRUDENCE BANK LIMITED (IN LIQUIDATION) (cid:9) RESPONDENT Coram: Chibomba, Phiri and Wood, JJS. On 16th July, 2015 and 26th August, 2015. For the Appellant: (cid:9) Dr. O. M. Banda- Messrs O. M. M Banda and Company. For the Respondents: N/A. JUDGMENT Wood, JS, delivered the Judgment of the Court. CASES REFERRED TO: 1. Water Wells Limited v Wilson Samuel Jackson (1984) Z. R. 98. 2. Stanley Mwambazi v Morrester Farms Limited (1977) Z. R. 108. 3. Robert Lawrence Roy v Chitakata Ranching Company Limited (1980) Z. R. 198. 4. Jamas Milling Company Ltd v Imex International (Pty) Ltd (2002) Z. R. 79. J2 5. Michelo Special Georges Mwiinga (Sued as Mortgagor and Guarantor) and 1 other v Zambia National Commercial Bank Plc, SCZ No. 51/2014. 6. Sonny Paul Mulenga & Vismer Mulenga (Both personally and Practicing as SP Mulenga International), Chainama Hotels Limited and Elephants Head Hotel Limited v Investrust Merchant Bank Limited (1999) Z. R. 101. LEGISLATION REFERRED TO: 1. Rule 59 of the Supreme Court Rules, Chapter 25 of the Laws of Zambia. 2. Orders 39 and 47 (5) of the High Court Rules, Chapter 27 of the Laws of Zambia. This is an appeal against the decision of the High Court refusing leave to review or grant a stay of execution of its order dated 12th February, 1999. The brief facts of this appeal are these:- On 20th June, 1995, the parties executed a Mortgage Deed in respect of S/D 893 of Stand No. 7428 Lusaka, in favour of the respondent to secure repayment of the sum of K13, 000,000.00. This money was in • respect of an overdraft facility granted to a company known as Kadinah Motor Mechanics on 15th May, 1995 and guaranteed by the appellant. After Kadinah Motor Mechanics defaulted, the respondent took out an Originating Summons against the appellant, claiming possession of S/D 893 of Stand No. 7428 J3 Lusaka. The appellant did not oppose the Originating Summons and on 12th February, 1999, the learned trial Judge ordered that the appellant pays the respondent the sum owing and in default, yield vacant possession of S/D 893 of Stand No. 7428 Lusaka. The appellant asked the learned trial Judge to stay execution of her order and to review it on grounds that the respondent had already sued Kadinah Motor Mechanics under Cause No. 1996/HP/643 which was still pending before another court. He stated that in that cause, Kadinah Motor Mechanics were claiming to have discharged the sums owing to the respondent. The learned trial Judge refused to stay execution of, or review her order on grounds that the appellant had sufficient time within which to oppose the Originating Summons and in any event, there was no defence to the claim. She also observed that whatever • defence the appellant raised in his application for a stay of execution and review was belated. The appellant was not satisfied with the ruling and filed in two grounds of appeal. Ground one of the appeal was that the learned trial Judge misdirected herself in refusing to grant a stay of execution of the J4 order and in refusing to review the order dated 12th February, 1999, on the ground that the appellant had no defence despite the appellant having sworn an affidavit in support of the Summons for a stay and review which disclosed the reasons for making the application and the defence thereto. Ground two of the appeal was that the learned trial Judge misdirected herself in holding that it was too late in the day for the appellant to advance the so called "defence" or "issues" without having regard to the reasons advanced in support of the Summons for Review together with the exhibits shown therein. The grounds upon which the appellant has appealed to this Court are substantially that the learned trial Judge misdirected herself in refusing to grant a stay of execution and refusing to review the order of the court granted on 121h February, 1999, on • grounds that the appellant had no defence and that she had no regard to the reasons advanced in the affidavit in opposition to the Summons. For convenience, we shall deal with the two grounds of appeal together since they raise similar issues. J5 In support of this appeal, counsel for the appellant argued that Kadinah Motor Mechanics obtained an overdraft from the respondent and pledged the appellant's property as security. It was contended that the explanation by the appellant that he did not borrow the money from the respondent was a sufficient defence upon which the learned trial Judge ought to have reviewed her decision. Counsel also argued that the appellant did not enter appearance in the matter because the originating process was not served on him, but on Messrs Hamakando, Zulu and Company, who were not his advocates at that time and that he was only served with the court order on 4th May, 1999. Counsel also submitted that the learned trial Judge erred when she refused to grant the appellant a stay of execution of the order despite granting him leave to appeal in view of Rule 47 (5) of the High Court Rules, Chapter 27 of the Laws of Zambia which states that an appeal shall not operate as a stay of execution or of proceedings under the judgment or decision appealed from. To support the argument that the learned trial Judge erred when she J6 refused to grant the appellant a stay of execution of the order, Counsel relied on the cases of Water Wells Limited v Wilson Samuel Jackson' and Stanley Mwambazi v Morrester Farms Limited2, in which we looked at the issues to consider when determining an application for stay of execution. Counsel for the appellant further argued that the learned trial Judge acknowledged the fact that there were defences or issues which should have in turn, justified a review of her decision. It was contended that as held by this Court in the case of Stanley Mwambazi v Morrester Farms Limited2, it is the practice in dealing with bona fide interlocutory applications for courts to allow triable issues to come to trial despite the fault of the parties. It was argued that on the facts of this case, the appellant should be allowed to file his affidavit in opposition to the Originating 40 Summons. In the combined response to grounds one and two of the appeal, counsel for the respondent submitted that the learned trial Judge was on firm ground when she refused to review her order because it was made out of time. Counsel observed that the order J7 appealed against was made on 12th February, 1999 and the application for review was made on 161h November, 1999. This was approximately nine months from the date of the order and clearly out of time. It was argued that in the circumstances, the appellant should have applied for special leave of the learned trial Judge to review her order. In support of this position, counsel referred us to Order 39 of the High Court Rules which deals with review. We have considered the decision appealed against, the arguments in support of the appeal as well as the authorities relied upon. The application before the learned trial Judge to review her decision lacked merit as the circumstances of this case did not warrant a review of the decision of the learned trial Judge. The appellant's application for review was premised on the fact that the respondent had already sued Kadinah Motor Mechanics and the action against him was an abuse of court process. The record of appeal before us shows that Cause No. 1996/HP/643, in which the respondent sued Kadinah Motor Mechanics and upon which the appellant was relying, was instituted on 6th February, 1996. The action against the appellant was commenced on 22' August, 1997 and the order he is appealing against was granted on 12th February, J8 1999. The affidavit in support of the application for review does not state in any paragraph that the appellant had only discovered Cause No. 1996/HP/643 at the time he was making the application for a stay of execution and review of the order. Even if he had advanced this argument, it would not have gone far as court records are public documents which can be easily accessed upon payment of a nominal prescribed search fee. Clearly, the appellant was aware of the existence of this action and could not, therefore, use its existence to ask the learned trial Judge to review her decision. In the case of Robert Lawrence Roy v Chitakata Ranching Company Limited3, in which we determined the question of when it is appropriate for a court to review its decision, we held that: "Setting aside a judgment on fresh evidence will lie on the ground of the discovery of material evidence which would have had material effect upon the decision of the court and has been discovered since the decision but could not with reasonable diligence have been discovered before" We affirmed this position in the case of Jamas Milling Company Ltd v Imex International (Pty) Ltd4. The appellant's application for review could not be sustained because he did not bring new evidence before the court, which he was unaware existed to warrant the learned trial Judge to review her decision. J9 The appellant's application for a stay of execution of the order of court equally lacks merit. In exercising its discretion whether to grant a stay of execution or not, a Court is entitled to preview the prospects of the proposed appeal. We have made this position clear in a number of authorities and recently did so in the case of Michelo Special Georges Mwiinga (Sued as Mortgagor and Guarantor) and 1 other v Zambia National Commercial Bank Plc. In this appeal before us, the learned trial Judge reviewed the prospects of the appeal and found that it was bound to fail as the appellant had no defence. Our view is that the learned trial Judge properly exercised her discretion in refusing to stay execution of the order. The appellant did not dispute the fact that he had executed a Mortgage Deed in favour of the respondent and this deed was exhibited in the affidavit in support of the Originating Summons. His only defence was that he executed the Mortgage Deed in favour of Kadinah Motor Mechanics, which we must say, is not a defence at all. This was a risk he took when he pledged his property on behalf of another borrower. He cannot now be heard to argue, as he has done in his heads of argument, that the court was expected to do substantial justice in his favour as he was likely to lose his property as he was not the J10 one who obtained the overdraft facility. Counsel for the appellant filed a supplementary record of appeal containing documents which showed that the appellant was not aware of the hearing of the Originating Summons. The appellant did not exhibit these documents in his application for a stay and review of the order. He was, therefore, raising this issue for the first time. We have stated in a number of authorities that where an issue was not raised in the court below, it is not competent for a party to raise it on appeal. In any event, a supplementary record of appeal is filed by a respondent who is of the view that an appellant's record of appeal is defective. Order 59 of the Supreme Court Rules, Chapter 25 of the Laws of Zambia specifically states so. We, therefore, will not consider these documents. On the facts of this case, we see no reasons for denying the respondent immediate enjoyment of the fruits of the judgment by • way of a stay of execution. In the case of Sonny Paul Mulenga & Vismer Mulenga (Both personally and Practicing as SP Mulenga International), Chainama Hotels Limited and Elephants Head Hotel Limited v Investatst Merchant Bank Limited6, we held that: ill "The successful litigant should not be denied immediate enjoyment of a judgment unless there are good and sufficient grounds." If the defence raised by Kadinah Motor Mechanics under Cause No. 1996/HP/643 succeeded, the appellant could ask the respondent to render an account to avoid unjust enrichment on the part of the respondent. In the case of Michelo Special Georges Mwiinga (Sued as Mortgagor and Guarantor) and 1 other v Zambia National Commercial Bank Plc5, which was a mortgage action, we 40 discharged a stay of execution of judgment obtained on grounds that the mortgagor had made a counter claim against the mortgagee in the Industrial and Labour Relations Court. This appeal lacks merit and is dismissed with costs to be agreed or taxed in default of agreement. H. CHIBOMBA SUPREME COURT JUDGE G. S. PHIRI WO ID SUPREME COURT JUDGE (cid:9) SUPREME COURT JUDGE