Jones Lufungulo v Business Partners International SME Fund Zambia Limited (CAZ/8/271/2019) [2019] ZMCA 393 (17 December 2019)

Rl IN THE COURT OF APPEAL OF ZAMBIA CAZ/8/271/.2019 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: JONES LUFUNGULO APPELLANT AND BUSINESS PARTNERS INTERNATIONAL SME FUND ZAMBIA LIMITED RESPONDENT Before: The Honourable Mrs. Justice PCM Ngulube, JA. For the Appellant: In Person. For the Respondent: Mrs. T. Tembo - Mulenga, Mesdames TMN Legal Practitioners RULING Cases referred to: 1. 2. 3. Wilson vs Church (No.2)12 Ch. D. (1879) Bulker vs Lavery (1985) 14QBD 769 Nyampala Safaris and 4 others vs Zambia Wildlife Authority and 6 others (2004) Z. R. 4 9 Legislation referred to: 1. 2. 3. The Court of Appeal Rules, Statutory Instrument Number 65 of2016 The Rules of the Supreme Court, 1999 Edition Halsbury's Laws of England, 5th Edition R2 INTRODUCTION 1. 1 This is the applicant's renewed application for stay of execution pursuant to Order X Rule 5 of the Court of the App (eal Rn les 1 as well as Order 59 Rule 13/ 1 of the Rules of the Supreme Cou rt , 1999 Edition2 . The application is premised on the grounds that if the stay is not granted, the appellant's appeal will be rendered nugatory as the respondent will have executed its judgment. The appellant further contends that the appeal has reasonable prospects of success. 2 .0 BACKGROUND 2. l The brief background of the matter is that the respondent herein commenced an action in the Lusaka High Court, Co.mmercial Division in 2018, pursuant to Order 30 Ru le 14 of the High Court Rules, for the recovery of all monies due under a Third Party mortgage dated 11 th November, 2016, as well as payments due on the loan agreement and royalty agreement, both dated 12th May, 2016. H:3 2.2 The respondent sought an order for foreclosure, delivery up and possession of Subdivision Number 984 of Subdivision A of Farm Number 378a, Lusaka. The respondent claimed the outstanding balance of ZMW 856,670.15 as at 5 th July, 2018 and ZMW 21,487.92 under the Royalty Agreement. In the lower court, the appellant did not deny its indebtedness to the respondent but stated that his failure to pay the loan was a result of one of his houses having been destroyed by fire. 2. 3 The court considered the affidavit evidence as well as the appellant's admission of owing the respondent, Judgment was accordingly entered for the respondent in the sums of ZMW 856,670.15 as at 5 th July, 2017 and ZMW 21,487.92 under the Royalty Agreement, with interest on both sums at the commercial lending rate, until full payment. 2. 4 The court ordered that the amount be settled in 150 days and in default, the respondent would be at liberty to foreclose and take possession of t he mortgage property, Subdivision Number 984 of Subdivision A of Farm Number 378a, Lusaka and exercise the powers of sale. R4 2.5 The appellant made an application to settle the Judgment su m in monthly instalments and further proposed to liquidate the Judgment sum by selling part of the property, Subdivision Number 984 of Subdivision 'A' of Farm Number 378a, Lusaka. 2.6 The lower court considered this application but it was dismissed for the reasons that it was speculative and lacked merit. The court further dismissed the appellant's application for stay of execution for lack of merit. Dissatisfied with the Judgment and Ruling of the lower court, the appellant has renewed his application for stay of execution, pending the lodging of an appeal to this court. 3.0 MAIN APPLICATION 3.1 The appellant filed an affidavit in support of summons to stay execution of Judgment. He averred he filed a memorandum and notice of appeal in this court on 4th September, 2019 which he states has high prospects of success on appeal and is meritorious. 3.2 The appellant averred that the respondent may execute its Judgment sooner than later, rendering his appeal academic and nugatory. He further stated that there are special RS circumstances which ought to cmnpel this court to grant an order for stay of execution. The appellant averred that the respondent will not be prejudiced in the event that an order for stay of execution is granted and filed skeleton arguments in support of the application. He referred to . Halsbu.ry's Laws of England, paragraph 1359, 5 th edition3 which states that- ''' .... the court has an absolute and unfettered discretion as to whether to :ma'k,e an order granting stay of execution pending an appeal and as to tbe terms upon which a stay will be g.ranted and will as a rul,e, only grant a stay if there ar,e special cir,cumstan,ces."' 3.3 The appellant further referred to Order 59 Rule 13 of the Rules of the Supreme Court, 1999 Edition4 , whose explanatory note states that- "'the court is likely to grant a stay where the appeal would otberwise be rendie.red nugatory .. '' Further, the appell:ant referred to the case of Wilson vs Church 1. where the court stated that- R6 "It has been said that the court as a general rule ought to exercise its best discretion in a way such as not to prevent the appeal, if successful, from being nugatory". The appellant submitted that the appeal has high prospects of success and prayed that an order for stay of execution be granted. 3.4 The respondent filed an affidavit in opposition to the affidavit in support of ex-parte summons for an order of stay of execution of Judgment sworn by Alison Lungu, the Country Manager in the respondent company. He averred that the memorandum and notice of appeal do not show any meritorious grounds as the appellant failed to avail a concrete payment plan and also failed to bring to the fore for discussions prospective buyers who were supposed to purchase the property. 3 .5 The deponent averred that if the appellant's application is granted, the respondent will suffer grave injustice as he has yet to enjoy the fruits of the Judgment due to the appellant's numerous applications. R7 Mr. Lungu further averred that the appellant's application is an abuse of court process and that he is a vexations litigant as he has made no efforts to attend to the liquidation of the Judgment debt non has he shown any commitment to attend to the same. The deponent averred that the appeal has no likelihood of success and prayed that the application be dismissed with costs. 4.0 MYVI:EW 4.1 I have carefully considered the affidavits in support and in opposition, the skeleton arguments, the submissions, the Judgment and the Ruling of the lower court. The legal principles which guide a court when considering an application for stay of execution of Judgment pending appeal are clear .. 4.2 The fact that a party has exercised his or her right to appeal to a higher court does not mean that the Judgment appealed against must be stayed. Order 59, Rule 13 of the Rules of the Supreme Court refers. The court is more likely to grant a stay where, the appeal, if successful would be rendered nugatory. The case of Wilso n vs Ch urch s upra refers. R8 The burden of showing special circumstances warranting a stay of execution is always on the applicant. The case in part is that of Bulker vs Lavery 2 . 4. 3 The party needs to demonstrate to the court that there are special circumstances in favour of granting a stay. Further, a court will order stay of execution pending appeal where it is satisfied that the applicant would suffer loss which would not be compensated in damages. Paragraph 59/ 13/ 1 of the Rules of the Supreme Court refers. 4.4 Evidence or facts must be presented to the court in order for it to properly assess the position. All in all, the question whether or not to grant a stay is in the discretion of the court and each case must be assessed on its facts and merits. Lastly, the court would still have discretion to refuse a stay if the stay would be utterly unjust and oppressive. In the case of Nya mpala Safaris and 4 others vs Zambia Wildlife Authority and six others3 , it was held that a stay should only be granted where good and convincing reasons have been advanced. R9 4 .5 In the present case, the appellant made an application to pay the Judgment debt in instalments, which was rejected by the lower court. What is important to note is that the respondent does not dispute owing the Judgment sum. Further, I am of the view that the affidavit in support does not provide good reasons and further that no special circumstances have been given to warrant the grant of a stay. 5.0 CONCLUSION 5.1 The appellant has not shown any special circumstances to warrant the granting of an order staying execution pending appeal. The application is accordingly dismissed with costs to the respondent. The exparte order granted on 5 th December, 2019 is hereby discharged. Dated this 17th day of December, 2019. HONOURABLE MRS JUSTICE P . C. M. NGULUBE COURT OF APPEAL JUDGE