Kelvin Kipimpi v Time Trucking Limited (CAZ/08/234/2018) [2019] ZMCA 392 (6 December 2019)

Rl IN THE COURT OF APPEAL OF ZAMBIA CAZ/O8/ 234/2018 HOLDEN AT LUSAKA {CIVIL JURISDICTION) BETWEEN: KELVIN KIPIMPI AND APPELLANT TIME TRUCKING LIMITED RESPONDENT Before The Honourable Mrs. Justice P. C. M. Ngulube in Chambers. For the Appellant: In person For the Respondent: L. Mwamba, Messrs Simeza Sangwa & Associates RULING Cases ref erred to: 1. Zambia Revenue Authority v Post Newspapers Limited SCZ Judgment No 18 of 2016 2 . Sonny Paul Mulenga, Vismer Mu lenga, Chainama Hotels Limited vs Investment Merchant Bank Limited (1999) Z. R. 57. 3. Barclays Bank v Zambia Union of Fi.nancial Institutions and Allied Workers. SCZ Judgment No 12 of 2007, This is the appellant's application for an order to stay execution of a ruling on preliminary issue and for an order to stay ass essment of R2 damages by the Court below pending hearing and determination of the appeal before this Court. The brief background of this application is that the appellant commenced an action in the Industrial Division of the High Court against the respondent who had been his employer, and in a Judgment delivered on 2nd September, 2016, the appellant was awarded the following reliefs- (i) Payment of monthly salaries from date of suspension until date of lifting suspension or termination of employment; (ii) payment of 15 days outstanding leave days; (iii) transport; (iv) subsistence allowance; (v) severance package; (vi) Payment of one-month salary in lieu of notice; (vii) interest from 23rd December. 2014 when complaint was filed; and (viii) costs. The said judgment had not specified the amounts due under each h ead and had directed that "in default of agreement, the same shall be referred to the deputy registrar for taxation or assessment as the case may be". The appellant then did an assessment on his own in the sum of two hundred and ninety-three thousand, eight hundred and eighty Kwacha, eight ngwee (K293, 880.80) and caused a Writ of fifa to be issued upon R3 which goods of the respondent were seized by the Sheriff of the Republic of Zambia. The respondent filed an order for stay of execution which was declined by the High Court but subsequently stayed by this Court on 11th October, 2016. Following this, the respondent commenced an action before the High Court seeking for damages for wrongful execution of writ of fifa, interest, costs and expenses for execution. The Court below awarded the respondent the damages sought and direct the same to be assessed by the Deputy Registrar. It is this ruling the appellant seeks to stay . The application for stay of execution is supported by an affidavit sworn by Mr. Kipimpi the appellant herein. In the said affidavit, it is averred that the respondent commenced this matter on 25th July, 2017 in the Court below by way of writ of summons and statement of claim under cause no 2017/HP/1230. That the said suit was commenced to challenge the execution of judgment, which was delivered by the Industrial Division of the High Court holden at Ndola, by way of writ of fifa. He averred that the said fifa was issued as a result of the judgment of the Industrial Division delivered on 2nd September, 2016 at Ndola which was in his favour. R4 It is further averred that the execution of the Writ of fifa which resulted in the seizure of goods from the respondent, was authenticated and enforced by the order of court in the ruling dated 10th October 2016. It is averred that prior to the commencement of the matter, the respondent had made an application to the Industrial Division of the High Court for an order to set aside the writ of fifa for irregularity and for abuse of court process. That while the said application was and is still pending determination in N dola High Court, the respondent commenced another process in the same matter in the Lusaka High Court claiming for damages allegedly occasioned by the issuance of a writ of fifa. He avers that before the hearing of the said matter, he made an application before the court below for an order to set aside the proceedings for irregularity due to the fact that the respondent was not in order to commence another process of the same kind while the respondent's application for setting aside the Writ of fifa had not yet been determined by the High Court in Ndola. The deponent averred that the ruling on his application for an order to set aside proceedings for irregularity was in favour of the respondent and that during the hearing of the main matter in the Court below, knowing very well that the questions of law or construction were pending determination, the court made the orders for direction for the process of RS the said preliminary issue by way of setting the dates of filing the submissions. He avers further that the respondent was directed to be the first to file while the appellant was directed to file his submissions on or before 18th June, 2018 after receiving the respondent's submissions. It is averred that the respondent filed its submissions on 12th June, 2018 and served on him on 25 th June, 2018, contrary to the directions of the Court below. It is averred that unknowingly to the appellant, the Court b elow passed a ruling in favour of the respondent on 16th July, 2018 which he became aware of on the dates between 4th and 12th September, 2018, after the respondent had already made a notice of appointment for assessment of damages to the deputy registrar. The hearing of the said application had been scheduled for 5 th October,2018 and being dissatisfied by the said Ruling, he filed a notice of appeal before this Court. He averred further tha t apart from the respondent's non-response to the appellant's statement of claim and the subsequent issue of Writ of fifa, the High Court sitting at Ndola, which has the same jurisdiction as the one siting at Lusaka made an order to collect the goods of the same value of the amount of the writ of fifa in the ruling delivered on 10th October, 2016. It is was stated that the seizure by the bailiffs conducted on 11 th October,2016 was not done on the strength of the appellant's writ of fifa R6 but the order of the court and that it was irregular for the respondent to file one question of law or construction, in two courts of the same jurisdiction. It is further averred that the main matter where this matter is emanating from is in the Supreme Court under appeal No. SCZ/8/02/2018 pending determination where the respondent is the appellant contending against the ruling on assessment, which was delivered in his favour by the deputy registrar sitting in Ndola. Additionally, it was averred that he believes in the prospects of success of the appeal and that if the execution of the Ruling on preliminary issue and further proceedings of the notice of appointment of assessment of damages are not stayed, the appeal will be an academic exercise. The respondent filed skeleton argument in opposition to summons for an order for stay of execution on 1st October, 2019 in which it is contended that in the case before court, the ruling sought to be stayed did not award any remedy in terms of property or money capable of immediate enforcement by court execution. It is submitted that the ruling awarded the respondent damages, to be assessed by the Deputy Registrar which cannot be enforced by way of execution before assessment is done . That there is nothing to stay about the ruling appealed against because the R7 lower Court did not award any remedy capable of immediate execution. In support of this argument, the Court was referred to the case of Zambia Revenue Authority v Post Newspapers Limit ed1 in which it was held that- "Where a judgment or ruling refuses to grant judicial review or an injunction, there is nothing to stay, bec ause such a judgment or ruling does not award a remedy such as money or property which can be obtained by Court execution. In short, a failed judgment or ruling cannot be stayed because it did not award anything. If there nothing to execute about such a judgment o r ruling, then there is nothing to stay about it. Only a judgment or ruling which awards a remedy and which can be enforced by the court process, can be stayed." It is further contended that a stay for execution is not granted as of right and neither is it granted on purely moral or sympathetic grounds. That one must demonstrate that there are a good and sufficient grounds for grant of an order for stay of execution and that prospects of success ought to be considered. It was submitted that the court is entitled to purview the prospects of success when determining an application for stay of execution and that a stay of execution will not normally be R8 granted where the appeal has no prospects of success. In support of this argument the court was referred to the case of Sonny Paul Mulenga, Vismer Mulenga, Chainama Hotels Limited vs Investment Merchant Bank Limited2 where the Supreme Court stated that an appeal does not automatically operate as a stay execution and that more is required to be advanced to persuade the court that it is desirable and just to stay a Judgment pending appeal. The Supreme Court stated that in exercising its discretion whether to grant stay or not, the court is entitled to preview the prospects of success of the proposed appeal. It was further submitted that the appeal herein is doomed to fail because the appeal spins around whether or not the appellant was in order to unilaterally calculate the judgment sum and levy execution on the basis of that sum. It was contended that the law in this jurisdiction is clear on unilateral computation of the judgment sum. In support of this argument, the court was referred to the case of Barclays Bank v Zambia Union of Financial Institutions and Allied Workers3 where it was held that- It is quite obvious that the parties were not able to agree on what amount was due to the complainant's members under the terms of the judgment. The proper course that the complainant should have taken was to have t he R9 amount assessed, inst ead of unilaterally computing the sum payable and proceeding to levy execution on that amount. It was not open to the complainant t o unilaterally comput e the sum payable and levy e x ecution of the amount: Execution can only be levied on amounts due by the court in a judgment or agreed to by the parties to an action and incorporated into a consent judgment. At the hearing of this application, the appellant relied on his affidavit in support filed on 26 th August, 2019 and on the affidavit filed on 27th September, 2019. He briefly submitted that if the said ruling is not stayed, he will suffer irreparable damage and that his appeal has prospects of success. In response Mr. Mwamba, Counsel for the respondent relied on the skeleton arguments in opposition to summons for an order for stay of execution. In his oral submissions, h e m erely resta t ed the contents of th e skeleton arguments. I have taken time to study the case record , the judgment and rulings of the lower court, the judgment and rulings of this court, authorities cited and the circumstances surrounding this matter. I note th at stay of execution pending a ppeal is a discretionary rem edy. A p arty is not RlO entitled to it as of right. The court's discretion must be exercised judiciously on well-established principles. The prospect of success is a key consideration in considering whether or not to grant an order for stay of execution. In casu, without going into the merits of the appeal, I do agree with Mr. Mwamba, Counsel for the respondent that the pending appeal revolves around the unilateral calculations for damages and execution of the same in total breach of the settled principles of the law. The case of Barclays Bank cited above refers. Further, taking into consideration the circumstances of this matter and the recent Judgment of the Supreme Court in the case of Zambia Revenue Authority v Post Newspapers Limited(supra), I am of the view that there is nothing to stay in the Ruling of the lower Court. In light of the foregoing, I do not find sufficient reasons that would make me exercise my discretion to grant an order for stay of execution. Accordingly, this application is refused with costs to the r espondent. Dated this 6 t h day of December, 2019. HONOURABLE MRS JUSTICE P. C. M NGULUBE COURT OF APPEAL JUDGE.