Lackson Ngoma (suing on his behalf and on behalf of the beneficiaries of the estateOrsof the late Mackwello Mfungwe) v Moshen Zabad Hainder and o (CAZ/08/274/2018) [2019] ZMCA 376 (8 August 2019)

Rl IN THE COURT OF APPEAL OF ZAMBIA CAZ/O8/274/2018 HOLDEN AT LUSAKA {Civil Jurisdiction) BETWEEN: ,,,,.--- . Jl'<T " !l CV,LR 'r- 't LACKSON NGOMA ( suing on his behalf and on behalf of the APPLICANT beneficiaries of the Estate of the late Mackwello Mfungwe) AND MOSHEN ZABAD HAINDER YOTA INTERNATIONAL LIMITED IRFAN SULEMAN NARBHANDH BURDEN MFUNGWE 1 st RESPONDENT 2nd RESPONDENT 3 rd RESPONDENT 4th RESPONDENT Before the Hon. Mrs. Justice P. C. M Ngulube in Chambers For the Appellant: C. M Chibawe, and K. Mambwe, Messrs Ferd Jere & Company For the 1st, 2 nd & 4 t h Respondent: J. Chirwa, Messrs Tutwa Ngulube & Company For the 3 rd Respondent: C. Sianondo, Messrs Malambo & Company RULING Cases referred to: - 1. Muyawa Liuwa v Attorney General SCZ Judgment No. 38 of 2014 2. Moonga and Others v Hamweenda and Others CA appeal No 18 of 2 018 Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument Number 65 of 2016 The brief background of this matter is that the applicant filed summons for an order for leave to appeal against the Ruling of the court below dated 9 th R2 April, 2018. The summons were accompanied by an affidavit. At the same time, the a pplicant filed ex-parte summons for an order to stay proceedings of the court below pending the determination of a ppeal against its Ruling dated 9 th April, 2018. Accompanying the summons was an affidavit and an order which the Court signed on 16th November, 2 018. On 28lh January, 2019, the a pplicant filed an ex-parte summons for an order to stay execution of Judgment of the lower court p ending interpretation of the Order signed by this Court on 16th November , 2018. On the same d ay the applicant also filed ex-parte summons for an Order for interpretation of the Order dated 16th November, 20 18. On 8 th May, 2019, this Court disc harged the Order staying the proceeding of the lower Court as it was m a de in defiance of the Court Rules. On 20 th May, 2019 , th e applicant again filed Ex-parte Summons for an Order to stay execution of the Judgment of the lower Court and an application for interpretation of the Ruling dated 8 th May, 2019 in respect of the legality of the Judgment of the lower Court. The a pplicant's application was accompanied by an affidavit in support. Before th e matter could be heard , the 1st responde n t filed a notice of intention to raise preliminary issues. He r aised the following issues- 1. Whether the court h a ving already dealt with the same application for an order to stay execution of judgment can r eopen it. R3 2. Whether the application is competently before this court as another Judge of the court had already pronounced herself on the same application, 3. Whether the Court of Appeal has jurisdiction to entertain such an application having rendered a Ruling on it on the 6 th June, 2019 . 4. Whether the applicant has locu s standi to bring such an application when they are strangers in this action. The notice was accompanied by an affidavit in support as well as skeleton arguments. The affidavit in support avers that the applicant herein has no right to bring such an application as he is not a party to the proceedings. It is averred that this Court is functus officio with respect to the applicant's application. In th e skeleton arguments, it was contended that this Court is functus officio as the Ruling of 6 th June, 2019 determined the same application raised by the applicant here. To support this argument, the applicant cited the case of Muyawa Liuwa v Attorney General 1 . It was further contended that the applicant should have appealed against the Ruling instead of asking this Court to determine an aspect it already dealt with. It was the 1s t respondent's further argument that the applicant has no right to bring an application to stay execution of judgment as he was not a party to the proceedings at the material time when the High Court dismissed the application for joinder. R4 At the h earing, Counsel for the 1st respondent informed t h e Court that he would entirely rely on the notice, affidavit and skeleton arguments filed into court on 19th June, 2019. Mr. Sianondo, Counsel for the 3 rd respondent submitted that this is a classic case of abuse of court process because the issues raised in the appellant's application are the same issues which this Court addressed in its Ruling of 8 th May, 2019 and that the issues cannot be re-litigated. Further, that a party who wants to have a court re look at its decision, must follow a procedure laid down in Order 13 rule 8 (1) of the Court of Appeal Rules. Order 13 rule 8 ( 1) provides that- Clerical errors by the Court or a judge in any court documents or process, or in any judgment, or errors therein arising from any accidental slip or omission, may with leave of court and within seven days of the judgment be corrected by the Court. Mr. Mambwe, Counsel for the appellant submitted that the appellant's application was taken out pursuant to the Court's inherent jurisdiction to interpret th e Ruling of 8 th May , 2019 wherein this Court discharged the notice to stay proceedings in the lower court granted ex-parte on 9 th November, 2018. The gist of the application being the sanctity of the judgment of the lower court delivered on 20th December, 2018 whilst the notice to stay execution was subsisting. Counsel submitted that order 13 rule 8 cited by RS the 3rd respondent does not arise in these circumstances as the appellants are not calling upon the Court to review its decision of 8 th , May, 2019. With respect to the second preliminary issue raised, the court was urged to dismiss the notice of intention to raise preliminary issues as it was taken out in defiance of the Court Rules. In the alternative, it was submitted that the issues raised in the appellant's application are novel and merely meant to preserve the status. That the Court is being called upon to make a determination on the application to interpret its own order. It was further submitted that the matter before this court is totally different from that which was before another Judge of this Court. With regards to the third preliminary issue raised, it was submitted that the Ruling rendered on 6 th June, 2019 was a Ruling of another Court and that the proceedings under that cause are strange to this matter. It was contended that this Court can not be guided by rulings rendered by other courts. With respect to the fourth issue raised, it was submitted that the appellants are not strangers to this matter and urged the court to dismiss the 1st respondent's application. In reply, Mr. Chirwa submitted that the appellants' application is a clear indication of an academic exercise which is an abuse of court process. That the argument by the appellant that the notice falls short of Order 14A Rules of the Supreme Court is unmuted as counsel raised similar sentiments in the Ngoma case under cause No CAZ/08/274/2018 where the Court of Appeal R6 ably guided. He submitted that these matters are res judicata having been decided upon by this court. As to the issue of locus standi, it was submitted that the appellant is a stranger to this matter and cannot jump on the bandwagon whenever he wishes. Counsel urged the court to dismiss the appellant's application on the point of law for being an abuse of court process. I have considered the applications before me, supporting affidavits and the submissions by the parties. The first issue for determination is whether the 1st respondent's application to raise preliminary issues is competently before this Court. In m y Ruling dated 8 th May, 2019, I did consider in great detail what constitutes a proper application to raise a preliminary issue. Relying on wh at on contents of pages R12 to R15 of the said Ruling, I find that the 1st respondent's application was properly taken out. Having determined that the 1st respondent's application is competently before this Court, I will proceed to consider the issues raised. The first and third issues raised seem to be addressing the same issue and therefore I shall consider them as one. The first issue raised by the 1st respondent is whether the court having already dealt with the same application for an order to stay execution of judgment can reopen it. The applicant seeks to stay execution of the Judgment rendered on 20th December, 2018 by the Court below. As already mentioned in the background of this matter, the applicant herein is not a party to the proceedings. The parties to the proceedings did make an application to stay execution of the R7 said Judgment which the Supreme Court granted. I do not see how execution of one judgment can be stayed twice. Further this Court did make itself clear in its Ruling dated 8 th May, 2019, that the ex-parte order sought was made in defiance of the court rules hence its discharge. For this reason, the Cour t saw no reason to interpret the said order. If the appellant was aggrieved by this, he should have appealed against the Ruling. The first preliminary issue raised therefore h as merit. With respect to the second issue raised, it was submitted that the matter before this Court is totally different from that which was before another Judge of this court. I agree with Counsel for the 3 rd respondent that this is a classic case of piece m eal litigation. With respect to the fourth issue raised, it is not in dispute that the appellant is not a party to the proceedings. A very vital question to be answered is whether the appellant has locus standi to stay execution of a judgment which he is not a party to. In the case of Moonga and Others v Hamweenda and Others2 we opined that: the Appellants not having been cited and/ or joined to the proceedings before the Tribunal, they were non-parties and we agree with them that being non-parties, they cannot benefit or suffer consequences of a Judgment in a cause or matter to which they were not parties. R8 It is thus clear that the appellant being a non-party to the proceedings in the Court below, has no locus standi to stay execution of the Judgment of the lower court. This issue raised, equally has merit. The applicant's application for stay of execution of the judgment of the lower court and interpretation of Order dated 16th November, 2019 is accordingly dismissed. Costs to the respondents same to be taxed in default of agreement. Dated this 8 t h day of August, 2019. HONOURABLE MRS JUSTICE P. C. M NGULUBE COURT OF APPEAL JUDGE.