Malawi Railway Limited v Nyasulu (Civil Case 13 of 1992) [1992] MWSC 1 (18 August 1992)

I N THE M/\LhWI SUPR EME COURT OF APPEl\L '• ll.'l' BLI\N'l'YrtE BETWEEN ; M~Lll. W I ~ nI LWAYS LI HIT ES . ,.l: PPL I CJ\NTS Pll. UL T K NY ll. SU LU . . , . ~ORM~: TAM Bl\Ll,, J. --.....__ I? ac h i , o i Coun .'::,:::i. , tcr the liµt": lic .::.111ts l~esponc'.i.ent t 0 1: tl-1e r-·i sa :c, , of Co•-1;1 :;c-l_ Ch i,;F) ru , Ccur l:: C J c•r k l< iJ L I N G t 0 ,, s :::,y Th is to me summons i s I t I t th e ~~u 1,~,s c f for stay of .<3upport e d by ~n ~1ppli c ;· ti c n the Supre me Court. is b;:·ou q l1 c is mn de c x,;:icu tion of an judgm ent. a.ff id avi t . a sing le member of the It is brought under 0.59 Malaw i S upr eme Court of 1\--:-,~enl . 11. sim ilar rule 1 1:l- ( 1 ) o f the appli c a ti o n was ~aue The judgme n t we::~; applica nts t h e n dccid·:f1 t; : 1:1akc this application t o a hi gher r: oth Ccun::;el.s, who appeared before me and judicial f orum. who have in it i s not in agreem~mt tlla.t th is i 2 tr ial any way a n 2p pe :LL a90.in s t am entitled to Judge , to fre ,_~h scrutiny 2nd ma k e my own ::n.ibject th e decisio n un i;. f luc nce-:.1 by sim ilar ar)r,l ic2. t ic n 1,,-J?.s ccns j_,__-;,_::, ce: :;~ j r., th -: Cou.r-t be low . th~ tr ial Judge soon a f ter It was unsuccessful . 'Ih ey a rc furth 8,: in -:H;r,::<cime nt th a t legal practice , are the ruling mad e by ftf:! Sh a.pplication; l cng expG ri e nc e t1·a n spired wh e n a~)':";lj_c;_:ti o r, 0ron 0 1rn ccd . 'v\wt: the th e in '" I cl l , :,c wc:[3 tllis poin L 1:;2 (:k ,·:;rc11,1c, of f3ct u al ::-, t this ap[1.lication T he n:::·sr;o nde nt wa s fl'l ay be ,~mployecl by the pertinen t He was initially employed as an applica n t s in Oct obc~ 196 9 ;~r·o1(1o tc'.d s0 vet:'al executive t ra J.n r~;.,. the c ourse of th e year s ~ne i n 1 9CS h e rose to the positi o n of Deµuty Ge ner'-"1 he was s erv ed l"i atta(JCr . n o tice was f c,_~ s ix mo n th s " He tvi tb a n o ti ce t o _,-- et.ii~e th,:; service with the a p plic ants served it a nu r e t ired f ;:_-i1. :i t o his .\ t 1:c:JLd sec in on 31st Oct ober 19 i39 .. c ontrac t of ern :_)1oym::-,nt _ t :,-_,. r ,:: s;,:>onuent's emp loymen t c oul d be tcrminatec rcco J vi ng cne month's noti c e o r one month's s al~~y in li eu of s uch no t ice. l4U1 I\pril 19B9 tl12t ac co:!.·,Jin g ,xpo n his c,n T l': € tim e s in - 2 - time th at he wa s The r e spondent became a mem b e r of a pension schem e ma nag e d by OLD MUTUAL the in d uring e mpl o yment with the applican t s . It wo ul d seem that both the res po nden t and his employers used to meke contributions into the pe nsion fund. According to t he r.ules of the p ens ion s c heme , :1is full pension a nc g r a t ui ty if h e remained i.1 employment u p to the age of 60 It wa s estimated that if he retired at the age of 60 y e a rs. years, his L:i ll terminal ben efits und er the pension f u n d woul d b e Kl 7 0,000.00. At the tim e he was retired he was 4 8 y ear s old. He had twelve years to go before he earned h is full termin a l b enefits . r esponden t would receiv e th e After h2 re ti red, he was advised by terminal benefits wou l o be t he applicants o f region the th at his He The r e spondent r e j ected that sum of money. K2 2 , e 02 . 28. d eman d ed his full p~nsion and gratuity as if he retire d at that by retiring him t he pr em a turely, t he applicants precluded him from remaining in em p l c~m ent ti ~ l he was 60 years ol d and a b le to receiv e his t h e f u l l ippli : ~ nts i n he Court below and cla i med : consequently f J years. He argued g ratui ty o pe nsi on a ge of sued and in He ( a ) (b) A declara ti on that his retirement was a r c was in brea c h of ap plicable ; invali d t he Pension Scheme Rules and Alternativel y , the plain tif f is entitled to his full pensio n b enef i ts as if h e was retired in a ccordanc e with th e Pension Scheme Rules. He was re pre senting h is ful l sum of Kl60 , 000 o 00 Be suc ceed ed.. a s te r minal benefits which h e damage s in woul d em p lo y ment u p He was also awarded costs of th e action o This a pplicati on is directed against t he c·,ar d of t he sum of Kl60 , 000 o 00. t o the age of 60 years . if he were allowed awa rd od a r eceived remain have to f u nds r efuse to grant or a practice of de 9 rivin g "The cou rt does not mak e a n This Court has discretion judgment pend ing app lic a tion for a sta y of execution of appea l o In t h e exerci s e of such d iscretion, the Court must , of c o u rse , b e guided by judicial rules o One such rule i s t ha t a the fruits of his liti g ation, and s uc ce ssful liti g a nt of l o c ki n g up is entitled " pe n di n g an a ppeal o It is a lso recognised that when a part y i s 2~? ealing, exercisin0 his righ t of appeal, the cou r t must ensure thi:t r e nder e d nuga t or y bec au se t he successful litigant has squandered t h e See p aragraph 59 / 13 / 1 of the Supreme Court sum s I agre e Practice, 19 '.:: l Edn. o nd the c ases cit e d t h e sent i ments expresseo by JERE, Jo in the High Cou rt wi t h c a s e o f Sta □buli Vo Admarc, Civil Cause No o 550 of 1981 (unreported) o His Lords h ip sai d: the a pp eal, when su c c essful , t o which , pr ima facic , he aw arded. therein , i s not - 3 - as in the v;e re ha:.:>it :-:> olicy , the court for i t would to :x~ nc:: i ng a judgment r:p ~~ cl late cotlr' t , " If re f use the e nforce me n t of its own t :ie hearing this woul d be of app eal to agai n st the p u b lic t:,e p eriod within which a succ2ssful ::-. .:,rty leng ti1 c: n It would fu~ t her b ring a n woul 6 c o ll ect his dam2 0 cs. e l em 2 nt cf unc e c t 2 inty, hence oncouragin; p2r t ies to the t a k 2 cocrts co h as ::021 i s2 that a t o the 2:?[-'Q ll 2te a l so,. no doub t, the: right to ar;: ;)2a l couct 2nd such 2 ~•!,:>e<Jl sho u l d no t be p re-s m,::- ted . It 2 p p e2.rs to me what is r e q uire d is to b a l an c e bet ween the in fav our of 2 successful :,) a r ty ." H..:-we v cr , p arty w:10 hes 1 c s t , t:-1e scales 2.n,. more w0 igh ed l aw iato their own two view s, bu t :-ian Cs . t cri<5 the 'Ih-2n , them back~ and cases cited the Supr eme Court Prac t i c e I be~~r in mind that as a c;ic n era l ru le , t h e only g r ounc for a stay of 2xecution is evidence, by affidavit, ~he wing t hat if the damages were pa id t here is no re o scna~le p ro ba~ ili t y of get tin g see, aga i n, para 59/13/1 of thereo n. i mpo~t a nce of this ru l e , Mr Msaka wor ked very Re2l iG ing t h 2 ha re'; a n d spent muc h that the ce s p onde nt wou ld not be able t o pa y bec k th e ~amagcs a w2 rde~ in th e e vent that th e app€al wou l6 be succ es s f ul . Mr F 2chi fou g ht b ac k with equa l vig our zrnC:: to s h ow that his cli e n t has suffici en t means and t ha t hjs ab i l i t y to i n the futur e shou l ~ not be in ~ai s e Kl 60,00.00, a t any t i me in ~.- i.: e stion -, I to p ay de mons tr a ti nc; that hib c 1 i cn t ha s me2ns and a!:)i 1 j_ t y a p pe a l ~a ck the t he su c c e eds. time o em o nstr.:::ting b e fore me the Co u r t bel ow tenacity t ryi n g sum awac6eG suc ceeded that Mr tho ugh t Fach i if in a t c He a.rlc a.no t h e se c o n tr adic t In his sworn 2 bu tc hery wor th ¥.16,000 . 00 the Vc:Jlues of the s2 p roperties. in my view, n o er e ( i 'Jle ev i6 s nce the ·ron<: cle Centi~~ :1 as a 1 so c1 ff .idav it f i 1 ed bo th bef ore th i s Court rw b2.s t(;;sp onde.rit stated t ha t 2. nc in th(~ Co 1Jr t below, that h s: kee 1)s :, .c err:ise s cctll·:.:Q tre.c)i i1(] g c c 6 s wort .h K 3 0 , 0 0 0 " 0 G " r: m c: i 2, e mi 1 1 w or t i1 c a r worth K22, 00 C . Ci0, .: 2 0 , GOG, 0 0. Thi s com0s to 2 tot al of K~ 0, GOO. 00 . Mr Msaka ha -:: , the I w2. s not e x ist e nc8 anc' i m;:: :e;.ss e C wit h his insist2nce that s :--1oul d hav e b rought the report of an acco unt an t to pee ve th e value t ha. t p roof of th e value of tl1 s ~ ro p e 1-·ties. an of the c. cc o unt 2; nt. Llot o n wh ic h the premis~s o f 1ondole Centre ar e s it u 2 te t i s in v a lu ed f-1° 21s0 o wns Plot Noo Nr-:/11/1 it at Namiy a n go t h2 v ~lua t ion Kl OO, OOC . 00 . Mr Msak a sai ~ that accocding t o :- oll o f i c t. he Ci ty 's , 40, 2 5 G o CiO" I am of th::: v 2l u 2 ti o n roll does n8t always r9presen t I the res p o nc' ent 's v 0L.,1at ion of K100, 000. GO " But even ,"'"'c c 2::1 t i f ws take t h e valua tion ~referred 0y ~r Msa k a , we shal l see that th e to t 2l value of th e pr o per ties I hav e just men tion e d com es to Kl70,250.00. the City o f Blantyce, th e value of the r::o :> ert y cou lC 00ly be tole~ es ta o lis het t his Court the Ci ty of Blantyre" p r operties T\1e n I oo not ti1i nk the mar~et v ~ lue . c::; t K4 0, 00C ., OO. the rss,:Jonc: 2n t t'.1e v a l us on c esponoent b y t ha t ,,iew t hc:,t value c the in f--!e - 4 - The list of the respondent's properties goes on . He has a mini bus which he b ought on lease hire from Mandala Limitedo He said that the value of his interest in the mini bus is Kl75,246o00 . He owns Plot No . BC 712 situate in Sunny Side in the City of Blantyre. There is a house built on it. It was valuec by Mr Chirwa ot K285, OCO. 00. The pro p erty is mortgaged to New Building Socie ty and the balance due to the mortgagee is Kl 51,231.90. He claims an interest valued at Kl33,760.10. Mr Msaka attacked the valuation by Mr Chirwa. He calle~ t his person a mango tree valuer on the ground that t he Land Economy, Surveyors, he Valuers, Esta te Agents and Auctioneers' Act. He contended that Mr Chirwa is not qualified to be registered under the Act and he is not entitled to practise as an estate agent or valuero is not registered under Mr Chirwa testified before me t hat he practises in the country as an estate agent. He conc2ded that he is not the Land Economy, Surveyors, Valuers, registered under He said that no estate Estate Agents and Auctioneer s ' Ac t . agent in the country has been re:gistered under the l\ct. He has, however, been pra ctising as estate agent for the past 10 years. I have noted that Plot BC 712 cove rs 1.45 acr es of l and in the There is what is descri b ed heart of the City of Blantyre. I am myself satisfied as an ex ecutive h o use built on it. that the proper t y on Plot BC 712 would p roperly be valued at K26 5,000.00. While the effect of lack of registration under th e Act on Mr Chirwa's competence to pra ctise as an esta t e agent, I am stil of the view that the value which ne pu t on Plot BC 712 is correct . I have examined Mr Chirwa ' s valuation report. I would not comm-2nt on the that furt hc~ Mr MsDka submitted find that Mr Nyasulu would b e unable to pay back successful litigant's abi lity or ina~ili t y to pay back the judgment sum awarded is not th e so le considerat i on o He said th at even i f the I d.2mages awarded if the apr eal succeeds, it would still be within my dis cretio n. the r-efuse t his applica tion and I woulc. agree with Mr Ms aka' s reverse would also be true . submission. Indeed, Mr Fachi did not contend othe rwise. I think Mr Msaka' s submission has the view taken ;:,y DNYOLO , J ., in t '.te cas e of City of Blan t yre v. E Manda Rnd Others, Civil Cause No. 1131 of 1990 (unreported) . 'I'h c J.,.:-.:_ i J ,::, ,::i J;_;:dge .saio a.t 0age 3~ the support of to "I think it is always proper for the col.u:: t to start from the vi c w?o int th~t a succes sful litigant ought not to be depri v Ed of t he fruit s of his litigation anf withholding monies to which, prima f~cie , he is then cons1aec whether entitled. in there are special circumstznces which militate the onus f2vour of gr anting will be on show such special circumstances. The case cf Barker v. Lavery, which I hav e cit26 2bove, seems to suggest that the orcer for st;:;y anc The court shoulc. the a~plicant to pro ve or - . .. ,· there was no probab i lity of evidence showing that s u cceeded , getting the damages back if the appeal would constitute special circumstances o Broadly , I would agree with this statement, but it is not a closed ruleo" It is further supported by what BANDA, C. J., Limited Vo L K Banda , Civil Cause Noo (unreported). His Lordship said ~ said in Cilcon 26 of "The court has refusing a stay." a wide discretion in granting or In the instant case, sum of Kl60,000o00 awarded that amount. the Although the respondent has adequate means to raise this sum of money and pay it back if the appeal succeeded, he may not willingly do so and f ace to conside~able difficulties to recover such sum of rnoney c I must consider the fact the applicants are enormous likely is an to mix the question of that it is right He was only compensated for a future loss . Then Mr Msaka pointed out that the damages awarded represent terminal benefits which the respondent would have He said that the respond ent received in the year 2000 . would not suffer anything if he were required to wait for th e a p pellate court's decision in a couple of years c The respondent replied that he would have been earning a salary from the time that he was retired to the time when he would I do not be entitled to receive his full terminal benefits . think the respondent ' s salary with that of his terminal benefits . The lower Court thought that he was entitled to nothing for loss He of salary . has , loss which would have occurred in the year 2000 ,, Mr Msaka here is saying that instead of receiving compensation for this future loss the res p ondent should only wait for a cou p le of y e ars now , I think that Mr Msaka for the decision of the Supreme Court . ha s made a valid point and his request is not unfair o l\.s fo r that the respondent is deprived of his s a lar y , it must be noted that the respondent is not sitting i d le . He is running a busin e ss at his Tondole Centre , fle the is also running a mini bus business . He has given me im p re ss ion that his businesses are very successful . He is, obviously , using the time , anergy and ability which he would have used to earn a salary i n generating profits for his business . in my view, been compensated for a the argument the from Then the r es pond ent and the values of such properties , it can be seen th a t he is not a poor man. He will surely not su f fer great h a rdsh i p during the time he will be required to await the de c i sion of the Supreme Court of Appeal . list of properties owned by Having considered the above factors together with the facts of the case which was tried in the Court below and th e - 6 - judgment appealed against, I am of t h e view that t his is a proper case in which an a pplication for a stay of execution take the view that , despite the fact should be gran ted o the respondent that ther e would be able the appeal if a ppl ication special succeeded, circumstances whi ch would entitle me to exercise my discretio n in favour of gran ting stay of execution. to pay back there are pre sent in is reasonab le pr obability that the damages th i s I The appli cat ion is allowed. Stay of executio n of the lower Court's judgment pending the decision of the Supreme Court of Appeal is granted. MADE Blantyreo in Chambers, this 13th da y of August D G 'I' arnbala JUDGE Both Counsels to address me on Tuesday, 18th day of Augu st 1992, at 08 . 30 hours o the question of D G Tarnbala JUDGE 13 August 199 2 COURT: Case called on 18th August 1992 at 08 030 h ou~s o MR MSAKA: I ha ve no objection to have the c ost s pai d to the other sideo MR FACHI: The general rule is th at th e person making the application is condemned to pay the co sts. Merry Vo Nlckalls, (1872 -73), Po20 5, p.206 0 8 Chancery Appo Cases MR MSAKA: The party seeking stay of execution i s asking for f avo ur . He must therefore p ay for the c osts in any event. 59/13/5 - As a rule th e applicant will be ordered to pa y th e costso These costs must be pa i d in any event. I do not think that t he applicant has to p ay these If the appeal succ e ed s, it costs in any even t " would mean t hat the applicant had very good reason to ask for stay " that situation, sh o uld the respo ndent be n efit to the costs incurred when the applica nt was stoppi ng him from getting what he It is a question of reason. was not entitled to ? It does not follow logic that he shoul d k eep the costs when it is decided later that he was not entitl e d to the money o I n - 7 - MR FACHI: There are costs in t he main action and costs for applicationo Chance of success is not a p r inciple guiding the Court in exer c ising its discretion to stay execut iono My view is that having been given the favour, they should not be allowed to k eep the costs o COURT: After hearing both Counsels, costs of the application to the respondent o I would grant the MA DE in Chambers this 18 th day of August 1 992 , at Blantyreo \\•~ ~ (\,'-,,/lt-c,( I , D G Tambala JUDGE