Malawi Railways Limited v Nyasulu (MSCA Civil Appeal 13 of 1992) [1992] MWSC 6 (15 August 1992)

IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE M. S C.fi. CIVIL NO, 13 OF 1992 BETWEEN: MALAWET BAILWAYS LINTEED EPPLICANTS PAUL T K NYASULU. «aan san aa mS » oRESPONDENT CORAM: TAMBALA, J. Ss FPachi, of Counssil, tor the Applicants sakes, of Coun sol, tor the hesponcdent cic Chigaru, Court This is an applic:ticn for stay of execution of judgment. It is broughe by summons supported by = an affidavit. It is made to me as a single member of the Malawi Supreme Court of Axzveal. It is brought under 0.59 rule 14-(1) of the Rules of the Supreme Court. A similar application was made te the trial Judge soon after the Juccment wes pronounced. It was unsuccessful. The pplicants then decided to make this application to a higher Sadicial forum, roth Ccounsels, wno appeared before me and who have leng experience in the legal practice, are in agreement that this is a fresh application; it is not in any way an eppeal against the ruling made by the trial Judge. hey are furtherc in agreement that I am entitled to subject the anplicetion to fresh scrutiny and make my own Gecision uninfluenced ny vhat transpired when a similar application wes consicered im the: Court below. fo factual Gackoroune on this application may be pertinent at this peint The respondent was employed by the applicants in Octover 1669 8e was initially employed as an executive trainec. ba was promoted several times in the course of the years anc jn LSEGS he rose to the position of Deputy General Manager. on 14th April i989 he was served with a notice to retire the motice was fox six months. He served it anc retired frou the service with the applicants on 3lst October 195%. it woeule seem that according to his contract of emsloyment, the respondent's employment could be terminatec upon his receiving one month's notice or one month's salary in lieu of such notice. (2 GH cous ——— * : Or SS 4 \ N . "1993 The respondent became a member of a pension scheme managec by OLD MUTUAL curing the time that he was in employment with the applicants. It would seem that both the responcent ana his employers used to make contributions into the cension fune. Accorcing to the rules of the pension scheme, the respondent would receive his full pension ané Gratuity if he remained in employment up toc the age of 60 years. It wes estimatec that if he retired at the age of 60 years, his full terminal benefits under the pension fund woule be K17G,000.00. At the time he was retired he was 48 years cold. He had tweive years to go before ne earned his full terminal benefits. After he retired, he was advised by the applicants that his terminal benefits would be in the region of K22,802.2&. The respondent rejected that sum of money. He cemancded his full pension and gratuity as if he retired at the age of €09 years. He argued thet by retiring him prematurely, tne applicants precluded him from remaining in emplcvment till he was 60 years old and able to receive his full pensicn and gratuity. He consecuently suec the epplictents in he Court below and claimed: (a) A Geclaration that his retirement was invalic arc was in breach of the Pension Scheme Rules applicable; and (b) Alternatively, the plaintiff is entitled to his full pension benefits as if he was retired in accordance with the Pension Scheme Rules. He succeeded, He was awardeqd a sum of K160,060.00 as Gamages representing his full terminal benefits which he woula have received if he were allowed to remain in employment up to the age of 606 years. He was also awarded costs of the action. This application is directed against the evard of the sum of K160,000.00. This Court has discretion to grant or refuse an application for a stay of execution of judgment pending appeel. In the exercise of such Giscretion, the Court must, of course, Se guided by jucicial rules. One such rule is that "The court does not make a practice of depriving a successful litigant of the fruits of his litigaticn, and lecking up funds to which, prima facie, he is entitled" pending an appeal. It is alse recognised that when a party is ecpealing, exercising his right of appeal, the court must ensure that the ppeal, when successful, is not rendered nugatory because the successful litigant has scuandered the sums ewarcec, See paragraph 59/13/1 of the Supreme Court Practice, 19°51 Edn. anc the cases cited therein. I agree witn the sentiments expressea by JERE, J. in the High Court case of Stambuli v. Admarc, Civil Cause No. 550 of 1981 (unreported). His Lordship said: \ -~ 3+ Ne. a wet 4 Sa wea: LiBR. VR . "T£ the court were as a habit to refuse the enforcement of its own judgment pending the nearing of apceal in the appellate court, this would be against the public policy, for it would tend to lengtaen the voeriod deliiacaee which a successful narty wouleé collect his Gameces. It would further bring ar wiles of CGeP te erty, hence encouraging perties to take the law into their own hands. BRowever, the courts ao realise that a party who hes lest, has alse, no Goubt, the right to appeal to the anpella ‘te court and such arpeal should not he pre-emeted., It eppears te me what is required is to balance between the two views, but the scales are more weieneo in favour of a successful party." Then, I beer in mind that as a general rule, tne only grounc for a stay cf execution is evicence, by affidavit, encwing thet if the damages were paid there is no reascnable erobability ef getting them back: see, again, para 59/13/1 of the Supreme Court Practice and cases cited thereon. Realising the importance of this rule, Mr Msaka worked very herc and spent much time cemonstra ting before me that the esponcent would not be able te ray back the Camages awarded in the event that the appeal would be successful. Mr Fechi fought back with ecual vigour and tenacity trying to show that his client has sufficient means and that his ability to raise K160,06.00, at any time in the future shovleé not be in question, t tiought that Mr Facni succeeded in cemonstrating that his client has means and ability tc pay wack the sum awardec in the Court below if the appeal succeeds. In his sworn affidavit filed beth before this Court anc in the Court below, the cespondent stated thet ne hes tracing oremises cailed Tondcle Centre ané that he keeps geces worth K30,060.06. He has also # maize mill worth K22,00C.00, &@ butchery worth K18,000.00 end a car worth 20,000.06. This comes to a total of KOO ,000.00. Mr Msaka hac, in my view, no credible evidence tc contradict the existence anc the values of these properties. I wes not impressea with his insistence that the responagent should have prought the report of an accountant te erove the value of the properties I Go not think that a of tne value cf these pr operties coulc only ke staclishec by an eccountent. Then the responéent told this Court that the wlot on which the premises of Tondole Centre are Situatec is valued at K40,006.00. He also owns Plot No. N/11/1 in Namiyango in the City of Blantyre. He valued it at KiCO,00C.00. Mr Msaka saic that accorGing to the valuation roli of the City of Blantyre, the value of the eroperty eo X40,256.,060. roam of the view that the value on the City' valuation coll Goes not always represent the market velue. accept the responcent's valuation of K10C,000.60. But even if we take the valuation preferred oy Kc Msaka, we shall see that the total value of the properties I have just mentioned comes to Ki70,250.00. Mo The list of the rescondent’s properties goes on. He hes a mini bus which he bought on lease hire from Mancala Limited. He said that the value of his interest in the mini bus is K175,246.00. He owns Plot No. BC 712 situate in Sunny Side in the City of Blantyre. There is a hcuse built on it. It was valuec by Mr Chirwa at K285,CC0.00. The vororperty is mertgaged to New Building Society and the balance due to the mortgagee is K151,231.90. He claims an interest valued at K133,760.10. Mr Msaka attacked the valuation by Mr Chirwa. He called this person a mange tree valuer on the ground that he is not registered uncer the Land Economy, Surveyors, Valuers, Estate 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 valuer. Mr Chirwa testifiec before me that he practises in the country as an estate agent. He conceded that he is not registerec uncer the Land Economy, Surveyors, Valuers, Estate Agents anc Auctioneers' Act. He said that no estate agent in the country has been registered under the Act. He has, however, been practising as estate agent for the past 1G years. I have examined Mr Chirwa's valuaticn report. I have notec that Plot BC 712 covers 1.45 acres of land in the heart of the City of Blantyre. There is what is Gescribed as an executive house built on it. I am myself satisfied that the property on Plot BC 712 would properly be valued at K285,000.00. While I would not comment on the effect of lack of registration under the Act on Mr Chirwa's comgetence to practise as an estate agent, I am stil of the view that the value wnich he put on Plot BC 71Z is correct. Mr Msaka submitted further that the successful litigant's ability or inability te pay back the judgment sum awarcec is not the sole consideration. He said that even if I fine that Mr Nyasulu would be unable to pay back the Gemages awarded if the appeal succeeds, it woulé still be within my ciscretion to refuse this application and tne reverse woulc also be true. I woulc agree with Mr Msaka's submission. Inceead, Mr Fachi did not contend otherwise. L think Mr Msaka's submission has the support of the view teken oy UNYOLO, J., in the case cof City of Blantyre v. E Manga and Others, Civil Cause No. 1131 of 1990 (unreported). 3 The ler nec dudge said at nage 3: "I think it is always proper for the court to start from the viewsoint that a successful litigant ought not to oe Geprivec of the fruits of his litigation anc withholding monies to which, prima facie, he is entitled. Tne court snheovlc then consicer whether there are special circumstances which militate in favour of granting the orcer for stay and the onus will be on the arplicant to prove or show such special circumstances. The case cf Barker v. Lavery, which I have citsda above, seems to suggest that evidence showing that there was no probapility of getting the damages back if the appeal succeeded, would constitute special circumstances. Broadly, I would agree with this statement, but it is not a closed rule." It is further supported by what BANDA, C. J., said in Cilcon Limited v. U K Banda, Civil Cause No. 26 of 1991 (unreported). His Lordship said: "The court has a wide discretion in granting or refusing a stay." In the instant case, I must consider the fact that the sum of K160,000.00 awarded is an enormous amount. 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 the applicants are likely to face consicerable cifficulties to recover such sum of money. Then Mr Msaka pointed out that the damages awarded represent terminal benefits which the respondent would have received in the year 20600. He said that the respondent would not suffer anything if he were required to wait for the appellate court's decision in a couple of years. The respondent replied that he would have been earning a salary from the time that he was retired to the time when he would be entitled to receive his full terminal benefits. I do not think that it is right to mix the question of the respondent's salary with that of his terminal benefits. The lower Court thought that he was entitled to nothing for loss of salary. He- was only compensated for a future loss. He has, in my view, been compensated for a loss which would have occurred in the year 2000. Mr Msaka here is saying that instead of receiving compensation for this future loss now, the respondent should only wait for a couple of years for the decision of the Supreme Court. I think that Mr Msaka has made a valid point and his request is not unfair. As for the argument that the respondent is deprived of his salary, it must be noted that the respondent is not sitting idle. He is running a business at his Tondole Centre. He is also running a mini bus bpusiness. He has given me the impression that his businesses are very successful. He is, obviously, using the time. energy and ability which he would have used to earn a salary in generating profits for his business. Then from the list of properties owned by the respondent and the values of such properties, it can be seen that he is not a poor man. He will surely not suffer great hardship Guring the time he will be requireaGd to await the decision of the Supreme Court of Appeal. Having consicered the above factors together with the facts of the case which was tried in the Court below and the judgment appealed against, I am of the view that this is a proper case in which an application for a stay of execution should be granted. I take the view that, despite the fact that there is reasonable probability that the respondent would be able to pay back the damages if the appeal succeeded, there are present in this application special circumstances which would entitle me to exercise my discretion in favour of granting stay of execution. The application is allowed. Stay of execution of the lower Court's judgment pending the decision of the Supreme Court of Appeal is granted. MADE in Chambers, this 13th day of August Blantyre. DG Tambala JUDGE Both Counsels to address me on the question of Tuesday, 18th day of August 1992, at 08.30 hours. D G Tambala JUDGE 13 August 1992 COURT: Case called on 18th August 1992 at 08.30 hours. MR MSAKA: I have no objection to have the costs paid to the other side. MR FACHI: The general rule is that the person making the pplication is condemned to pay the costs. Merry ve. Nickalls, 8 Chancery App. Cases (1872-73), p-205, p.206. The party seeking stay of execution is asking for favour. He must therefore pay for the costs in any event. 59/13/5 - As a rule the applicant will be ordered to pay the costs. These costs must be paid in any event. MR MSAKA: I do not think that the applicant has to pay these costs in any event. If the appeal succeeds, it would mean that the applicant had very good reason to ask for stay. In that situation, should the respondent benefit to the costs incurred when the applicant was stopping him from getting what he was not entitled to? It is a question of reason. It does not follow logic that he should keep the costs when it is decided later that he was not entitled to the money. MR FACHI: COURT: There are costs in the main action and costs for application. Chance of success is not a principle guiding the Court in exercising its discretion to stay execution. My view is that having been given the favour, they should not be allowed to keep the costs. After hearing both Counsels, I would grant the costs of the application to the respondent. MADE in Chambers this 18th day of August 1992, at Blantyre. Nu Ar keel, D G Tambala JUDGE