Minister of Finance v Secretary to the Treasury Exparte Mhango and Others (MSCA Civil Appeal 17 of 2009) [2009] MWSC 41 (30 April 2009)

IN THE SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVIL APPEAL NO. 17 OF 2009 (Being High Court Civil Cause No. 163 of 2008) BETWEEN: THE MINISTER OF FPINANGEE, coccscssawsnewesaacin 1ST APPELLANT AND THE SECRETARY TO THE TREASURY ....... 2ND APPELLANT AND EXPARTE:HON. BAZUKA MHANGO, MP. .............. 1ST RESPONDENT HON, FRIDAY JUMBE, MP sssiosemocnsseonns 2ND RESPONDENT HON. JOSEPH NJOBVUYALEMA, ....... 3RD RESPONDENT HOR. Nite: MTAR, NUP ov cscsnonencoramancunarey 4TH RESPONDENT HON. B. J. MPINGANJIRA, MP ............. STH RESPONDENT HON. PISHO NKHWAZI, MP ................ 6TH RESPONDENT (On their own behalf and on behalf of all Members of Parliament except Cabinet Ministers) BEFORE: HON. JUSTICE MTAMBO, SC, JA Thabo Chakaka Nyirenda, Senior State Advocate, for the Appellants Kasambara, Assisted by Kita, of Counsel, for the Respondents. Balakasi, Court Official RULING The appellants have brought this application for an order that the execution of the judgment of the High Court delivered on March 05, 2009 be stayed pending the determination of the appeal against it. The respondents oppose the application. There is an affidavit filed in support of the application sworn by Mr Nyirenda, who also appeared at the hearing of the application. The respondents have not filed any Affidavit. Mr. Nyirenda essentially depones that the appeal is likely to succeed and, in that event, that there is no reasonable prospect of recovering the judgment money from the respondents as they are persons of doubtful means, who are already heavily indebted and are unable to meet their obligations to the Malawi government. A statement, albeit brief, of the history of the matter may help to appreciate the conclusion which I intend to reach. In fact there is no dispute about this. Some time before the beginning of the current government fiscal year, the National Assembly resolved that each Member of Parliament (MP) be entitled to a monthly allowance in a sum equivalent to the price of 500 litres of motor vehicle fuel. The fiscal year began to run on July 01st, 2008 and will end on June 30, 2009. The allowance was factored into the budget estimates of the fiscal year and was part of the Appropriation Bill which Parliament later passed into law as the Appropriation Act 2008. Some time in September 2008, the Appellants directed the Clerk of Parliament not to pay the allowance until the first appellant agrees to the payment in writing. And such is the history of the matter. I should now refer to the principles governing stay of execution; they are platitudinous and, therefore, I need not cite any authority for them. They are that: (a) the court will not grant a stay unless it is satisfied that there is a good reason for doing so; (b) the court does not “make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which he is prima facie entitled,” pending the determination of an appeal, and (c) that the practice is that a stay will normally be granted only where the applicant satisfies the court that if the judgment money is paid then there will be no reasonable prospect of recovering it in the event of the appeal succeeding. My understanding of these principles is that a successful litigant may not be deprived of the fruits of his litigation without a good reason and that normally the only good reason to do so is when it appears to the court that there are no reasonable prospects of recovering the money in the event that the appeal succeeds. The justness of this is in the fact that while it is the duty of the court to see to it that a successful litigant should access the fruits of his litigation as quickly as possible, it is also the court’s duty that it does not come about that a successful appeal is not rendered nugatory. And in order for the court to be able to determine whether or not an appeal, if successful, would be nugatory by reason that there is no reasonable probability of the appellant getting the money back, is a matter of facts which must be presented to the court for assessment. The appellant’s assertions are that the respondents are heavily indebted and that they are unable to meet their obligations to the Government. It is noteworthy that the indebtedness being referred to appears to have come about by way of loans which the Government seems to have freely granted the respondents. It is also noteworthy that any loan agreement will, almost invariably, stipulate a mode of repayment. It is also worth of note that the loaner in such agreement will, almost always, first have been satisfied of the borrower’s capacity or ability to honour the obligation. Accordingly, it seems to me untainable for the appellants to now contend that the respondents are persons of doubtful means, without further evidence as to how that has come about. I am saying that the appellants, in these circumstances, cannot advance the respondents’ indebtedness to the Government as a reason for denying the respondents the fruits of their litigation. Besides, it seems to me that the payment of the judgment money may in fact result in the reduction of the indebtedness. There was some reference to the global economic down-turn. It was submitted that this has negatively affected the revenue collection as well as the donor inflow which has in a way made it difficult for the government to implement its planned activities. It was, therefore, submitted that the execution of the judgment would paralyse the operations of the Government especially the rendering of the essential services to its citizens such as health and delivery of security services. Learned Counsel also referred to the forthcoming parliamentary and presidential elections as another area that has drained Government resources. Generally, an appellant’s inability to pay a judgment debt has not been a reason to stay execution. I amaware, however, that it is sometimes a legitimate ground for granting an application for stay if it can be shown that the appeal had some prospect of success and that without a stay the applicant will be ruined — Linotype - Hell finance Limited Vs. Baker [1992] 4 ALL ER 887. I do not intend to comment on the prospects of the appeal succeeding lest it be construed as prejudging the appeal. As for the financial hardship the payment may cause to the Government, this may indeed be so just as it may with any judgment debtor. But it is hard to see how it may ruin the Government in the absence of clear evidence, and this is particularly so considering that it is not a sudden occurrence; it is about funds which have been included in the budget of the current fiscal years. In the result I refuse to deprive the respondents of the fruits of their ltigation. I dismiss the application with costs. MADE in Chambers this 30% day of April, 2009 at Blantyre. JUDGE OF APPEAL N