Mkomba v Phiri (Miscellaneous Civil Application 1 of 2014) [2014] MWHC 499 (10 June 2014)

IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY MISCELLANEOUS CIVIL APPLICATION NO 1 OF 2014 Between MIR REAM MR OM BA osssessisesiucccxeesinasvanrewesvessecccedensecvcccccssccscsiéxcécciscsetansand APPELLANT And RESUP PIR issinsnesssarancsonsnoarenaneinunneesnsssnnensnsevsvssaasexveevsnmunvevseuvevovssevvsavesss RESPONDENT CORAM: Howard Pemba, Assistant Registrar Dr. Nkhata, of counsel for the Plaintiff Captain Kamwendo, of Counsel for the Defendant Mr. Tepeka, Official Interpreter RULING Background This is an application by the Appellant for stay of execution of the judgment of the Zomba Senior Resident Magistrate pending determination of the applicant’s appeal against the said judgment. The background of this matter is that the Respondent commenced action against the Appellant in the Senior Resident Magistrate Court sitting at Zomba under civil cause no 320 of 2013 claiming damages for trespass, negligence and loss of business. After a full trial, the trial magistrate, in its judgment dated 6" May 2014, found in favour of the Respondent. The Appellant being dissatisfied with the ruling put up a notice of appeal against the said judgment in the High court on the ground inter alia that the Senior Resident Magistrate erred in law and fact in holding that the Appellant was liable to pay special damages complained about without properly applying the principles in relation to causation in the tort of negligence. The Appellant now brings the present application for an order staying execution of the said judgment pending the said appeal. In support of this application, the Appellant filed an affidavit sworn by Dr. Mwiza Nkhata who entirely adopted it during the hearing of the application. In this affidavit, the Appellant’s argument is that they have lodged an appeal to the High Court against the said ruling and that the appeal has a very high prospect of success as it raises substantial issues and therefore that this would be rendered pointless if the Respondent is allowed the liberty to enforce the judgment of the trial magistrate. Therefore they pray that execution herein be stayed pending determination of the Appellant’s appeal. In opposition to the present application, the Respondent filed an affidavit sworn by Captain Atanazio Kamwendo, of counsel. In this document, the Respondent opposes to this application on the ground that the appeal will not be rendered nugatory in the absence of the stay since if the appeal is successful, Respondent is capable of paying back the money. The Respondent therefore avers that there is no basis at all for stay of judgment herein. Based on these premises, the Respondent prays to this court that the Appellant’s application herein be dismissed with costs. That was briefly the evidential summary from both parties and | wish to thank both counsels for their submissions in light of the applicable law relating to the present application. From the totality of the evidence before me, this court is being called upon to determine whether or not an order staying execution of the judgment herein should be granted or not. The Law and analysis The law regulating the present application is provided under Order 59 rule 13 of the Rules of the Supreme Court. The relevant part to this application especially Order 39/13/1 provides that an appeal does not operate as stay on the order appealed against, except to the extent that the court may direct. If an appellant wishes to have a stay of execution, he must make express application for one and the court will grant the stay if it is satisfied that there are good reasons for doing so. Furthermore, Practice Note 59/13/2 provides that where the appeal is against the award of damages, the long established Practice is that a stay will normally be granted only where the appellant satisfies the court that, if damages are paid, then they will be no reasonable prospect of his recovering them in the event of the appeal succeeding: see A. R. Osman and Company v. C. C Nyirenda MSCA Civil Appeal No. 2 of 1994, Atkins v. Great Western Railway Co (1886) 2 TLR 400 As a general rule, the only ground for a stay of execution is an affidavit showing that if the damages and costs were paid, there is no reasonable probability of getting them back if the appeal succeeds However, as alluded to by both parties, the question whether or not to grant a stay is entirely in the discretion of the court and the court does not make a practice of depriving a successful litigant of the fruits of his litigation, pending an appeal and locking up funds to which prima facie he is entitled (see The Annot Lyle (1886) 11P 114 , Monk vs Batram (1891 ) 1QB 346 and Winchester C igarette Machinery Ltd vs Payne (No 2) (1993), The Times, December 15. Case authorities have made it clear that a stay should only be granted where special circumstances so require. The court also emphasized that indication in the past cases do not fetter the scope of the Court’s discretion. The court has taken note of our local case authority of City of Blantyre v Manda and others [1992] 15 MLR 174 where Unyolo J. held as follows; ‘’...court can depart from this general rule ....... authorities suggest that the only basis for exercise this discretion is evidence that there is no probability of getting back money paid if the appeal is successful’’ lt is to be noted that the Court went on to hold that ‘’even if such evidence was produced, a court could still refuse the application for a stay where a grant of the application would be ‘’utterly unjust.’’ In the above case, the Court refused the application for a stay considering the manner in which the Respondents were dismissed from employment. However, | have noted that the facts are different with ct the present case as the former was to do with employment. Furthermore, it is trite law that where an application is made for stay of proceedings, it is necessary that the applicant demonstrates an appropriate case. Prima facie a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are matters of rigid principle and a court asked to grant a stay will consider each case on its merits, but where an applicant for stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that judgment below has been in favour of the other party. In the present case, the Appellant was ordered to pay the Respondent damages as claimed by the Respondent. | must be honest here to say that it has not come clearly before me as to how much was claimed by the Respondent and how much he was awarded. However, it is clear that there is an appeal by the Appellant against the said order pending. The Appellant has stated that the appeal has a very high prospect of success as it raises substantial issues and therefore that this would be rendered nugatory if the Respondent is allowed the liberty to enforce the judgment of the trial magistrate. Counsel for the Appellant has stated that from the affidavit in opposition, it comes clearly that the Respondent cannot pay back the money if the appeal is successful. On the other hand, the Respondent states that the appeal if successful will not be rendered nugatory as the Respondent:is capable of paying back the money. | must say that | am at pains to agree with Respondent as there is no much evidence on record substantiating her claims. There is nothing showing that the Respondent is a person of means and that if the appeal is successful, the appellant will not find it difficult to recover the money. Although the general principle governing the stay of execution of judgments which is agreeable by all is that courts should not make a practice of depriving a successful litigant of the fruits of his litigation, but the court is very mindful of yet another principle covered under the same Order 59 rule 13 of the Rules of the Supreme Court that when a party has appealed, which is right, the court should see to it that the appeal, if successful, is not rendered nugatory. Reading between the lines of Order 59 rule 13 and several cited case authorities, one would envisage that the overriding principle to exercise the mind of the court in staying execution is to avoid making the appeal nugatory if it is successful. Thus, | have tried to strike a balance between these considerations in exercising my discretion as to whether a stay of execution herein should be granted or not. From the evidence before me, the Respondent has not convinced me that should the appeal succeed, she shall be able to repay the damages. There is no record showing perhaps that the plaintiff is employed, there is no evidence of any business that she does that would persuade the court to think that the Appellant would recover the damages. The court believes that if the appeal is not successful, the Respondent will still get her fruits of litigation. On the other hand, if the appeal is successful when it is not possible to recover the damages, the appeal will be nugatory and this will be utterly unjust to the Appellant because he will lose his money yet he will have won 5 the case. In the interest of justice and to ensure that the appeal is not rendered nugatory if it is successful, it is my ruling that the stay of execution of the said judgment herein be stayed pending the determination of the said appeal. However, this court is in total agreement with the Respondent’s counsel that the awarded damages herein must be paid into court so that the latter should pay to whoever is successful in the appeal. | therefore so order. Costs to be in the cause. Made in chambers, this 10° June, 2014 at Zomba # y nw * Howard Pemba Assistant Registrar