Opportunity Bank of Malawi Limited v Kaira and 66 Others (MSCA Civil Appeal 18 of 2017) [2017] MWSC 10 (11 April 2017)

IN THE MALAWI SUPREME COURT OF APPEAL SITTING AT BLANTYRE MSCA CIVIL APPEAL NO. 18 OF 2017 [Being High Court, Mzuzu Registry, Civil Cause Number 191 of 2016] BETWEEN OPPORTUNITY BANK OF MALAWI LIMITED APPLICANT/APPELLANT AND AARON KAIRA & 66 OTHERS CORAM: Due to a restructuring pr ess the Respondents were retrenched. At that time it also happened that the Respondents were indebted to the Applicant/Appellant in various sums courtesy of staff loans. Apparently pursuant to existing terms and Conditions of service the Applicant/Appellant asked the Respondents to set out how, post retrenchment, they were going to liquidate the sums owing. Either because the Applicant/Appellant were not satisfied with the responses or they got no response they resolved to deduct all sums owing from the terminal benefits due to the Respondents at the point of retrenchment. It was the The Applicant/Appellant was not best pleased. First they applied before the High Court in Mzuzu[Hon. Lady Justice DE Gabrielle sitting] for a stay of execution pending appeal. The Court declined to grant the application. On the summons and in so far as we can read the said Court did so in the following words: ‘stay of execution denied. The matter should proceed for assessment and the judgment paid into court pending the determination of the appeal. So ordered’, The Applicant/Appellant then appealed to this Court against the entirety of the High Court’s decision. They have since filed Ground f "Appeal. They also applied, . We h ard the application on in this Court, for a stay of execution pending ap March 29, 2017. This the ruling. THE APPLICATION Like we have said al c appeal. It is according In the affidavit su ting the application Counsel for the Applicant/Appellant depones in paragraph 1 a hat the assessment of damages is ongoing and that the Respondents are claiming*the sum of K10million to K15million each as damages with the result that the total claim will be upwards of K700,000,000.00. In paragraphs 16 and 17 Counsel alleges on the one hand that the Applicant/Appellant is not in the best of health financially and frankly would not be able to raise the K700,000,000.00 and still carry on operating. On the other that the justice of this case tilts towards a stay of execution of the judgment herein. incapable of execution it appears to us that an application for an order to stay a phantom execution is as ill-advised/conceived as it is incapable of being granted. On the small matter of leave it is our view that the Applicant/Appellant did not require leave. The record might indicate that the judgment was delivered in Chambers but that did not in our judgment engage paragraph (c) of the second proviso to section 21 of the Supreme Court of Appeal Act. In other words no leave was required to appeal. DETERMINATION/CONCLUSION The Applicants/Appellants clearly misapprehended .. Hon. Justice Madise’s judgment. They thought it was a money judgmen hey have, in trying to protect their interests while the wheels of justic re applied for the accordingly