Pulse Financial Limited v Kumwenda (HP 404 of 2014) [2015] ZMHC 155 (10 November 2015)

HI THE HIGH COURT =OR ZAMBIA AT THE PRnlCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jur~sdiction) ._--. n-- , n "J':f 2"'- U I' • BETWEEN PULSE FINA 'KIAL LHUTED APPLICANT AND JAQUELINE ~UMWENDA RESPONDENT Befcre Honorable Mr. Justice C. F. R. Mchenga SC For the Applicant: L. Shula, J & M Advocates For the Respondent: C. K. Mulenga, CKM Associates R U LIN G The celay in delivering this ruling is regretted. The respondent has applied for the stay of the court's judgment dated 28~h April 2.015, pending the hearing of her a:Jpeal against it in the Supreme CO. Jrt. 5re has also applied, pursuant to The Evidence (3ankers' Books) Act, Chapter 44 of the Laws of Zambia, for an order that the a~plicart render a full account of her indebtedness to them. R2 In addition, she h3s pursuant to Order 30 of the High Court Rules of the High Court Act, Chapter 27 of the Laws of Zambia, applied for restitutio, of goods that were damaged as they were being removed from her property whe, the writ of possession was being executed. The applications a~e supported by affidavits. The relevant parts of the affida.its are that she only got to know of the court's judgment en 29th May 2015, when her tenants were being Evicted. She also deposed that if the judgment is not stayed, her appeal will be rendered nugatory and a merE academic exercise. She deposed that when the writ of possession WeS executed, damage was caused to furniture that was being removed from 'er property; the value of the damaged property can offsEt the money she is alleged to owe the applicant. All the applicatiJns have been opposed. In the affidavits in opposition, Francis Musaonde Banda, a legal officer with the applicant, deposed that the respondent has not demonstrated that there is any prospect of her appeal to the Supreme Court succeeding to warrant the stay of the judgment. He also deposed that since the writ o~ possession was executed, there is nothing to stay. In addition, he deposed tha-::The Evidence (Bankers' Books) Act does not allow one to apply to ha.e an account rendered in the circumstances of this case. R3 At the hearing, it was agreed the parties would to file in skeleton argu~ents or written submissions. At the end of the prescribed period, the submissions that were placed on the record of proceedings were those that had been filed on behalf of the applicant. ~s Shula ~eferred to the cases of Sony Paul Mulenga & Others Elephant's Head Hotel Limited and Arthur [1999] Z. R. 101 and Hilton v v Braunskill, 481 US 770 (1987) and submitted that the respondent has not jemonstrated that her appeal has merit and is li <ely to succeed. She argued that in the circumstances, granting the stay will injure the applicant by denying them the enjoyment of the fruits of the judgment. I am indetted t.;) counsel for her submissions and I have taken them into account in at'ri ving at my decision. As Ms Shula has rightly submitted, before a judgment can be stayed on the grou1d that there is an appeal ~ending, the appellant must demonstrate that the appeal has merit and is likely to succeed. The respondent has not demonstrated that it is the case. In fact, there has been no reference to the grounds of 3ppeal in the application. I have also conside-ed the respondent's application that the applicant renders an accourt. The respondent did not cite any provision of The R4 Evidence (Bankers' Books) Act on which the 3pplication is premised. Further, I find the application that the applicant restores her damaged prJperty is misconceived. Order 38 of the High Court Rules, on v/hich the appli.:ation is premised, only sets out the procedure the court will adopt wh2n dealing with different types of applications. Consequently, I finj no merit in any of the respondent's applications. The ex parte oreer granted on 17th June 2B15, staying my judgment of 28th April 2615, is 1ereby discharged. Costs to the applicant, to be agreed and in default, to be ta:<ed. Delivered th's 18 th day of Novembe 2815