Ranjit Prasad v Manjeet Singh (CAZ/ 08/ 246/2022) [2022] ZMCA 143 (19 July 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) CAZ/ 08 / 246/2022 BETWEEN: RANJIT PRASAD AND MANJEET SINGH Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 19th July 2022 For the Intended Appellant: Mr. A. M. Musoka of Messrs Nhari Advocates For the Intended Respondent: Mr. M. Ngonga of Messrs NCO Advocates EX-TEMPORE RULING Legislation referred to: Court of Appeal Rules, Statutory Instrument No. 65 of 2016 This is a ruling on two applications brought by the Applicant Ranjit Prasad by way of summons of 27th June 2022. The first application is for leave to appeal to the Court of Appeal against the Ruling of 16th June 2022 by which the lower Court refused to set aside a judgment in default of appearance and defence dated 31 st May 2022. Rl The second application is for an order for stay of execution of the said judgment. An affidavit was filed in support of the said application on 27th June 200 sworn by one Ranjit Prasad. By the said affidavit, the deponent states that the lower Court refused to set aside the judgment in default obtained against him on 31 st May 2022 on 16th June 2022. Further, that the said lower Court did not grant him leave to appeal to the Court of Appeal. Being dissatisfied with the said ruling, he has brought this application for leave to appeal to the Court of Appeal as well as an application to stay execution of the judgment. The deponent further contends that his appeal has a high chance or prospect of success. The Court's attention is drawn to the Notice of Appeal and the Memorandum of Appeal exhibited as RP3 and RP4 . A perusal of the Memorandum of Appeal in RP4 reveal the grounds of appeal as firstly, the learned judge in the lower Court having erred in fact and law by dismissing the application to set aside default judgment despite the Applicant having raised issues which required determination of the Court at trial and despite the Applicant having met the threshold for a defence on the merit. The 3 rd ground is that the judge erred when he had prematurely considered the issues to be determined after trial. R2 ... The Applicant further submits that these grounds of appeal are neither frivolous nor vexatious and urged the Court to grant leave to appeal. In relation to the second application, the deponent argues that if the Court grants leave, it is pertinent that the ruling be stayed failing which the appeal would be rendered an academic exercise if the Respondent executes the judgment. The Applicant urged the Court to grant an order for stay. In opposing the application, the Respondent filed an affidavit in opposition on the 18th July 2022 in which the deponent one Manjeet Singh argues that the Applicant's proposed appeal has no real prospects of success. He further states that the grounds exhibited do not have any meritorious point of law or fact on the merit and that this application is frivolous and vexatious. The deponent urged the Court to dismiss the application with costs. I have carefully considered the affidavit evidence as well as the skeleton arguments filed by both Counsel. As earlier indicated, there are two applications before me , firstly for leave to appeal brought pursuant to Order X Rule 4 of the Court of Appeal Rules of 2016. Subrule 5 thereof entitles a party to apply for leave to a single judge of the Court of appeal where leave to appeal has been refused in the lower Court. R3 The import of the foregoing provision is that a single judge of the Court of Appeal is empowered to entertain an application or leave to appeal where the lower Court has declined to grant leave to appeal. In determining an application for leave to appeal, the Court must consider whether the appeal has a real or high chance of success. In the present case, the Applicant argues that the lower Court did not properly consider the issues raised in the draft defence to establish that it had infact met the threshold for a defence on the merit. A review of the draft defence exhibited in the affidavit of 8th June 2022 filed in support of the summons to set aside the default judgment does contain a detailed account of the transactions between the parties. On the face of it, it does appear to raise issues which ought to have been determined at trial. Based on the foregoing, I am satisfied that the Applicant has demonstrated that his appeal has a reasonable or realistic prospect of success. I accordingly allow the application for leave to appeal. I direct that the Notice of Appeal shall be filed into this Court within fourteen ( 14) days from the date hereof. Turning to the second application for a stay of execution, having allowed the application for leave to appeal, it follows that the stay of execution ought to be granted to avoid the appeal becoming an academic exercise. R4 I accordingly grant an order for a stay of execution of the default judgment of 31 st May 2022. Dated at Lusaka this 19th July 2022. N.iiharpe-Phiri COURT OF APPEAL JUDGE t- RS