Rapid Global Freight Limited v Zambia Railways Limited (CAZ/8/320/2019) [2019] ZMCA 394 (18 December 2019)

IN THE COURT OF APPEAL CAZ/8/320/2019 Rl HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: RAPID GLOBAL FREIGHT LIMITED APPELLANT AND ZAMBIA RAILWAYS LIMITED RESPONDENT Before : The Honourable Mrs. Justice PCM Ngulube, JA in Chambers on 12th December, 2019 and 18th December, 2019 For the Appe llant: No appearance For the Respondent: Mr Musonda, In House Counsel RULING Cases re ferred to: l . 2 . 3. 4. Nyampala Safaris Zambia Limited and others v Zambia Wildlife Authority and others (2004) ZR 49 Mulenga and others vs Investrust Merchant Bank Limited (1999) Z. R. 101 Barclays Bank Zambia Plc vs Lennox Nyangu and 601 others, SCZ/8/ 080/2012 John Kunda (Suing as Country Director of and on behalf of the Adventist Development and Relief Agency (ADRA) vs Keren Motors Limited (2008/ HPC/ 550 Legislation re ferred t o : 1. 2. The Court of Appeal Rules, Statutory Instrument Number 65 of2016 The Rules of the Supre me Court, 1999 Edition ' .· .. 1.0 INTRODUCTION R2 1.1 This ruling relates to an application made on th e part of the appellant for stay of execution of a Judgment of the High Court dated 26 th September, 20 19, pursuant to Order VII Rules 1 and 2 of the Court of Appeal Rules1, as read with Order 59 Rule 13 of the Rules of the Supreme Court of England ( 1999 Edition)2 • 2 .0 BACKGROUND 2.1 The b ackground to this application is that t h e appellant took out an action in the Court below against the respondent for damages for breach of contract. The appellant was contracted to transport the respondent's wagons from Chipata to Kabwe within the month of March, 2019. It sou ght damages for breach of contract, payment of K141,960.00 being refund of hire charges advanced to the crane company whose charges were paid globally, demurrage charges for loss of use of the three trucks housing the respondent's three wagons, interest on the sums found due, with costs. R3 2.2 The court found that the appellant failed to p r ove its case for breach of contract and accordingly dismissed it. The cour t h owever found that the respondent was entitled to damages for breach of contract and ordered that they be assessed by the Registrar. The appellant applied for stay of execu tion of the J udgmen t dated 26th September, 2019 before the lower cou rt but it was dismissed. 3.0 MAIN APPLICATION 3. 1 The appellant has now renewed its application for stay of execution pursuant to Order 59 Rule 13(1) of the Rules of the Supreme Court, 1999 Edition3 . It submitted that th e cour t has power to exercise its discretion to grant an order of stay of execution. 3.2 This court was referred to the case of Nyampala Safaris Zambia Limited and other v Zambia Wildlife Authority and others 1, where the Supreme Court observed that- ''. A stay of execution is granted on good and convincing reasons. The rationale of this position is ' .·. R4 clear. Which is that a successful litigant should not be deprived of the fruits of litigation as a matter of course. The application must therefore clearly demonstrate the basis for which a stay should be granted." 3.4 The appellant submitted that there are good and sufficient reasons which should compel this court to grant a stay. The appellant contended that it has high chances of success on appeal and that there are issues that need to be considered by this court on appeal and which might have a different outcome from that of the lower court. 3 .5 The appellant referred to the case of Mulenga and others vs Investrust Merchant Bank Limited2 , where the Supreme Court stated that- "In exercising its discretion whether to grant a stay or not, the court is entitled to preview the prospects of the proposed appeal". RS The appellant submitted that the appeal has high prospects of success and that the court ought to stay execution of the Judgment otherwise it will be rendered nugatory. The appellant further referred to the case of Barclays Bank Zambia Pie vs Lennox Nyangu and 601 others,3 where the Supreme Court stated that- "If there are prospects of success in the pending application, the court will stay execution pending determination of the matter." 3.6 The court was accordingly urged to stay execution of th e Judgment pending a ppeal. This court granted an exparte order of stay of execution on 5 th December, 2019. At the interpartes h earing on 12th December, 2019, the appellant's advocates were a bsent. Mr. Musonda, In House Counsel, on behalf of the respondents opposed the application for stay of execution and s ubmitted t h at a Judgment is stayed in the discretion of the court. 3.7 Mr. Musonda further submitted that a s u ccessful party should not b e deprived of imme dia te enjoyment of the fruits of R6 its Judgment. He referred to the case of Nyampala Safaris and others vs Zambia Wildlife Authority and six others, supra and the case of Mulenga and others vs Investrust Bank, supra in this regard. Mr. Musonda submitted that for the court to exercise its discretion to stay a Judgment the applicant must advance good and convincing reasons. He submitted that none had been advanced by the appellant and that the respondent is a parastatal which cannot reasonably fail to pay the applicant damages in the event that it succeeds on appeal. 3.8 Counsel urged this court to dismiss the a pplication for stay with costs to allow the respondent to enjoy the fruits of the Judgment. We were urged to discharge the exparte order of stay of execution that was earlier granted to the appellant, with costs. 4.0 DECISION OF THIS COURT 4.1 I have considered the Judgment and Ruling of the lower court, the record, affidavit in support and the submissions by Counsel. From the outset, I note that an order for stay of R7 execution is granted in the discretion of the Court. In the case of John Kunda (Suing as Country Director of and on behalf of the Adventist Development and Relief Agency (ADRA) vs Keren Motors Limited4, it was held that- " .. . a successful party should only be denied immediate enjoyment of a Judgment on good and sufficient grounds." 4. 2 This court is required to preview the prospects of success of the p ending app eal as it considers whether to grant a stay or not. In casu, without going into the merits of the appeal, the grounds of a ppeal allege that the court erred when it found tha t th e a ppellant breached its contract with the r espondent. I am of the view that the a ppellant has not shown any special circumstances in favour of granting a stay. Further, the a ppellant h as not proved that the respondent will fail to pay t h e damages awarded to them in the even t that the a ppellant su cceeds on appeal. 5.0 CONCLUSION R8 I am therefore not persuaded to exercise my discretion 1n favour of the appellant by granting it an order for stay of execution. The application for stay of execution is dismissed with costs to the respondent. The ex parte order for stay of execution granted on 5 th December, 2019 is discharged. Dated this 18th day of December, 2019. NJQJJ HONOURABLE MRS. JUSTICE P. C. M. NGULUBE COURT OF APPEAL JUDGE