Barloworld Equipment Zambia Limited v Safricas Zambia Limited (CAZ/08/298/2022) [2023] ZMCA 396 (10 January 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/08/298/2022 BETWEEN: AND APPELLANT SAFRICAS ZAMBIA LIMITE ST RESPONDENT NATIONAL ROAD FUND AGEN 2ND RESPONDENT Before the Honourable Mrs. Justice A. M. Banda-Bobo in Chambers. / For the Appellant: Mr. M. Nalishuwa of Messrs Mulenga Mundashi Legal Practitioners For the Respondents: Mr. N. Ng'andu of Messrs Shamwana and Co, with Mr. D. M. Chileshe, In-House Legal Counsel RULING Cases referred to: - l. Sonny Paul Mulenga and Others v. Investrust Merchant Bank (1999) ZR 101 Legislation referred to:- • Court of Appeal Rules, Statutory Instrument No. 65 of 2016 • Rules of the Supreme Court, White Book, 1999 Edition 1.0 This is a renewed application by the appellant for an Order to stay proceedings in the High Court under Cause No. 2021 / HPC / 0308, pending the hearing and determination of the appellant's appeal. The application is made pursuant to Order VH rule 1 and 2, as read together with Order 10 rule 5 of the Court of Appeal Rules, Statutory Instrument No. 65 of 2016. L 1 The application 1s supported by an affidavit, sworn by Naomi Lwanga Kalumba, the Senior Manager in the employee of the appellant company and the same was filed on 31 st August, 2022. The affidavit chronicles the commencement of the suit, in the court below, including the initial action that the appellant commenced under Cause No. 2018/HPC/0216, against the 2 nd respondent. The initial action was heard and determined by Judge l. Z. Mbewe on 31•t March, 2020, where she ruled against the 2 nd respondent in that case. 1.2 On 41h June, 2021, the l•t respondent took out suit against the appellant under cause No. 2021/HPC/0308, by way of writ of summons and statement of claim, in which it claimed various reliefs. The matter was before B. C. Mbewe, J. 1.3 However before the main action could be heai·d, the appellant filed an application for the determination of a point of law, on grounds that the 1st respondent's action R2 was an abuse of court process and that the action was res judicata. 1.4 After due consideration of the arguments by the parties, the lower court, on 22nd June, 2022 delivered a Ruling dismissing the appellant's application. The court reasoned that the 1st respondent's action raised questions of both fact and law. Secondly, that the 1•1 respondent was not heard in the first action, hence the matter could not be deemed to be res judicata. Having determined thus, trial in the matter opened, and the 1st respondent concluded its case. 1.5 On 22nd July, 2022, the appellant filed a Notice and Memorandum of Appeal, as it was dissatisfied with the lower court's verdict. On 16th August, 2022, the appellant filed an Ex-parte application for an order for stay of proceedings pending appeal. 1.6 However, by way of Extempore Ruling, the learned judge dismissed the appellant's application, and no reason was given for the decision. This is what has prompted the appellant to renew the application before this Court. 1.7 The basis for seeking a stay of the proceedings in the lower court is, namely that the appellants appeal has good R3 prospects of success as evidenced by the grounds of appeal set out in the memorandum of appeal, that if the proceedings in the lower court are not stayed pending the determination of the appeal,, the decision of this court will be rendered academic and nugatory. That it is desirable and in the interest of justice that the proceedings be stayed and finally, that the 1 •t respondent will not be prejudiced in anyway, if this Court grants the order to stay proceedings in the lower court. 1.8 The respondents did not file any affidavit in opposition. However, the 2°d respondent filed skeleton arguments in opposition. The applicant also filed skeleton arguments in support of their case. 2.0 At the hearing of the application, counsel for each party sought to rely on the documents filed in support of their case. Mr. Nalishuwa, counsel for the appellant made a brief oral reply to the skeleton arguments filed by the respondent. 2.1 As stated earlier, the applicant and 2nd respondent filed skeleton arguments in support of their case. The 1st respondent, despite entering into a consent order with the other parties to file their heads of argument, had not, at the R4 time of this Ruling filed any documents. I have considered the skeleton arguments filed by the applicant and the 2 nd respondent. I am grateful for the authorities brought to my attention. 2.2 For brevity, I do not intend to reproduce the contents of the skeleton arguments submitted. 3.0 I have carefully considered the affidavit in support and skeleton arguments herein. It is trite that an appeal does not operate as a stay of execution or proceedings. To that effect, I rely on Order 10 rule 5 of the CARs, as well as the case of Sonny Paul Mulenga and Others v. Invest Merchant Bank1, which both parties herein have brought to my attention. Further, and as has been submitted by counsel for the applicant, Order 59 / 13 / 2 Rules of the Supreme Court (RSC) of the White Book, 1999 _is pertinent, as regards the circumstances under which this Court can rightly exercise its discretion to grant a stay of proceedings, where it states that:- "Neither the court below nor the Court of Appeal, will grant a stay, unless satisfied that there are good reasons for doing so... This applies, not merely to execution, but to the prosecution of RS proceedings under the judgment or order appealed from." 3.1 In the matter before me, the applicant on 22 nd July, 2022, filed a Memorandum of Appeal, wherein four grounds of appeal were proffered, assailing the lower court's Ruling of 22nd June, 2022. I have painstakingly considered the impugned Ruling. In my view, the learned Judge elaborately considered the issues raised by the applicant in its application for the determination of a point of law, namely that the 1st respondent's action was an abuse of court process and that the action was res judicata. Without pre-empting the merits of the case, at page R29 paragraph 4.21, the court clearly revealed his mind as regards the issue of res ju.di cat a and why he did not think the principle applied in the case before him, and why he was of the view that there was no abuse of court process, nor that there would be a conflict of decisions between the matter adjudicated upon by Justice I. Z. Mbe-..ve and the one before him. I consequently do not consider that there are any real prospects of the appeal succeeding. R6 .. 3.2 In view of the af'orestated, I am of the view that the applicant has not shown that there are good and convincing reasons for me to exercise my jurisdiction and grant an order of stay of proceedings in the lower court. I dismiss the application for lack of merit, with costs to the 2 nd respondent, to be taxed in default of agreement. DELIVERED AT LUSAKA THIS 10TH DAY OF JANUARY, 2023 • .••••..... ~ ••.........••...... A. M. BANDA-BOBO (MRS) COURT OF APPEAL JUDGE R7