Seebo International Trading Agencies Ltd and Ors v Indo Bank Zambia Ltd (CAZ 8 116 of 2016) [2017] ZMCA 130 (16 January 2017)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: CAZ/8/116/2016 SEEBO INTERNATIONAL TRADING AGENCIES LIMITED MELCOME MARKETING AND DISTRITUTIONS LIMITED DANYAN ENGINEERING LIMITED 1st APPELLANT 2nd APPELLANT 3rd APPELLANT AND GO'JR’rOFAPPE^ INDO-ZAMBIA BANK LIMITED SPONDENT Before Hon. Lady Justice F. M. Chisari uary 2017 For the Appellant: For the Respondent: N. Yalenga of Messrs Nganga Yalenga & Associates K. H. Makala of Messrs Makala & Company RULING This ruling relates to an application for stay of execution of the ruling rendered by the trial judge, discharging the interim order of stay of execution pending the hearing of the appeal, and an application to re-open the foreclosure and to pay the judgment sum in instalments. According to the affidavit in support, the background to the application is that final judgment was entered against the appellants for a liquidated amount, to be settled within 90 days of the judgment, which was dated 17th June 2016. The appellants failed to abide by the stipulated deadline in liquidating their indebtedness. As a result, the respondent engaged the appellants in negotiations to extend the period in which to liquidate the outstanding balance. Terms were duly agreed, and a consent order drawn up accordingly. However, the appellants delayed in executing the consent order due to the absence of the Group Managing Director. He was out of jurisdiction, and could not instruct their advocates to sign the consent order. He returned after 15th November 2016 and issued the requisite instructions, pursuant to which the consent order was duly executed and served on the respondent’s advocates on 17th November 2016. To the appellants’ surprise however, the respondent’s advocates indicated, by return mail, that the respondent had rescinded its decision, and that the appellants had up to the end of November 2016 to settle the outstanding balance. Shortly after these developments, the appellants applied for an interim stay of execution to the trial judge pending an application to re-open foreclosure, and payment of the judgment sum in instalments. The trial judge granted the stay and heard it inter-partes. At the inter-partes hearing, the appellants referred to the negotiations, and the subsequent change of position by the respondent. According to the appellants, the conduct of the respondent was highly prejudicial to the appellants as they had built an expectation that they would be given up to the end of November 2016 to liquidate their indebtedness. They as a result had entered into agreements with third parties for the financing and repayment of the sum due to the respondent. The said arrangements had reached an advanced stage and could not be cancelled without the appellants incurring huge costs. Upon considering the application, the trial judge took the view that the application was devoid of merit, and dismissed it as a result. She also discharged the ex-parte order of stay of execution she had earlier granted. Aggrieved at that decision, the appellants filed a notice of appeal on the 15th December 2016, three days after the said decision had been handed down. The ground on which it is sought to agitate that ruling is the following: The learned trial judge in the court below erred in law and fact when she held that the respondent had defaulted on condition precedent of settling unapplied interest before signing the consent order and could not therefore plead promissory estoppel. The appellants also filed an ex-parte application for stay of execution of the ruling sought to be impugned, pending the hearing of the appeal, and the application to re-open the foreclosure and to pay the judgment sum in instalments. The application was filed on the same date the notice of appeal was filed. Upon considering the application, I formed the view that it was necessary to hear the matter inter-partes. I therefore set a date of hearing. On the return date, there was no appearance for the respondent, despite service of process having been effected on the respondent’s advocates. I allowed the appellants’ advocate to argue the application, and reserved ruling to a later date. Before I could deliver the ruling however, the respondent’s advocates filed in an application to arrest deliveiy of the reserved ruling, and to re-hear the application pursuant to the inherent jurisdiction of the court. That development necessitated appointment of a date on which the application could be heard. I thus did not deliver the ruling, but appointed the 27th December 2016 at 08:30 hours for hearing of that application. On that date I was informed that service of the application had not been effected on the respondent’s advocates as the firm was on recess. Learned counsel appearing for the respondent, Mr. Khosa applied for an adjournment to enable them obtain instructions for a response. I directed that an affidavit in opposition be filed in by 4th January 2017, and that I would deliver the ruling on the 13th January 2017. I have not seen the affidavit in opposition to the respondent’s application to arrest the ruling. On the view that I have taken of the application before me, it is unnecessary to advert to the grounds of opposition to the application for stay of execution, advanced in the affidavit sworn by learned counsel for the respondent. The application filed by the appellants is for stay of execution of the ruling discharging the interim order of stay of execution pending hearing of appeal, and application to re-open foreclosure. It will be noted that the application that was refused by the court below was for stay of execution pending re-opening of foreclosure. That refusal led to formulation of the ground of appeal recited above, which ground raises promissory estoppel. Although the ground of appeal does not expressly state that the appeal is against the refusal to stay execution of the judgment of the court below, it is obvious that the appeal is against that order. The ruling appealed against starts with these words: This is an application by the Respondents herein for an order of stay of execution of the order granting leave to enter final judgment made on 17th June 2016 pending the hearing of an application to re-open the foreclosure and pay judgment sum in instalments pursuant to Order 36 rule 10 of the High Court Rules CAP 27 of the Laws of Zambia. And later in the ruling, the trial judge made the statement appealed against, and went on to observe that the appellant had not adduced any evidence to show that they had made concrete arrangements to ensure that they did not default again if given an opportunity. The application for stay of execution was on those grounds dismissed, and the interim order of stay of execution discharged. The skeleton arguments filed on behalf of the appellants, although erroneously indicating they are for the respondent, clearly state that the appellants seek stay of execution of the judgment by way of foreclosure pending the hearing to re-open the foreclosure, on the ground that promissory estoppel applies. It is rendered clear that the appeal before this court relates to the refusal of stay of execution of the judgment by the court below. That is the substantive appeal, which the court is required to determine. That being the case it is incompetent to seek to obtain an order of stay of execution from a single judge of the court as is proposed to be done by the appellant. An analogy can be drawn to an appeal against refusal of injunctive relief, or of leave to file an application for judicial review. An appeal against such a decision is made to the court, and it is incompetent for a single judge to grant an injunction, or leave to file an application for judicial review pending the hearing of an appeal against the order of the court below. This view is premised on Section 9 of the Court of Appeal Act No. 7 of 2016, which enacts the following: 9. A single judge of the court may exercise a power vested in the court not involving the decision of an appeal,.... Order VII (2) 1 Court of Appeal Rules stipulates the following: 2.(1) An application to the court not involving the decision of an appeal shall, unless made in the course of the hearing of an appeal, be made in the first place to a single judge. By implication, a single judge cannot determine an appeal, as an appeal lies to the court in accordance with the rules, as provided by section 12 of the Court of Appeal Act. That being the case, the application before me is incompetent. It is accordingly dismissed with costs. Delivered this day of F. M. CHISANGA JUDGE PRESIDENT COURT OF APPEAL 5