Sharon Mundia Nyimba Simwami v Precious Monde Mwiya (CAZ/08/272/2022; NOM 53 OF 2022) [2023] ZMCA 435 (15 February 2023)

IN THE COURT OF APPEAL FOR ZAMBIA NOM 53 of 2022 HOLDEN AT LUSAKA ( Civil Jurisdiction! CAZ/08/272/2022 ~ · '<_ ~½ '~ r - - BETWEEN: l -. J __ _. I± SHARON MUNDIA NYIMBA ~I~~~.~i~ APPLICANT AND PRECIOUS MONDE MWIYA RESPONDENT Cora:m: Chishimba., Sic.h:inga an.d Sharpe-Phiri, JJA. On 3 rd February, .2023 and 15th February, 2023 For the Applicant: Mr. L. E. Eyaa and Mr. B. Phiri of Messrs Linus E. Eyaa and Partners For the Respondent: Mr. E. Tembo of Messrs M. Wamunyima Legal Practitione rs . RULING Sichinga JA delivered the Ruling of the Court. Cases referred to: 1. Mulenga and Another v lnvestrust Merchant Bank Limited ( 1991) Z. R. 2. Burden Mfungwe and Another v Moshen Zabad Haider and Another CAZ/08/052/2019 3. Watson Nkandu Bowa v Fred Mubi.ana and ZESCO (2012) Z. R. 165 4. Zambia Revenue Authority v The Post Newspaper SCZ Judgment No. 18 of 2016 Legislation referred to: 1. Court of Appeal Act, No. 7 of 2016 1.0 Introduction 1.1 This is a Notice of Motion made pursuant to Section 9{b) of the Court of Appeal Act1 for an order to reverse the decision of a single Judge who discharged an ex-parte stay of execution of judgment pending appeal. The Ruling subject to this motion is dated 26 th October, 2022. 2.0 Background 2.1 The respondent herein obtained a favourable judgment from the High Court (Mapani-Kawimbe J) against the applicant, on 30th June, 2022. The subject matter was a con tract for the sale of land, made between the Appellant and the Respondent for part payment of which was to be in form of a motor vehicle valued at K65,000. The respondent paid the monetary aspect of the purchase price, delivered the vehicle to the applicant and took vacant possession of the premises. 2.2 It was later discovered that the motor vehicle given by the Respondent to the Applicant as part payment towards the purchase of the property was not registered in the respondent's name. The applicant sought to rescind the con tract, refunded the purchase price and returned the vehicle after having used it for about nine months. The Applicant then took possession of the property and evicted the respondent's client. -R2- 2.3 The respondent sued the applicant 1n the lower court claiming, among others, specific performance and damages for br each of contract. After considering the evidence, the trial Judge found that the respondent's failure to register the vehicle in her name did not mean that she did not own the vehicle. That as such, the respondent did not fraudulently misrepresent to the applicant th at she owned the vehicle. The lower court also found that the respondent had not vitiated any of the terms of the contract and proceeded to order specific performance of the contract. 2 .4 The applicant then filed befor e the lower court two applications: the first one, for leave to appeal and the second, for a s tay of execution of the judgment. The former application was granted, while the latter was declined. 2.5 On 11 th July, 2022, the applicant proceeded to file before this Court a Notice of Appeal and Memor andum of Appeal. The grounds were couched as follows: 1. The learned High Court Jud ge erred i n f act and law when she held, at page J 33 of the judgment, that there was acquiescence on the part of the appellant that the vehicle registration number BAF 7 427ZM was acceptable as c ons ideration at the t ime of the contract with out considering the evidence showing the lack of full disc los ure by the responde nt as regards the vehicle at the time of the contrac t . -R3- 2. The learned High Court Judge erred in fact and law when she held at page J33 that the appellant breached the contract while the evidence on record shows that by failing to give full disclosure regarding the suit vehi.cle at the time of signing the contract itself constituted a breach on the part of the respondent. 3. The learned High Court Judge erred in fact and law when she held at page J34 of the judgment that the defendant did not fraudulently misrepresent any facts as to the ownership of the vehicle registration number BAF 7427ZM when the vehicle registration certificate which is proof of ownership was not in the name of the respondent who did not disclose the same to the appellant. 4 . The learned High Court Judge erred in fact and law when she held at page J34 of the judgment that the parties were well aware of the issues of ownership of the vehicle when there is no corroborating evidence to show that the letter of delivery of or indeed letter of sale from Yokohama Motors Limited to the respondent was ever given to the appellant at the time if signing of the contract of sale. 5. The learned High Court Judge erred in fact and law when she held at page J34 of the judgment that the appellant was not entitled to rescind the contract when there is evidence to show that the appellant was only aware of the issue of the vehicle registration certificate being in the name of a third party after the contract had already been entered into and the lack of corroborating evidence from the respondent that she made the appellant aware of the same at the time of entering the contract of sale. -R4- 6. The learned High Court Judge erred in fact and law when she declared that the respondent was the rightful owner of the disputed property, granted an order for specific performance and vacant possession, and damages for breach of contract despite evidence showing the lack of full disclosure as. regards the vehicle at the time of the contract which constituted a breach of the terms of the contract of sale. 7. The learned High Court Judge erred in fact and law when she dismissed the appellant's counterclaim in its entirety when there is evidence to show that the respondent. failed to give full disclosure as regards ownership as reflected on the vehicle registration certificate at the time of the contract. 8. The learned High Court Judge erred in fact and law when she awarded the respondent ZMWl,250 for PW4's wrongful ejection from the lodge based on PW4's witness statement when PW4 did not attend trial, identify his witness statement thereby rendering him impossib·le to cross examine and no application was made to have the said witness statement admitted into evidence. 2.6 The applicant also filed an application for an order for stay of execution of the judgment before a single Judge by way of renewal, and the single Judge granted an ex-parte order for the same on 12th July, 2022. However, when the matter came up for inter-parte hearing on 28th July, 2022, the single Judge discharged the ex-parte order for stay in a ruling dated 26 th October, 2022, which is the subject of -RS- this motion. The applicant now seeks an order to reverse that decision of the single Judge. 3.0 Arguments in support of motion 3.1 The motion is supported by an affidavit sworn by one Sharon Mundia Nyimba Simwami, the applicant herein. The gist of her averments being that legal counsel has been availed to her to the effect that special circumstances exist for the grant of a stay of execution of the judgment. 3.2 The applicant herein cited the case of Mulenga and Another v Investrust Merchant Bank Limited1 to the effect that in determining whether to grant a stay of execution, the Court must preview the prospects of success of the proposed appeal. 3.3 As for reasonable prospects of success, counsel submitted that the respondent herein did not demonstrate in her evidence that the applicant was aware of the registered owner of the vehicle at the time the parties entered into the contract. Hence, grounds 1-7 have prospects of success. 3.4 As regards ground 8, it was argued that the lower court awarded damages for wrongful ejection of PW4, who neither testified before the court nor was an application made to admit his witness statement into evidence. -R6- 3.5 The applicant further cited the case of Burden Mfungw e and Anothe.r v Moshen Zabad Haider and Another2 where we stated that an appeal is deemed devoid of prospects of appeal if it is patently hopeless with nothing fit for consideration on appeal. 3.6 The applicant submitted that the single Judge made a finding of fact on the issue of the return of the motor vehicle, yet that is a preserve of this Court at the hearing of the appeal where the Court will have a holistic review of the record of appeal, which is not yet before Court. 4.0 Respondent's heads of argument 4.1 The application was opposed by way of an affidavit in opposition sworn by Precious Monde Mwiya, the respondent herein, and by skeleton arguments both dated 29 th December, 2022. The gist of her affidavit is that the applicant has not raised reasonable grounds of appeal to entitle her to an order for stay of execution. 4.2 The respondent submitted that the applicant has failed to advance good and convincing reasons to warrant a reversal of the single Judge's decision to discharge the ex parte order for stay of execution. Counsel argued further that the applicant is not entitled to a stay of execution by reason only of having launched an appeal. The requisite legal principles must be adhered to, of which the applicant has fallen short. -R7- 4.3 As regards the grounds of appeal having prospects of success, the respondent cited, inter alia, the case of Watson Nkandu Bowa v Fred Mubiana and ZESC03, where the Supreme Court stated: "In an application for stay o.f execution p e nding appeal, the considerations are: the prospects of the appeal s u cceeding and irreparable damage if a stay is not granted and the appellant's appeal succeeds," 4.4 In this vein, the respondent submitted that the main issue at trial was whether there was fraudulent misrepresentation on the part of the respondent regarding ownership of the vehicle that formed part of the payment of the purchase price, and the trial Judge made a determination of this issue. That as such, the proposed grounds of appeal have no prospects of appeal to warrant a stay of execution of judgment pending appeal . 4.5 The respondent further submitted that contrary to the applicant's allegation that the learned single Judge prematurely made a finding of fact regarding the issue of the return of the motor vehicle, the learned single Judge only made a preview of the grounds of appeal and established that the same had very slim prospects of success and insufficient to deny the respondent immediate enjoyment of the fruits of her judgment. -RS- 5.0 Our c ,onsiderations and decision 5.1 This motion requires our determination of whether the applicant's intended appeal satisfies the requirements that would necessitate a stay of execution of judgment pending appeal. The factors that we ought to take into consideration are cemented in various legal principles. 5.2 We note the authorities advanced by both parties 1n support of their submissions. In considering this motion, we will also apply the two-fold test enunciated by the Supreme Court 1n the case of Zambia Revenue Authority v The Post New.spaper4. That is; whether there is a likelihood of the appeal succeeding and whether the applicant's appe.al would be rendered academic if a stay of execution is not granted. 5.3 We note that the main issue in contention in the proposed appeal, as revealed by the first seven grounds of appeal, is the ownership status of the motor vehicle that formed part of the purchase price of the subject property. 5.4 The appellant asserts that the respondent fraudulently misrepresented herself as the owner of the vehicle and yet she was not the registered owner and as such, she was entitled to rescind the contract as the said misrepresentation amounted to a breach of the contract of sale. -R9- 5.5 A reading of the judgment of the lower court shows that the Judge determined this issue by stating that the fact that the respondent did not register the vehicle in her name did not imply that she did not own the vehicle. Secondly, the lower court also stated that there was acquiescence on the part of the appellant when she accepted delivery of the vehicle and enjoyed its use for about nine months when she could have raised the issue of suspicious documents earlier on. 5.6 Without delving into the merits of the appeal, the principle that proscribes an appellate Court from upsetting findings of fact made by a trial court, except in specific instances, inclines us to the conclusion that the appeal has little prospects of success. 5. 7 We are not persuaded by the submission that the appeal would be rendered an academic exercise if the stay of execution is not granted, as the record shows that the respondent did and still intends to use the property for commercial purposes of running a lodge, bar and restaurant rather than selling the same. 6.0 Conclusion 6.1 The applicant's motion for a stay of execution pending appeal is denied . We find no compelling reason for the stay of execution of the lower court's judgment. Denying this motion is not likely to have the effect of rendering the appeal an academic exercise. Nor does the appeal have -RlO- reasonable prospects of success. We accordingly dismiss this motion. Costs to the respondent, to be taxed in default of agreement. F. M. Chishimba COURT OF APPEAL JUDGE cou , SC ~ ~ .............. -.... . N. A. Sharpe-Phiri .____ . . D e_ COURT OF APPEAL JUDGE -Rll-