Solomon Laban Jumbe Ngwenya and Ors v Hope Chanda and Anor (CAZ/ 08/ 550/ 2022) [2022] ZMCA 160 (30 December 2022)

IN THE COURT OF APPEAL FOR ZAMBIA AT THE LUSAKA DISTRICT REGISTRY HOLDEN AT LUSAKA CAZ/ 08 / 550 / 2022 IN THE MA TIER OF: RENEWING APPLICATION AN THE APPLICATION FOR AN ORDER TO STAY EXECUTION OF JUDGMENT DATED 9TH DECEMBER 2022 PENDING HEARING AND DETERMINATION OF THE APPEAL FILED INTO THE COURT OF APPEAL OF ZAMBIA ON 16TH DECEMBER 2 022 IN THE MATTER OF: ORDER XIII RULE 1 OF THE COURT OF APPEAL RULES IN THE MA TIER OF: ORDER VII RULES 1 AND 2 OF THE COURT OF APPEAL RULES BETWEEN: c OF ZA \)~\. I ~----,c..::M Bt ,1 SOLOMON LABAN JUMBE NGWENYA GEORGE MUBIPE KALOBWE CHIKOTI CHANSA / ~O~ AP~ ' _:_..... ""- REMMY PEPALA ~ 11 3 0 OEC 2022 ~ CHOLA NOBLE BWEUPE ~l ---~~, . J / CHIBEKA MWENYA CHISHALA TEMBO KAPAYA ALIDI KAMBWILI NKHOMA ISAAC GUNDA AND '-;. J IVI~ ~,t~I~ -~~ ~= - - / ,----::._ . . 1 st Applicant 2 nd Applicant 3 rd Applicant 4 th Applicant 5th Applicant 6th Applicant 7 th Applicant 8th Applicant gm Applican t HOPE CHANDA FOCUS FINANCIAL SERVICES LIMITED 1 st Respondent 2 nd Responden t Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 30 December 2022 For th e Appellants : For the Respondents : Mr. F . E. Mulen ga Jnr . of August Hill & Associa te s No a ppear a nce RULING Rl l Legislation referred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 of 2016 2. High Court Rules, Chapter 27 of the Laws of Zambia 3. Rules of the Supreme Court Practice, 1999 Edition, White Book Cases referred to: 1. Ny amp ala Safaris Zambia Limited, and others v Zambia Wildlife Authority, and others SCZ No. 6 of 2004 This is a ruling on an ex-parte application brought by the applicants on 23rd December 2022 seeking an order for stay of execution of the judgment of the lower Court of 9 th December 2022 pending the hearing and determination of an appeal filed into Court on 16th December 2022. An affidavit was filed in support sworn by the 2 nd applicant George Mubipe. He stated that the 1st respondent commenced an action in the High Court on or about 23 August 2019 seeking the following reliefs from the applicants and the 2 nd respondent: 1. Payment of the sum of ZMKl ,739,973.19 being the outstanding matured balance as of 2018, on the amount due to the plaintiff from the defendant in relation to the agreement entered into by the parties; 2. Interest on the sum of ZMK 1,739,973.19 due to the plaintiff at the contractual rate of 34% from March 2018 until full payment or such period as the Court may deem just; R2 3. Damages for fraud and misrepresentation 4. Damages for breach of contract; 5. Damages for loss of use of funds; 6. Costs of and incidental to these proceedings; and 7. Any other relief the Court may deem fit . In defending the action, the applicants filed their defence on 23rd October 2019 and the 2 nd respondent filed its defence on 28th October 2019. The 1s t respondent subsequently filed her replies to the 2 nd respondent's and applicants' defences. Further, the 1s t respondent filed her bundle of documents on 1st April 2020 and witness statement on 23rd April 2020. That the matter was heard on 30th May 2022 and being satisfied that the 1st respondent had proved her claims, the Judge in the lower Court entered judgment in favour of the 1s t respondent on 9 th December 2022. Being dissatisfied with the said judgment, the applicants filed a Notice of Appeal and Memorandum of Appeal on 16th December 2022. That following the filling of a second appeal, on 22nd December 2022, the applicants filed an application in the High Court for an order for stay of execution of judgment pending determination of the appeal. The deponent further contended that the learned Judge in the lower Court issued an ex-tempore ruling on 22nd December 2022 granting a conditional stay, the basis on which was that the applicants are to pay security for costs being payment of 10% of the judgment sum which amounts to ZMW 173,897.319. R3 It was further contended that the lower Court had no jurisdiction to pronounce itself on security for costs. The deponent also contended that the appeal before this Court is yet to be determined and that the circumstances forming the basis of this application warrant the grant of a stay to avoid the appeal being rendered academic in view of the threat of execution as the 1st respondent has issued a writ of fifa. The matter was heard ex-parte on 28th December 2022. Counsel for the applicants was present and he relied on the affidavit and arguments filed in support of the application and urged the Court to grant a stay of execution. I have carefully considered the application before me together with the affidavit evidence and submissions on record. The application for a stay of execution of the judgment of 9 th December 2022 has been brought before this Court pursuant to Order VII Rule 1 and 2 of the Court of Appeal Rules. These provisions relate specifically to interlocutory applications being brought before the Court and provide as follows: "1(1) An interlocutory application under the Act shall be notice of motion or summons in substantially Form III and Form IV, respectively, set out in the First Schedule. 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." R4 The foregoing prov1s1ons are self-explanatory. Order VIII Rule 1 relates specifically to the way an interlocutory application can be brought before the Court of Appeal and Rule 2 necessitates such applications being brought before a single judge in the first instance. These are general provisions and not specific to the application before me. Counsel for the applicants has not cited provisions relevant to the application for a stay of execution before this Court. That notwithstanding, Order X Rule 5 of the Court of Appeal Rules provide that: 'An appeal shall not operate as a stay of execution or of proceedings under the judgment appealed against unless the High Court, quasi-judicial body or the Court so orders and no intermediate act or proceeding shall be invalidated, except so far as the court may direct.' Order 59 Rule 13 of the Rules of the Supreme Court Practice, 1999 Edition, White Book is also instructive and provides thus: 'Neither the Court below nor the Court of Appeal will grant a stay unless satisfied that there are good reasons for doing so. The Court does not 'make a practice of depriving a successful litigant of the fruits of his litigation and locking u funds to which prima facie he is entitled.' RS It is trite law that a stay of execution is a discretionary remedy and that the parties are not entitled to it as a matter of right. The Supreme Court pronounced on the principles for the grant of a stay in the case of Nyampala Safaris Zambia Limited, and others v Zambia Wildlife Authority, and others. In that case, the Supreme Court held that: 'A stay of execution is granted on good and convincing reasons. The rationale of this position is 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 of which a stay should be granted.' In considering whether to grant or not to grant a stay, the Court is faced with a consideration of whether the applicant has advanced good and convincing reasons for the grant of the stay of execution. In deciding whether to grant the stay of execution, I have reviewed the documents on record. A perusal of the ex-parte summons filed in this application on 23rd December 2022 highlights two grounds as the basis for the application, as shown herebelow: 1. The applicant's application for a stay of execution of Judgment dated 9 th December 2022 pending hearing and determination of appeal was wrongly declined. R6 2. The Ex-Tempore Ruling declining the application for a stay of execution of Judgment dated 9th December 2022 pending hearing and determination of appeal did not address the core issues raised in the said application. However, the evidence of the applicants in paragraph 27 of their affidavit in support states that the Court below has granted a conditional stay of execution, which requires payment of a sum of money as costs. This somewhat contradicts the assertions in the summons. The applicant's dissatisfaction appears to be in relation to the condition attached to the grant of a stay of execution i.e., the order requiring the applicants to provide security for costs in the sum of 10 percent of the judgment sum (translating into ZMW 173,897.319) . In view of this evidence that the Court below has granted a stay of execution, save to attach conditions thereto, I am of the view that there is no real basis for the renewed application for stay of execution before this Court. According to the applicants, the trial Court in its own discretion granted the stay which is still in force on conditions which it found just to attach. R7 Further, in relation to the applicants' arguments on the order to pay costs, I am of the view that the presentation and framing of the grounds in the renewed application seems to be an attempt to lodge an appeal against the decision of the Court to attach conditions to the grant of a stay. The decision on an appeal is the preserve of the full bench of this Court. Hence, if the applicants are not satisfied with the conditions attached by the lower court in granting a stay, they are at liberty to lodge an appeal and not bring this issue by way of a renewed application for a stay of execution. In view of the foregoing, I am of the view that the application is misconceived and I dismiss it accordingly. I make no order for costs Dated at Lusaka this 30th December 2022. ~ rpe-PhiC; ' COURT OF APPEAL JUDGE R8