University of Lusaka Limited v Attorney General and All Unknown persons and Ors (APPEAL NO.2/2024) [2024] ZMCA 86 (9 April 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/08/556/2023 APPEAL NO.2/2024 BETWEEN: (" , • ,~' • UNIVERSITY OF LUSAKA LIMITED =--::---:---... ' :;; -- <'.'..,J' - r•~· , , '. "!/. AND 0 9 A;:·:------,/\ A;~ ':. J '! ATTORNEY GENERAL ~D-: _ ~~- j ·.:~~~:~~t...-1/ ALL PERSONS UNKNOWN ( • - · I( tf]2!, \ • •• •~ I \. r· . • , ' MAUREEN KAKUBO MWANAWASA CONSTANTINE HANGALA CHIMUKA APPLICANT 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT Before Honourable Ms. Justice C. Makungu For the Applicant: Mrs. W. S Kankondo of Messrs Sil & Kay Advocates For the 1st Respondent: Miss N. Chongo Acting Principle State Advocate & Mr. K. ✓ For the 2 nd Respondent: Mr. D. Jere of Messres Dickson Jere & Associates For the 3 rd Respondent: Mr. S. M Lungu & Mrs E. Mwale - Shamwana & Co Malikibo - State Advocate RULING Cases referred to: 1. Dean Mung'omba & Others v. Peter Machungwa & Others (2003) ZR 17 2. Zambia Revenue Authority v. Post Newspapers Limited SCZ Appeal No. 36 of 3. Barclays Bank PLC v. Njovu & Others SCZ 21 of 2019 4. Yosi Miti v. Attorney General SCZ/8/201/2015 Legislation referred to: 1. The Rules of the Court of Appeal S. I No. 65 of 2016 2. The Supreme Court Rules of England 1999 edition Scanned with CamScanner The applicant, pursuant to Order VII Rule 1 of the Court of Appeal Rules as read together with Order 59 Rule 13 of the Rules of the Supreme Court of England (RSC) 1999 Edition, has applied for an order of stay of proceedings pending the determination of the appeal. The application is supported by an affidavit and skeleton arguments dated 23rd January 2024. The applicant has stated that the grounds of appeal have prospects of success and that the appeal will be rendered nugatory in an event that the proceedings,ih the court below are not stayed. The applicant contends that no prejudice will be occasioned to the 1st Respondent who is currently in possession of Lot No. 24802/M situate in Choongwe in the Lusaka Province of the Republic of Zambia, the subje~t 'property of the pr oceedings. Further that, no prejudice will be occasioned to the 2 nd and 3rd Respondents / as they were deemed to be in possession of the property by Ruling of / .,/ the Court below dated 3 rd November 2023. / In the applicant's skeleton arguments, reliance was placed on several cases including Dean Mung'omba & Others v. Peter Machungwa & Others 111 on the court's jurisdiction and discretion to order stay of proceedings pending appeal to prevent an appeal from being rendered nugatory. -R2- Scanned with CamScanner The applicant submits that the six grounds of appeal have prospects of success. The applicant proceeded to bring out portions of its Heads of Argument in a quest to show that the same have prospects of success. I shall not belabor to bring out the said arguments, suffice to state that the same have been read and considered. I was implored to grant the stay of proceedings pending appeal. At the hearing of the application, the applicant's advocate reiterated the arguments advanced in the skeleton argumenfu which I will not rehash. The 1st Respondent's counsel did not oppose this application on the / / basis that no prejudice would be ,occasioned to the 1st Respondent if / I it is granted. I I I ,, ,' The 2nd Respondent opposed the application and relied on the Affidavit and Skeleton arguments in Opposition to summons for an /I order to stay proceedings pending appeal filed on 2nd February 2024. The gist thereof is that in the ruling passed by the lower court dated 31 January, 2023 it was held that the case will now be determined as though it was commenced by writ of summons and not by Order 113 of the Rules of the Supreme Court, which is subject of the application and appeal herein. It was the 1st Respondent's contention -R3- Scanned with CamScanner Jauueoswe:::, 41!M pauueos that the application for stay would not be feasible in the matter as the ruling changes everything, including the prospects of the appeal succeeding. Further arguments revealed that there are now three matters involving the same property in the lower court. This has raised the issue on multiplicity of actions. It was contended that should the three matters be consolidated, they will run as one and if not, the other two matters will proceed as is. To this end, counsel for the 2 nd Respondent submitted that this application s_hould not be granted as it will be a mere academic exercise. Reliance was placed on the case of Zambia Revenue Authority v / Post Newspapers Limited12• ,. ,' wherein it was held: / ,/ "Stay of execution sfJ.ould not be granted for mere convenience ... / neither should ) t be granted purely on sympathetic or moral consideration. Secondly, in exercising its discretion whether to / grant a stay or not, the court is entitled to preview the prospects of success of the proposed appeal." The 3rd Respondent opposed this application by way of an affidavit and skeleton arguments filed on 1st February 2024. The gist thereof is that the applicant's insistence to have the matter proceed without -R4- parties with an interest in the subject matter does not amount to prospects of success of the proposed appeal. That if the application is granted, prejudice will be occasioned as the matter will not be dealt with expeditiously. Reference was made to the case of Barclays Bank PLC v. Njovu & Others (3). The Court in the said matter held: "The Supreme Court has been consistent in its position that orders staying execution of proceedings shall not be routinely granted as they often have the effect of either _denying successful parties of the benefits of their judgme_nts or unduly delaying conclusion of matters to attain the much needed finality to litigation ... " It was the 3 rd Respondents contention that to obtain a stay of , / proceedings pending a~eal, the applicant must demonstrate the appeals arguability?/ prospects of success and the risk of rendering the appeal academic. / I have considered the application, the affidavits on record, the arguments by the concerned parties and the grounds of appeal stated in the memorandum of appeal. The grounds are as follows: -RS- Scanned with CamScanner 1. The lower court erred in law and fact when it held that the 2 nd respondent was entitled to file an affidavit in opposition even though she was not a party. 2. The lower court misdirected itself in law and fact when it held that the 2nd respondent was entitled to file an affidavit in opposition, having been served with court process under the category of 'unknown persons.' 3. The lower court erred in law and fact when i} held that formal inclusion of 2nd and 3rd respondent was -necessary to assess whether the mode of commencement y.nder Order 113 of the RSC, was legit. 4. The lower court misdirected,.itself in law and fact when it held , / / ... that paragraphs: 9, ) '0, 12 and 13 of the 2 nd respondent's affidavit in oppositfon contained material facts and bases upon which the fact's deposed to be anchored. / 5. The lo wet court erred in law and fact when it ordered the joinder of the 3rd respondent to the action pursuant to Order XW rule 5 of the High Court rules on a matter commenced by originating summons pursuant to Order 113 rules of the Supreme Court. 6. The lower court misdirected itself in law and fact when it def erred the determination of the application for consolid t . h a ton w en all the -R6- Scanned with CamScanner facts necessary for the court to make a determination on the application were before it and the parties having been heard. The grant of a stay is discretionary and an equitable remedy. It may be granted on the following principles: 1. Where special circumstances of the case so require; or 11. Where if the stay is not granted the appeal will be rendered nugatory or academic. 111. Where the appellant/ applicant would suffir loss which could not be compensated in damages. (See order 59 / 13 / 2 RSC) / . The Supreme Court in the case of Yo~i Miti v Attorney General < ) / adopted the principle that was ½n:unciated in Winchester Cigarette / / / Machinery Limited that an ~pplicant for a stay can be granted a stay only if he/ she can sho\}1/ that there are special circumstances which take the case out of'the ordinary. A thorough perusal of this matter has not exhibj ted any special circumstances taking this case out of the ordinary. The Applicant contends that the appeal has prospects of success. I am inclined to accept the 2 nd Respondents reasoning that ground 5 has dim prospects of succeeding as it is dealing with commencement of the action pursuant to Order 113 of the Rules of the Supreme -R7- Scanned with CamScanner Court when the lower Court by the Ruling dated 31 st January, 2023 referred to in the earlier part of this Ruling, decided to deem the matter as having been commenced by Writ of Summons. The other grounds of appeal appear to have no realistic prospects of success. I am of the considered view that justice will be better served if all parties with an interest in the matter and who are likely to be affected by the outcome are heard and the matter is disposed of expeditiously. / Under the circumstances, I do not see what prejudice the applicant will suffer if a stay is not granted. / / I therefore exercise my discretion ,=md dismiss the application for stay / / of proceedings. Costs in the cause. / / ., i;>ated this.g_···· day of April, 2024. ~ / C. K. MAKUNG COURT OF APPEAL JUDGE -RS- Scanned with CamScanner