Musonda v Perfect Milling Company Limited and Another (HP 851 of 2011) [2015] ZMHC 157 (30 October 2015)

., II' THE HIGH COURT FOR ZAMBIA 2011/HP/0851 AT THE LUSAKA PRINCIPAL REGISTRY (CivilJurisdicti:ml BETWEEN: ZACKS CHISHA MUSONDA'" . (' AlfD 3 J Ul:; LUb i PLAINTIFF PERFECT MILLING COMPANY LIMITED 1ST DEFENDANT MADISONINVESTMENTCOMPANY LIMITED 2ND DEFENDANT J f ? ,'" Before The Honourable Mrs. Justice J . K. Kabuka in Chambers, The 30L, day of Octo-::>er.2015. FOR THE PLAINTIFF: Mr. K. Kaunda, Messrs. Ellis & Co. FOR THE 1ST DEFENDANT: N/A FOR THE 2ND DEFENDANT: Mr. L. Zulu, Messrs. Tembo, Ngulube & Associates. RULING Cases and Legislation referred to: [Both Personally and I. S:mny Paul Mulenga and Vismer Mulenga p::-actising as SF Mulenga International) and Chainama Hotels Limited and Elephants Head Hotel Limited and :nvestrust Merchant B3.nk Limited SCZ No. 15 of 1999. 2. N:rampala Safaris (Zambia) Limited and Others vs Zambia Wildlife Authority and Otl:ers SCZ NO.8 /179/2003. 3. Shell and B. P. vs Conidaris and Others ( 1975) Z. R. Rule 51 of RSC as read with Order 3 Rule 2 of the High Court Act. . .•.. \. R2 The Plaintiff applies for stay of execution of a judgment of this court dated 27th April, 2015 which found the 2nd Defendant liable to pay the sum of K21, 003.00 to the Plaintiff. The application is made pursuant to Rule 51 of the Rules of the Supreme Court as read with Order 3 Rule 2 of th~ High Court Act. I:1 the affidavit in S:lpport of the Application, the 2nd Defendant contends its appeal is premised purely on a point of law and the 2nd Defendant will be prejt:diced s~ould the amount found due to the Plai::1tiffby this Court, be in the meantime, paid by the said Defendant, in the event that the appeal is successful. This in substance was the position of Learned Counsei for the 2nd Defendant at the heari::1g of the application inter-partes. The application was opposed by the Plaintiff and a~ the hearing of the Learr_edCounsel re-iterated this position contendins that, prospects of suc:::ess on appeal. He cited as authority there are no the for submission t{je cC.se of Sonny Paul Mulenga and Vismer Mulenga (Both Personally and practising as SP Mulenga International) and Chainama Hotels Limited and Elephants Head Hotel Limited and Investrust Merchant Bank Limited (1). Counsel further cited the case of Nyampala Safaris (Zambia) Limited and Others vs Zambia Wildlife Authority and Others (2) which decided ~hat, to be entitled to a stay of execution, the applicant must demonstrate good and convincing reasons as well as the irreparable damage they may suffer if they were to succeed on appeal and they stay is not granted. The case of Shell and B. P. vs Conidaris and Others (3) was further relied on as defined irreparable injury to mean as injury that ca::1not be atoned for in damages. .> R3 I have considered the submissions by Counsel and the authorities to which I was reier::-edand find that in the circumstances of thi~ case, the 2nd Defendant would be prejudiced in the event of success on appeal, should the Judgment in the meantime, be executed aLd the momes awarded in favour of the Plaintiff paid to him. The s;:ay of execution granted ex-parte on 25th June, 2015 is accordingly hereby confirmed. DELIVERED THE 30TH DAY OF OCTOBER, 2015 ~ -<:<2 .• J. K. KA B U K A JUDGE