Zambia National Commercial Bank Plc v Ernestina Sakala and Ors (CAZ/8/ 168/2019) [2019] ZMCA 388 (31 July 2019)

(Civil Jurisdiction) IN THE COURT OF APPEAL OF ZAM~ B HOLDEN AT LUSAKA a ,..._____couRr ~~ ... '4, lJ / J '---~1 ~ l.. . , . (} I J.1, <", C:: Rr-c;, .... .,.......... ·~ C·?,":......__ 'v,, - · ~ (· . ,,,~,,,~ <.:~ ZAMBIA NATIONAL COMMERCIAL BANK P~ C .. :.;i;-~ ~ . ·"IJ ··:. I BETWEEN: PEPU3WQo.c= Vi., ) ( \ f f APPELLANT CAZ/8/ 168/2019 AND ERNESTINA SAKALA & 62 OTHERS 1 ST RESPONDENT BEFORE HONOURABLE MR. JUSTICE M. M. KONDOLO SC For the Appellant : Mr. M Sakala & Mr. C Ngaba of Messrs Corpus Legal Practitioners For the Respondents : Mr. A Siwila, Mr. S Mambwe & Mr. M Lisimba of Messrs Mambwe, Siwila, Lisimba Advocates RULING STATUTES REFERRED TO: 1. Order 59 Rule 13 (1) (A) The Supreme Court Practice (Whitebook) 1999 Edition 2. Order 10 (5) Court of Appeal Rules, Statutory Instrument No. 65 of 2016, Laws of Zambia 3. Order 5 , High Court Rules, Chapter 27, Laws of Zambia 4. Order 59 Rule 13 (1) (A) The Supreme Court Practice (Whitebook) 1999 Edition CASES REFERRED TO: 1. Mulenga & Others v Inve strust Merchant Bank Limited (1999) ZR 101 (S. C. ) 2 . Sub-Saharan Management Consultants (Pvt) Ltd v Sirituta Investments (Pvt) Ltd & Others (citation not provided) R2 of 25 3. Sata v Chimba & Others (citation not provided) .. 4 . Linotype-Hell Finance Limited v Baker (citation not provided) 5. R v Secretary of State for Home Department QBC 1999/0082/4 6. Paddy P. Kaunda & Others-V-Zambia Railways Ltd SCZ/ 13/2001 7. Zambian Breweries v Central Provincial Agencies (1983) ZR, 152 8. Kelvin Hangandu v Webster Mulubisha SCZ/39/2008 9. The Attorney General v The Law Association of Zambia SCZ/3/2018 10. Finsbury Investments Ltd v Antonio Ventriglia and Manuela Ventriglia 2018/CAZ/08/ 126 page J6 11. Nevers Mumba v Muhabi Lungu SCZ/55/2014 12. Mukumbuta Mukumbuta,Sam Mukamamba Kweleka, Mubita Mooto Mooto & Kandumba Munganga v Nkwilimba Choobana Lubinda Richard Mbikusita Munyinda Rosalyn Mukelabai & Mongu Meat Corporation Ltd SCZ/8/2003 Th e background to this matter is that the Respondents sued the Appellant for underpayment of terminal benefits and the matter was adjudged in favour of the Respondents. Being dissatisfied with th e Judgement the Appellant filed a Notice of Appeal and Memorandum of Appeal and applied that the Judgement be stayed pending determin ation of the Appeal by th is Court. Th is Court, on 13th June, 20 19 granted th e Appellant an exparte Order staying execution of the High Court Judgement dated 5 th June, 2019 pending an inter partes h earing which was heard on 9 th July, 20 19 . Both Parties filed Affidavits and Skeleton Arguments in support of their respective positions and at the h earing both presented viva voce arguments. R3 of 25 The application was supported by an Affidavit filed on 13th June, 2019 and the Notice of Appeal and Memorandum of Appeal were exhibited therein. The Affidavit stated that the grounds of appeal had merit and the appeal therefore had reasonably high prospects of success. It was attested that the Appellant applied for an ex parte order for stay of execution from the High Court on 7 th June, 2019 because the Respondents had threatened to execute the Judgement and the application was accompanied by a Certificate of Urgency. The Judge, decided that the ex parte application would be heard interparteson the 13th June, 2019. Pressed by the threatened execution of the Judgement, the Appellant approached the Court on 11 th June so that they be heard but were informed by the Judge's marshal that the Judge had fallen ill and would not be able to hear the application, not even by 13th June as earlier scheduled, but he would instead hear the matter inter partes on the 18th of June. The Affidavit in support exhibited a letter from the Respondents' Counsel which showed that execution of the Judgment was imminent despite the Judgement sum not having been agreed by the Parties. According to the deponent, the mere fact that the matter had been allocated an inter partes hearing date meant that the ex parte application had been refused. The Appellant was worried that the Respondents would execute the Judgement before the inter partes hearing thus having rushed to apply for an ex parte Order from this Court so as not to render the a ppeal a mere academic exercise. R4 o f 25 It was further attested tha t there were special circumstances that warranted the stay of execution b eing granted, namely, that the sum of money adjudged as due to the Respondents was huge, in excess of ZK60,860,283 and execution against the Appellant which was a bank and k ey component of the Zambian financial system would not only adversely affect and paralyse the Appellant but would also adversely affect the economy at large. The other special circumstance was that, if the Respondents were a llowed to execu te the Judgement but ended up losing the case, they would n ot h ave sufficient resources to reimburse the Appellant. The Appellant acknowledged that an a ppeal does not au tom atically operate as a stay of execution, an appellant must satisfy the court that the appeal h as good prospects of success and that a court is entitled to pre-view the prospects of the propose d a ppeal, per Mulenga & Others v Investrust Merchant Bank Limited 111 • It was submitted that as stated in the case of Sub-Saharan Management Consultants (Pvt) Ltd v Sirituta Investments (Pvt) Ltd & Others 121, "The whole purpose of stay of execution proceedings pending an appeal is to prevent irreparable prejudice from being suffe red by the prospective appellant ... the court must therefore be satisfied that injustice would be caused if a stay is not granted . " The other cases cited were Sata v Chimba & Others 131 a nd Linotype-Hell Finance Limited v Baker 141. RS of 25 In his viva voce submissions on behalf of the Appellant, Mr. Sakala submitted that under Order 10 rule 5 Court of Appeal Rules, ("CAR") where an application is refused by the High Cour t a party is entitled to renew that application b efore this Court. He submitted that the ex parte application for stay before th e lower cou rt was accompanied by a Certificate of Urgency and instead of hearing th e matter urgently, the trial Judge decided that he would hear the matter inter partes 11 days later. According to Coun sel, this amounted to the ex parte application being refused and therefore entitling the Appella n t to renew it before this Court. It was submitted that Order 59 Rule 14 (3) The Supreme Court Practice (Whitebook) 1999 Edition ("RSC") provides that where an ex parte application which, by its very nature, must be determined expeditiously is not granted by the High Court, a party is entitled to h ave it renewed before the Court of Appeal and in furth er su pport of this position the case of R v Secretary of State for Home Department 151 was cited. Mr. Sakala opined that as demonstrated by the Grounds of Appeal, the intended appeal had merit. I sh all not restate the Grounds of Appeal which are set out in the Memorandum of Appeal save to state that the submissions in su pport of their merit have been considered. Counsel for the Appellant referred to the letters from the Respondents' Advocates exhibited as "SW3" in the Appellant's Affidavit in support. It was pointed ou t that the letter demanded a liquidated amount wh ich had not been agreed by the Parties as well as threat of execution if the demanded su m was not paid. R6 of 25 Mr. Lisimba opposed the application on behalf of the Respondents stating that paragraph 4 of the Affidavit in opposition filed on 4 th July, 2019 showed that the Grounds of Appeal filed by the Appellant had no merit. He responded to the Appellant's arguments with regard to the merits of the grounds of appeal, which arguments are on record. The second leg of the Respondents' argument was based on the manner in which the application was made, namely that the application had been brought before this Court prematu rely. Counsel took issue with the Appellants conclusion that in terms of Order 59 Rule 14 (3) RSC, the courts failure to hear the Appellant's ex parte application for stay of execution amounted to the application having been refused despite the trial Judge having ordered that the application be heard inter partes. Mr. Lisimba argued that the trial Judge had made no decision on the ex parte application for stay of execution but had merely ordered that the application be heard inter partes. According to him the Appellant was not entitled to rush to this Court to have the application reheard because the lower Court had not refused the application. Mr. Siwila submitted further on behalf of the Respondents by validating Mr. Lisimba's argument that the trial Court had made no decision warranting the Appellant to come before this Court. He added that in this Jurisdiction, the applicable Order in relation to this issue is Order 13 Rule 12 CAR and that it was couched in mandatory terms and no decision having been made in the lower Court, this application was wrongly before this Court. R7 of 25 He furth er opined that Courts regularly exercised th eir discretion to defer ex parte application s and order that th ey be h eard inter partes. He cited the case of Finsbury Investments Ltd v Antonio Ventriglia and Manuela Ventriglia 110 1 where we stated as follows; "What we find in our statutes and rules are provisions that vest jurisdiction to hear an application in both the Court and the Court of Appeal but with the condition that the Court of Appeal will only hear such application if it has first been made before the High Court and the condition is stated in mandatory terms . . . . so in terms of Order 13 Rule 12, the jurisdiction conferred upon the Court of Appeal by Order 10 Rule 4 and 5 is secondary as it can only be exercised when the High Court has refused to grant the application either to appeal or for an Order of Stay. " It was su bmitted that it was an abuse of the court process for the Appellant to rush to this Court and ignore the inter partes hearing date set by the trial Court and that such behaviour should be d iscou raged. He opined that by virtue of the Section 4 of the Court of Appeal Act, this was an Appeal's Cour t and thus has n o origin al jurisdiction in matter s of Stay. With regard to the Appellants submission that the Respondent had threatened to execute th e Judgemen t on the basis of a liquidated sum that had not been agreed by the Parties, Mr. Siwila cited the case of Paddy P. Kaunda & Others v Zambia Railways Ltd (6 l. He stated that the figure n otified to the Appellant was calculated by the Respondents in accordance with th e formula set out by the trial Court and that a notice of re-calculation RS of 25 of terminal benefits had been filed into court and served on Appellant's Advocates on 17th June, 2019 and to date there has been no reaction. Mr. Siwila further submitted that calculation of the dues was not a special circumstance to warrant the grant of a Stay of Execution therefore this ground therefore has no merit. Finally, on behalf of the Appellants, Mr. Mambwe submitted the Court should deter mine the Jurisdiction question even before looking into the prospects of success because it was imperative that it pronounces itself on whether a party should rush to the Court of Appeal where their ex-parte application has not been immediately heard but given a return date. He surmised that it is not only embarrassing to the trial Court for a party to appear before this Court in the manner the Appellant had but was also contrary to the practice rules as we know them. He stated that neither Order 59 Rule 13 (3) RSC (supra) nor the case of R-V-Secretary of State (supra) cited by the Appellant permit a party to abandon an ex parte application and rush to the Court of Appeal merely because an application has not been immediately heard. He emphasised that a party can only come to the Court of Appeal after its application has been refused and he repeated that in this particular case the application was not refused but referred to an inter partes hearing. Mr. Mambwe referred to paragraph 7 of the affidavit in opposition filed on 4 t h July, 20 19 which highlighted the fact that when the Appellant obtained R9 of 25 the ex parte order of stay from this Court on 13th June, 2019 a similar application for Stay was still pending before the Court b elow. The inter partes a pplication before the lower Court was only withdrawn 5 days a fter this Court granted the Appellant an ex parte order. He submitted that th ere can be no clearer case of a buse of Court than for a party to h ave active applications of a similar nature before 2 competent Courts of Jurisdiction. The cases of Zambian Breweries v Central Provincial Agenciesl71 and Kelvin Hangandu v Webster Mulubishal81 were cited a nd which state the principle that wh ere there h as been a n abuse of the court process the erring party s hould be penalised in costs. Mr. Mambwe summed u p by saying that the Appellant's behaviour was unacceptable as it amounted to forum sh opping a nd this Court should not endorse that kind of behaviour and refer th em b ack to the Court b elow to en able that Court to either refuse or grant that applica tion. He asked th at in line with the cited authorities, the Appellant b e penalised in costs to b e taxed in default of agreem ent. Mr. Ngawa r eplied on behalf of the Appellant with regard to th e question of jurisdiction stating that under Order 13 Rule 12 CAR (supra) as read with Order 59 Rule 10 RSC 1 , this Court and the High Court h ave concurrent Jurisdiction to h ear a n application such as the on e in casu. He submitted that in the Finsbury Case2 cited by the Respondent, th is Court stipulated th at it 1 Order 59 Rule 10, The Supreme Court Practice (Whitebook), 1999 Edition 2 Ibid, 10 Rl0 of 25 could h ear such an application wh ere the Applicant shows that special circumstances exist. He opined th at such special circumstances were shown in pa ragraphs 15 to 18 of the Appellants Affidavit in Su pport together with the exhibited letters and particularly on the point of whether or not th e Judgement required assessment. He submitted that those together with the threat of execution constituted s pecial circumsta n ces in terms of Order 59 Rule 10 RSC and made it impractical for the application brought b efore this Court to b e determined by the Court below. Mr. Sakala added that in the face of the threat of execution the inter partes hearing which was scheduled 11 days away would have become an academic exercise and the Supreme Court has stated that courts should not en gage in academic exer cises3. He opined that in terms of Order 59 Rule 13 (3) RSC the ex parte application which if not granted, entitled the Appellant to the protection of this Court by filing a renewed application. He further opined that the a pplication in casu was neither in breach of section 4 of the Court of Appeal Act nor of Order 13 Rule 12 CAR (supra) and was in tandem with the reasoning in the Finsbury Case b ecause the application was first h eard by the High Court before being renewed in this court. He distinguished this case from the Zambia Breweries Case (supra) and the Kelvin Hangandu Case (supra) cited by the Respondents because, according to him, when the ex-parte application for a stay was filed before this 3 The Attorney General v The Law Association of Zambia SCZ/ 3/2018 Rll of 25 Court there was no ex-parte application pending before the Court b elow. With regard to the order of re-calculation he submitted that the decision in the case of Pa ddy Kaunda v Zambia Railways (supra), cited by the Respondents, should be qualified by stating that the calculation has to be agreed by the parties and cannot be done unilaterally and execution threatened. He closed by s tating that, in the circumstances, there was no abuse of Court process in this m a tter as the Appellant has a legitimate claim to protection from a threaten ed execution and was entitled to renew the ex parte application before this Court. I have considered the Affidavits filed on b ehalf of the respective parties and well as their filed skeleton arguments and viva voce submissions. I agree with Mr. Mambwe's submissions tha t the issue of jurisdiction should b e addressed before considering the other a rguments presented by the parties. In this regard the question h e posed was as follows; Can a party rush to the Court of Appeal wh ere their ex-parte application h as not b een immediately heard but given a return date? The Appella nt's reasoning is that wh ere the High Court declines to h ear an ex parte a pplication a nd defers it to an inter partes h earing, the n et effect is that the ex parte a pplication h as been refused a nd the applicant is en titled to immediately ren ew its application before this Court. The Respondents on th e other h and a rgue that deferring a n ex parte application to an inter partes h earing dose not m ean that the application h as been refused, no decision h as R12 of25 been made on the application except that it has been deferred to an inter partes hearing; and because no decision has been made the application cannot be renewed before this Court. Counsel for the Appellant advanced an additional argument suggesting that all one had to do was to make an application in the High Court and regardless of what happened there, the application could be renewed in this Court. Both parties referred to the case of Finsbury Investments Limited v Antonio Ventriglia and Manuella Ventriglia 1101 which was determined by this Court. The facts of that case were that Judgement was entered against the Appellant in the High Court late on a Friday evening and the Appellants were unable to obtain a stay of execution over the weekend. The following Monday they filed an ex parte application together with a certificate of urgency but the Judge deferred the ex parte application to be heard inter partes on Thursday, 3 days later. In the meantime, the Respondents executed the Judgement on Monday afternoon. Under the circumstances, Counsel for the Appellant decided to withdraw the application pending before the High Court and came directly to this Court seeking an injunctive relief to prevent further execution of the judgement and for an order that the parties revert to the status quo existing before the Judgement was executed. When the matter came up for hearing the Appellants raised two preliminary issues, namely that the application before the Court had not been raised before the High Court and that this Rl3 of25 Court lacked original jurisdiction, meaning that the application was wrongly before this Court. In that case, we determined that the question that sought determination was, "whether or not this Court has the jurisdiction to entertain an application for an order of injunction against a decision of the High Court or a quasi-judicial tribunal at first instance pending appeal?" In answer to this question we stated as follows, "What we find in our statutes and rules are provisions that vest jurisdiction to hear an application in both the Court and the Court of Appeal but with the condition that the Court of Appeal will only hear such application if it has first been made before the High Court and the condition is stated in mandatory terms." This holding was in tandem with Order 13 Rule 12 CAR (supra) which reads as follows; 12. Where an application may be made to the Court or the High Court, it shall be made in the first instance to the high court. In the Finsbury Case we noted that in terms of Order 13 Rule 12 CAR the jurisdiction conferred upon the Court of Appeal by Order 10 Rules 4 and 5 CAR only related to applications for leave to appeal and to applications for stay of execution and that there was a lacuna with regard to how injunctions should be handled. As provided by Order 1 CAR we filled the said lacuna by referring to the Whitebook and in so doing we turned to Order 59 Rule 10 (9) of the Whitebook (RSC) and held that this Court can hear applications for injunctions as a Court of first instance. R14 of25 In casu, the matter before the Court relates, not to an application for an injunction but to a stay of execution which is squarely captured by the Cou·rt of Appeal Rules meaning that according to Order 13 Rule 12 CAZ an application for a Stay of Execution must be heard, first by the High Court before it is renewed before this Court. The gravamen of the Appellant's argument is that the facts disclose special circumstances which warranted the Appellant coming to this Court and these being that the trial Judge deferred the ex parte hearing to be heard inter partes, on a later date, by which time the Appellant was sure that the Respondents would have executed the Judgement. I shall begin by addressing the Appellant's assertion that when a court defers an ex parte application to a later date to be heard inter partes, it means that the ex parte application has been refused, thereby entitling the applicant to renew the ex parte application in the court of appeal despite the inter partes application pending before the High Court. Practice Direction No.1 of 1993 reads as follows; Ex-Parte Interlocutory Infunctions, etc The Attention of Practitioners is invited to the following practice and procedure to be adopted in connection with ex-parte applications for Interlocutory Injunctions, Interim Attachment of Property, Stay of Judgment or of Execution and similar applications: 1. In an action between two or more parties, it is a normal requirement of Justice that the other side should be notified and heard before an Order is Rl5 of25 made against them or adverse to their position. This principle is amply reflected in, for example, R. S. C. Order 29 (see 1993 Supreme Court Practice) as well as in our own High Court Rules Orders 26 and 27. 2. Ex-Parte Applications of the described above are Justified only when the case is one of real urgency and the Order obtained should generally be expressed to be until a certain day unless a Judge or Registrar otherwise directs. 3. As a general practice, all such Ex-Parte Applications and Orders obtained must be followed by a hearing Inter Partes within a reasonable time unless a Judge or Registrar for good cause shown I otherwise directs. It will be the duty of the party who obtained the Ex-Parte Order to issue a Summons or otherwise make provision on the Order for the endorsement of a date for the Inter-Pates Hearing. In default, the other side may issue the Summons. The cited practice direction indicates that ex parte applications and orders are discouraged unless where the Judge thinks it absolutely necessary to grant them. It is thus desirable that matters be heard inter partes. The Judge retains discretion to decide on what action to take, including deferring an ex parte application to be heard inter partes. This is a position that is supported by Order 59 / 1 / 59 RSC which reads as follows; 59/1/59 Expedition and very urgent applications - " ...... Unless the Court otherwise directs, all applications which merit exceptionally, expeditious treatment are Rl6 of25 listed for oral hearing inter partes. That is so even if the application is of a type which would, in the absence of a direction for exceptional expedition, be dealt with on paper, or at an ex-parte hearing (e.g. an application for leave to Appeal and a Stay of Execution). The reason is that where an application needs to be heard within a very short timescale it is not satisfactory to deal with the matter at an ex-parte hearing, because the other side would be entitled to apply to have the Order discharged or varied and that would necessitate arranging a second very urgent hearing when there was even less time to spare. The Listing Officers have no power to vary the Court's directions and therefore Lawyers and their Clerks should not take up precious time pleading for, still less demanding, an ex-parte hearing, or a decision on paper. When read together, the cited Practice Direction and Order 59/ 1/59 RSC make it clear that Courts are expected to hear all applications inter partes and only hear them ex parte in exceptional circumstances. It is therefore incorrect to conclude that an ex parte application has been refused or dismissed simply because the Court exercises its discretion to hear the application inter partes. At the inter partes hearing the relief sought in the ex parte application remains the same, except that the other party is provided an opportunity to respond. As correctly argued by the Respondents, the clear intention of Order 13 Rule 12 CAR was that this Court remains an appellate Court with regard to • applications for stay of execution. In that regard we stand by what we said in • in the Finsbury Case; R17 of25 " so in terms of Order 13 Rulel2, the jurisdiction conferred upon the Court of Appeal by Order 10 Rule 4 and 5 is secondary as it can only be exercised when the High Court has refused to grant the application either to appeal or for an Order of Stay." In terms of Order 13 Rule 12 CAR, when an ex parte application is deferred to an inter partes hearing, the ex parte application has not been dismissed, it simply means that the Court has decided to hear both parties on the merits and a party should only approach this Court after the application has been decided at the inter partes hearing. The Appellant's . arguments on this point are unacceptable. This brings me to the question raised by Counsel for the Respondents, which really is; Are there circumstances when a party can rush to the Court of Appeal where their ex-parte application has not been immediately heard but given a return date? The Appellant's Affidavit in support of this application states that the reason they rushed to this Court was because the High Court adjourned their ex parte application to be heard inter partes on a much later date despite their Affidavit having indicated that the Respondents were threatening to execute the Judgement. They argued that these were special circumstances which entitled them to seek relief and they relied on Order 59 Rule 14 RSC. The • Respondents stuck to their submission that there were no special • circumstances at all but only a clear abuse of the Court process for which the Respondents should be punished. R18 of25 In the Finsbury Case we considered the wording Order 59 Rule 14 (4) RSC which reads as follows; Order 59/14 (4) (4) Wherever under these rules an application may be made either to the court below or to the Court of Appeal, it shall not be made in the first instance to the Court of Appeal, except where there are special circumstances which make it impossible or impracticable to apply to the court below. We observed that it is similar to the wording in to Order 13 Rule 12 CAR except that our Rules are silent on what happens where there are special circumstances. We then held that where special circumstances exist, we must defer to the practice and procedure provided in the Whitebook. We further stated that in order to fill the lacuna in our rules, we could only turn to Order 59 Rule 10 RSC as regards the granting of an injunction because sub rule 9 of that order provides as follows; Order 59 Rule 10 (9) (9) In any proceedings incidental to any cause or matter pending before the Court of Appeal, the powers conferred by this rule on the Court may be exercised by a single judge or the registrar. Provided that the said powers of the Court of Appeal shall be exercisable only by that Court or a single judge in relation to- • • Rl9 of25 (a) the grant, variation, discharge or enforcement of an injunction, or an undertaking given in lieu of an injunction; and (b) the grant or lifting of a stay of execution or proceedings. (emphasis mine) In the cited case we went further and held that under Order 59 Rule 10 (9) RSC, the Court of Appeal can exercise that power as a Court of first instance. I now find that under subsection (9) (bl, the same principle applies to "the grant or lifting of a stay of execution or proceedings." In the premises, all that remains to be established is whether such special circumstances did in fact exist in the matter before us. I have considered the circumstances, namely, that an application for a stay of execution is an urgent application and was in this instance accompanied by a certificate of urgency and the affidavit in support of the application indicated that there was an imminent threat of execution. The Certificate of Urgency exhibited under "SW3" in the Appellant's Affidavit in support stated that the ex parte application for a stay of execution pending appeal was "extremely urgent and if not heard expeditiously, the Respondent is likely to suffer prejudice as the Complainants are threatening execution." In the case of Nevers Mumba v Muhabi Lungul 11lthe Supreme Court commented on the import of a Certificate of Urgency, thus; "A matter is viewed as urgent f.f it is such that f.t cannot wait for the normal roll or queue to set down the process. This is in R20 of25 circumstances where delay would render the relief sought nugatory or hollow as the delay would occasion irreparable harm. In this case, therefore, while not expected to give details of the irreparable harm or injury that the beneficiary of the certificate of urgency would suffer, it is good practice to have some indication in the certificate of urgency of the apprehended harm. Whether the intimation of a wrong reason for talcing out a certificate of urgency would defeat the certificate itself, is a matter that has not been requested ofus to determine. Suffice it to state that most interlocutory inJunctions are, by their very nature, urgent so that those who seek them are presumed to be making urgent applications. A perusal of the appellant's documents filed with this appeal shows what appears, from the appellant's point of view at least, to be a dire situation which requires immediate intervention so as to prevent some irreparable harm." We wish to emphasise that as stated in the cited case, most interlocutory applications are by their very nature urgent. For that reason, they must be heard expeditiously and where possible, on the same day that the application is made. Though the actual degree of urgency and how soon a matter should be heard is subject to a Court's discretion; the exercise of such discretion is informed, in great part, by the particular facts of each case and the possible consequences on the applicant if the hearing is delayed. In this particular case, one cannot help but sympathise with the position in which the Appellants found themselves. As earlier stated, they had, on 7 th June filed an application for stay of execution, accompanied by a certificate of urgency. The Affidavit in support exhibited a letter from the R21 of25 Respondents' Counsel that execution of the Judgment was imminent despite the Judgement sum not having been agreed by the Parties. The Judge, decided that the ex parte application would be heard inter partes on the 13th June, 2019; 6 days later. However, pressed by the threatened execution of the judgement, the Appellant approached the Court on 11 th June so that they be heard but were informed that the Judge had fallen ill and would not be able to hear the application and as such the matter was moved back to the 18th of June; 11 days after they had filed the ex parte application. The Appellants then sought the protection of this Court on 13th June, 2019. The Court's power to grant a stay of execution is discretionary but the trial Judge did not get an opportunity to exercise his discretion by making a decision which, I assume, was on account of being afflicted by illness. It is not clear why the trial Judge decided that he would hear the application inter partes 6 days later on the 13th June when the application was evidently urgent. In any event, because of illness, the Court was unable to hear the application on the 13th thus leaving the Appellants at the mercy of the Respondents who had threatened to execute the Judgement. The sum of ZK60,860,238 demanded by the Respondents was colossal and execution of such a sum could disrupt the operations of the Appellant which is a large commercial bank. I find that the failure by the Court to hear the inter partes application on the 13th June, 2019 constituted a special circumstance that entitled the Appellant to rush to this Court. and renew the application for a stay of execution under Order 59/ 14 (4) and Order 59 Rule 10(9) (b) RSC. R22 of25 The issue however, is the that the manner in which the Appellant • approached this Court has been described as an abuse of the court process by Counsel for the Respondents. It was submitted that should this Court find that special circumstances exist, which I have, the application should still be dismissed on account of the fact that the Appellantapplied for an ex parte application before this Court when there was an active inter partes application pending before the High Court seeking similar relief. I am of the considered view that the Appellant should have withdrawn the inter partes application pending in the High Court before seeking similar relief in this Court. In the Finsbury Case, Counsel for the Appellants withdrew the application for stay of execution pending before the High Court the moment he felt that the application had become nugatory. I do note however, in casu, after Counsel for the Appellant obtained an ex parte order of stay of execution from this Court, they proceeded to withdraw the inter partes application pending before the High Court. This indicates that Counsel knew exactly what should have been done and cannot hide behind the veil of ignorance. However, in the end result, when they appeared inter partes before this Court, the application pending before the High Court had finally been withdrawn and for that reason that the abuse was no longer continuing and had been somewhat purged but I must say that the stain endured and requires sanction. It is a clear abuse of the Court process for a party to seek redress before one court whilst a similar action or application is pending in another Court. In this particular case, the conduct demonstrated by the Counsel for the " Appellants was quite dismissive and belittling to the trial Judge who had R23 of25 indicated that he would hear the ex parte application inter partes. The Supreme Court has expressed disdain for that kind of conduct and in the cases of Zambian Breweries v Central & Provisional Agencies f71 and Kelvin Hangandu v Webtster Mulubishaf8 1 cited by Counsel for the Respondents, it was held that an errant party must be condemned in costs. In the case of Mukumbuta Mukumbuta & Others v Nkwilimba Choobana & Othersf 121 the facts were that the Respondents engaged in forum shopping resulting in bringing the the High Court into ridicule by making three Judges give conflicting decisions on the same subject matter. The Supreme Court held as follows; it is not the respondents who should be punished in " costs. They are not lawyers themselves. They may not have been following what was going on. On the other hand, their advocates, deliberately and consciously went forum shopping resulting in the parties twice being before this Court and before several High Court Judges. It is the advocates of the respondents and not the respondents who should be punished in costs." This being a superior Court, there was no risk of conflicting decisions but the malady lies in the blatant disregard for procedure and what I earlier described as the dismissive and belittling attitude of Counsel towards the trial Judge. Parties have been reminded time and again that no matter how strongly they disagree with a Judge or even where a Judge is evidently wrong, R24 of25 as officers of the Court they are enjoined to abide by procedure and do the "' right thing. Therefore, despite finding that this Court has jurisdiction to hear the Appellant's application for stay of execution, conduct of Counsel cannot go unpunished and the penalty visited on Counsel in the Mukumbuta case shall be imposed on Counsel for the Appellant in this matter. I have considered the arguments by the Parties with regard to the merits of the appeal and particularly that the sum demanded by the Appellants was not agreed by the Parties as required by the cited authorities. The reason for that is quite simple because even though an agreed formula is applied, a mistake could still be made in the actual computation. Both Parties must agree on the figure and if they fail, the necessary application would be made to the Court. A stay of execution could be granted for that reason alone. I have also considered Ground of Appeal No. 3 in the Memorandum of Appeal and find that the Appellant has presented an arguable case that has prospects of success. Finally, I note that there are 63 Respondents who if paid the fruits of their Judgement and then lose the case on appeal, it would be very difficult, if not impossible, for the Appellant to recover the money paid in execution of the Judgement. In the circumstances the Appellant's application for a stay of execution pending appeal is granted until further order of this Court. However, on the question of costs, having earlier found that Counsel for the Appellant had • abused the court system Counsel for the Appellants is liable for the costs of this application to be taxed in default of agreement R25 of25 Dated at Lusaka this 31st day of July, 2019 . ................................•........... M. M. KONDOLO,SC COURT OF APPEAL JUDGE