Zambia National Commercial Bank (Plc) v Siwila Investment Limited and Anor (CAZ/08/280/2019) [2018] ZMCA 593 (23 December 2018)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA 0--'"'<I-... ( CAZ/O8/ 280/2019 (CIVIL JURISDICTION) BETWEEN: Rl 2 ' ZAMBIA NATIONAL COMMERCIAL BANK (PLC) APPELLANT AND SIWILA INVESTMENT LIMITED 1 st RESPONDENT EVERLIGHTER NDGLOVU (suing as 2 nd RESPONDENT Administratrix of the estate of the late Christopher Siwila Ndhlovu) Before The Honourable Mrs. Justice P. C. M. Ngulube in Chambers. For the Appellant: A. Mwalula, In house Counsel For the Respondent: H. H Ndhlovu State Counsel, Messrs H. H. Ndhlovu & Company RULING Cases ref erred to: 1. Sonny Paul Mulenga, Vismer Mulenga, Chainama Hotels Limited vs Investment Merchant Bank Limited (1999) Z. R. 57. 2 . Watson Nkandu Bawa v Fred Mubiana and Zesco Limited Supreme Court Selected Judgment No. 2 1/2 01 2 3. Zambia National Commercial Bank, Agro Fuel Investment Limited v Everlighter Ndhlovu Supreme Court Judgment No 189 of 2014 R2 4. Nyampala Safaris and 4 Others v Zambia Wildlife Authority and 6 Others (2004) ZR 49 (S. C.) 5. Zambia Revenue Authority v Post Newspapers Limited SCZ Judgment No 18 of 2016 Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No 65 of 2 016 2. The Supreme Court Practice, White Book 1999 Edition. 1.0. Introduction 1. 1. This is the appellant's renewed application for an order to stay execution of the ruling of the court below pending the determination of appeal. The application is made pursuant to Order 59 Rule 13 of the Supreme Court of England 1 and is accompanied by an affidavit sworn by one George Mubanga Kashoki a Corporate Recoveries Specialist in the Assets Management Department of the appellant. 2.0. Background 2.1. The backdrop to this application is that in April, 1999, the appellant commenced an action against the respondents by way of originating summons supported by an affidavit seeking payment of the amount due, d elivery of possession, foreclosure and sale of the property. The appellant asserted that the 1st R3 respondent obtained a loan from it which was guaranteed by the 2 nd respondent, now deceased. The deceased used his property being Lot No. 3976 /M Ngwerere, Lusaka as security for the loan and executed a memorandum of deposit of title deed and a guarantee on 4 th November, 1992. There was a default in the repayment of the loan hence the action before the lower court. The respondents filed an affidavit in opposition and when the matter come up for hearing, the respondents were not before court. The trial court proceeded to hear the matter and rendered a ruling in favour of the appellant on 29 th November, 1999. Following the ruling, the appellant proceeded to issue a writ of possession on 11 th April, 2001. 2.2. On 24th July, 2017 the respondents filed an application to set aside the ruling of the lower court which was passed in their absence. The learned judge in the court below after evaluating the affidavit evidence and skeleton arguments by both parties, decided to set aside the ruling dated 29th November, 1999. Dismayed with that decision, the appellant lodged a notice of appeal and memorandum of appeal before this court on 12th September, 20 19. Further, the appellant also filed an application R4 for stay of execution of the ruling of the lower court dated 3 rd September, 2019. 3. 0. Main application 3.1. In the affidavit in support of this application, it is averred that by ruling dated 3 rd September, 2019, the court below set aside the lower court's ruling dated 29th November, 1999 pursuant to which the appellant repossessed and sold Lot No. 3976 / M Ngwerere, Lusaka to a third party, Agro Fuel Investments Limited. That the pending appeal is meritorious and has high prospects of success . The deponent avers that on 25th September, 2019, the court below discharged the ex-parte order for stay of execution it had earlier granted and hence the application before this court. 3.2. It was the deponent's averment that in its ruling dated 25th September, 2019, the court below stated that its ruling setting aside the lower court's ruling of 29th November, 1999, is not an enforceable ruling which can be executed and that there is no fear of execution by the respondents. He avers that; however, the appellant having sold the property which is affected by the said ruling to a third party Agro Fuel Investments Limited, there is real fear that if the status quo is not maintained by a stay of execution, RS the respondents could levy execution. The deponent further avers that the respondents have already written to the Chief Registrar at the Ministry of Lands requesting cancellation of the Certificate of Title in Agro Fuel Investment's name. 3.3. It is averred that if the ruling of the lower court is not stayed, the appellant will suffer irreparable damage which the respondents may not atone in damages. The court was asked to grant the application sought in the interests of justice. 3.4. The respondents filed and affidavit in position sworn by one Everlighter Soneni Ndlovu, the 2 n d respondent herein. She averred that at no time did she never pledged her property to the appellant as security for a loan availed to the 1st respondent and that the grounds of appeal filed before this court have no merit. She avers that the court below was on firm ground when it discharged the ex-parte order for stay of execution and that the appellant had no power or authority to sell the property in question to Agro Fuel Investment Limited. Further, she avers that the only way interests of justice will be achieved is to have this matter logically concluded as opposed to having frivolous and R6 vexatious appeals. She stated that if the stay of execution 1s granted, the respondents will be prejudiced. 3.5. The appellant filed an affidavit in reply on 22nd November, 2019 sworn by one George Mubanga Kashoki who averred that the property in question was pledged to the appellant by the late Christopher Siwila Ndhlovu who was the defendant in the matter in the cause below and whose estate the 2nd respondent is now in charge as an administratrix. He averred that contrary to the ruling of the lower court of 24th September, 2019 that its ruling of 3rd September, 2019 is not an executable ruling, the respondent has taken active steps levy execution. 3.6. The respondent applied and were granted leave to file a further affidavit in opposition to summons for stay of execution. The said affidavit was sworn by the 2 nd respondent herein and she averred that at no time did the appellant have the right to sell the property being Lot 3976 / M Chibombo as it only had an equitable mortgage over the property and had no certificate of title for the property because the said property was mortgaged to another lender, Finance Bank Limited who had registered a legal mortgage from R7 the year 1988 up until the year 2007 when the mortgage was discharged. 3. 7. She averred that in the matter before the Supreme Court under cause No SCZ/350/2013, the appellant readily admitted before the Supreme Court that it never had power to sell Lot 3976/M. The Supreme Court record of proceedings were exhibited to prove this fact. The deponent further averred that the matter before the lower court is not res judicta as the same never went to trial and that the lower court was on firm ground when it set aside the default judgment. 3.8. It is averred that the appellant does not have any ruling or judgment capable of being enforced and that the parties should proceed with inter-parte hearing of the action under cause number 1999 / HP/ 0766 instead of appealing to this court. She further averred that the Commissioner of Lands cancelled the Title Deed issued to Agro Fuel Investment Limited Number 246310 on 15th April, 2014, and currently the said third party has no Certificate of Title to the said property. That the intended appeal has no prospects of access as the respondents, after finding out that there was a default judgment passed against R8 them, did deposit into court the amount of money alleged to have been owed to the appellant. A receipt dated 9 th April, 2009 in the amount of Eight Million Five Hundred Twenty-Four Thousand Kwacha (unrebased) was exhibited. In summation, she averred that a stay of execution is not necessary as the respondents cannot enforce the ruling of the court below and that what is needed is for the matter under cause 1999 /HP/ 0766 to be determined on its merit. 3.9. In reply the appellant averred that it sold the property in question pursuant to the ruling of the lower court dated 29th November, 1999 and that no admissions were made before the Supreme Court that the appellant lacked power to sale the property in question. To this effect the appellant exhibited a Judgment of the Supreme dated 17th August, 2017 . The deponent also averred that the matter is res judicata as the matter before Justice C. B. Phiri under cause No 2007 /HP /0439 which was subject of appeal in the Supreme Court concerning the same property being Lot 3976/M Ngwerere, Lusaka was settled. 3.10. It is averred that if the Certificate of Title in the name of Agro Fuel Investment Limited had been cancelled in 2014 as alleged, there R9 would have been no need for the respondents to request cancellation of the title deed based on the Court's ruling of 3 rd September, 2019. The deponent also averred that the respondents made payments into court in 2009, 10 years after the ruling of the court below dated 29th November, 1999 which had given them 3 months to liquidate the sum due to the appellant. In summation it was averred that a stay of execution is necessary in this matter as the respondents have clearly taken steps to execute the ruling of the lower court. 3.11. In support of its application, the appellant filed list of authorities and skeleton argumen t. It was submitted that the pending appeal will be rendered an academic exercise if the ruling of the lower court dated 3rd September, 2019 is not stayed. It was further submitted that it is trite law that an appeal does not automatically operate as a stay of execution hence the appellant's application for stay of execution before this court. In support of this proposition the court was referred to the case of Sonny Paul Mulenga, Vismer Mulenga, Chainama Hotels Limited vs Investment Merchant Bank Limited1 where the Supreme Court held that- RlO "In terms of our rules of court, an appeal does not automatically operate as a stay of execution and it is utterly pointless to ask for a stay solely because an appeal has been entered. More is required to be advanced to persuade the court below or this court that it is desirable, necessary and just to stay a judgment pending appeal." 3.12. It was submitted that the grounds of appeal filed in this court are meritorious with a high likelihood of success and that this is a good case for this court to grant stay of execution. It was contended that the appellant will suffer irreparable damage in the event that stay of execution is not granted and the respondents are given leeway to execute the ruling of the lower court and that the respondents will not be prejudiced in any way. In summation it was submitted that the appellant has advanced good reasons for this court to exercise its discretionary jurisdiction to grant a stay of execution. 3.13. The respondent equally filed list of authorities and skeleton arguments in which it was submitted that in exercising its discretion to grant or not to a stay of execution, the court is Rll entitled to preview the prospect of success of the proposed appe al. The court was referred to the case of Watson Nkandu Bowa v Fred Mubiana and Zesco Limited2 in which the Supreme Court laid down considerations to be taken into account when dealing with an application for stay of execution pending appeal as follows- "ln an application for stay of execution pending appeal, the considerations are: the prospect of the appeal succeeding and the irreparable damage if a stay is not granted and the appellants' appeal succeeds. " 3 . 14. It was submitted that the court below did consider the prospects of success when it dealt with and application for stay of execution and found that the appeal is bound to fail as such there was no need to grant a stay execution. It was submitted that the court below was on firm ground in discharging the ex-parte order for stay of execution as there is nothing to be stayed. 3.15. At the hearing of the application, counsel for both parties reproduced the contents of the numerous affidavits and skeleton arguments which I have already considered above. 4. 0. The decision of this Court R12 4.1. I have considered the record, the rulings of the court below and the affidavit evidence filed herein. As noted by Malila JS in the case of Zambia National Commercial Bank, Agro Fuel Investment Limited v Everlighter Ndhlovu3 in which the property in question was subject of the appeal, this case has an exceptionally unusual litigation history, motivated by the relentless effort of Everlighter Soneni Ndhlovu the 2 nd respondent herein to save her late husband's property from sale following a foreclosure order given in favour of a bank. In so doing she commenced various matters, on e of which ended up in the Supreme Court and was decided in favour of the appellant. In the said judgment, the Supreme Court observed at page Jl 7 that, "although the respondent may well have had meritorious grievances, and we by no means make that determination, she choose a totally wrong forum to ventilate them. All her complains could and should in fact have been channeled to the High Court through the same cause in which in which R13 Chulu J , made the ruling which she finds disagreeable, or should have appealed that ruling to us." 4.2. I note that it was in pursuant of the Supreme Court's observations that the respondents moved the court below to set aside the default ruling dated 29th November, 1999. 4.3. A stay of execution pending appeal is a discretionary remedy and is not granted as of right and neither is it granted on purely moral or sympathetic grounds. The court's discretion to grant or not to grant stay of execution must be exercised judiciously on well established principles. In the case of Nyampala Safaris and 4 Others v Zambia Wildlife Authority and 6 Others4 it was observed that a stay should only be granted where good and convincing reasons have been advanced by a party. The rationale for this is that a successful litigant should not be deprived of the fruits of litigation as a matter of course as well as to preserve the subject of a suit so that if a litigant does succeed on appeal, the award will not be rendered nugatory. 4.4. In addition, I must point out that it is not every ruling or judgment that can be stayed. Only that ruling or judgment capable of being R14 executed can be stayed. In the case of Zambia Revenue Authority v Post Newspapers Limited5 it was held that "Where a judgment or ruling refuses to grant judicial review or an injunction, there is nothing to stay, because such a judgment or ruling does not award a remedy such as money or property which can be obtained by Court execution. In short, a failed judgment or ruling cannot be stayed because it did not award anything. If there nothing to execute about such a judgment or ruling, then there is nothing to stay about it. Only a judgment or ruling which awards a remedy and which can be enforced by the court process, can be stayed." 4.5. The ruling sought to be stayed did not award any remedy capable of being executed. It simply set aside the ruling of the lower court dated 29 th November, 2019 . Th e appellant has conten ded that the respondents have taken steps to execu te the ruling of the lower court. I hold the view that the ruling of the lower court did not grant any remedy capable of being acted upon by the Ministry of ' , RlS Lands officials and besides the Lands and Deeds Registry Act provides for instances when a Certificate of Title can be cancelled. 4.6. Further, taking into consideration the circumstances of this matter and the recent Judgment of the Supreme Court in the case of Zambia Revenue Authority v Post Newspapers Limited, there is nothing to stay about the Ruling of the lower court. In light of the foregoing, I do not find sufficient reasons that would make me exercise my discretion to grant an order for stay of execution. Accordingly, this application is refused and costs to the respondents. Dated this 23rd day of December, 2019. HONOURABLE MRS JUSTICE P. C. M NGULUBE COURT OF APPEAL JUDGE.