Albatross Mining Limited v Zamastone Limited and Ors (2024/HP/1527) [2024] ZMHC 282 (3 December 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil jurisdiction) 2024/HP/1527 BETWEEN: ALBATROSS MINING LIMIT AND r,t.ul~ 1 HY - 2 BOX 5006 AINTIFF ZAMASTONE LIMITED SANOTEX INVESTl\ffiNT LIMITED AGGREGATES LIMITED 1 ST DEFENDANT 2ND DEFENDANT INTERESTED PARTY Before the Hon. Mrs. Justice C. Chinyawa Zulu For the Plaintiff. For the first Defendant: For the second Defendant.- Mr. M Chung a of Messer's K Mwale and company NIA NIA RULING CASES REFERRED TO: 1. Michael Chilufya Sata vs. Chanda Chimballl 86 Others (2011) ZR 519. 2. Sonny Mulenga and Others vs. Investrust Merchant Bank Limited (1999) ZR 101. LEGISLATION REFFERED TO: 1. High Court Rules Chapter 27 of The Laws of Zambia. 1.0 INTRODUCTION 1.1 This is a ruling on an application dated 30th October, 2024 to stay the execution of a Partial Consent Judgment of the High Court under cause number 2022IHP 10559 pending the hearing and determination of the originating court process to set aside the said Partial Consent Judgment. 2.0 BACKGROUND 2.1 The Plaintiff in this matter was sued by the Defendants under cause number 2022/ HP /0559. Later, the parties entered into a Partial Consent Judgment, which the Plaintiff is now trying to have set aside. The Plaintiff has now applied for a stay of execution of the said Partial Consent Judgment pending the hearing of the matter to set aside the said judgment. 2.2 This application was made pursuant to Order 3 rule 2 of the High Court Rules. 3.0 AFFIDAVIT EVIDENCE IN SUPPORT OF THE APPLICATION 3 .1 The Affidavit in support of the application was filed into court on 30th October, 2024 and was deposed by Chuhao Tian who is a director in the Plaintiff Company. 3.2 He deposed that by a memorandum of understanding dated p t December, 2015, the Plaintiff entered into an agreement with the Interested Party, wherein the Plaintiff was granted Rights to mine on a small-scale mining license number 15431-HQ-SML, covering stand numbers L3454/ M , L3455 / M , L3456 / M and L3457 / M . 3.3 A copy of the said memorandum of understanding and the small scale mining license were exhibited and marked as "CT 1- 2" . 3.4 He also deposed that the Plaintiff commenced mining operations and has been in continuous operation since then. 3.5 He further deposed that the 1st and 2nd Defendants being holders of adjacent mining licenses were aware of the Plaintiffs operations on license number 15431-HQ-SML and that despite this awareness, the R2 Defendants between 2020 and 2022, acting in bad faith acquired properties within the Plaintiff's licensed area specifically, stand numbers L3458/M, Lusaka/3152719 and L6216/M. 3.6 He went on to aver that on 20 th May 2022, the 1st and 2nd Defendants initiated Legal proceedings before the High Court under cause number 2022/HP / 0559 alleging trespass by the Plaintiff on these properties . 3. 7 That despite the Plaintiff's lawful operations, the Defendant's directors issued various threats to the Plain tiffs directors exploiting their lack of proficiency in English. 3.8 He also deposed that on 23 rd February 2023 the Plaintiff entered into a Partial Consent Judgment under Cause number 2022/HP /0559 . That its directors being non -native English speakers with limited legal knowledge, the Plaintiff entered into this judgment without full comprehension as the Defendants did not explain the terms adequately. He went on to exhibit a copy of the said Partial Consent Judgment. 3.9 He averred that the Plaintiff has now commenced proceedings to set aside the Partial Consent Judgment of the High Court under cause number 2022/HP / 0559 and that the said proceedings have high prospects of success. 3.10 He also deposed that if the stay of execution is not granted, the court process to set aside the said partial consent judgment of the High Court shall be rendered nugatory and that in any event this application is made in good faith as the Plaintiff company has been making payments on the said Partial Consent Judgment and is only R3 Judgment has high prospects of success which can also be observed by the fact that the Defendants have not filled any defense to the originating process or filed an opposition to the application at hand. 6.4 He went on to submit that if the stay is not granted, the originating court process before this court will be rendered nugatory. In summation, he prayed that the court considers the urgency that has been demonstrated in the affidavit and grant the stay of execution so as to maintain the status quo as the Court deals with the issues in the main matter on their merits and that costs be in the cause. 7 .0 DECISION 7 .1 I have seriously considered the application together with the affidavit evidence and the arguments advanced by the Plaintiff. Order 3 rule 2 of the High Court Rules, pursuant to which this application has been made, states that: "Subject to any particular rules, the Court or a Judge may, in all causes and matters, make any interlocutory order which it or he considers necessary for doingjustice, whether such order has been expressly asked by the person entitled to the benefit of the order or not." 7 .2 The main issue for consideration in this application is whether or not this Court should grant a stay of execution of the Partial Consent Judgment entered into between the Plaintiff and the Defendants under Cause number 2022/ HP / 0559, pending the determination of the application to set aside the said judgment. 7. 3 In determining this application, I am guided by the holding of the Supreme Court in the case of Sonny Paul Mulenga, Vismer Mulenga, Chainama Hotel Limited v Investrust Merchant Bank Limited (1999) ZR 101 (SC) where the Supreme Court stated that: RS ''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. The successful party should be denied immediate enjoyment of a judgment only on good and sufficient grounds.'' 7.4 The Supreme Court, went on to state that:- ''Jn exercising its discretion whether to grant a stay or not, the Court is entitled to preview the prospects of the proposed appeal. " 7. 5 It is clear from the foregoing that an appeal or as is the case at hand, commencing a matter challenging a Consent Judgment, does not automatically entitle an applicant to an order staying the execution of a judgment. The Plaintiff must show that it is necessary or just under the circumstances to deny the Defendants the immediate enjoyment of the judgment rendered in their favour by showing that the application to set aside the Partial Consent Judgment has high prospects of success. 7.6 The Plaintiff has anchored the present application on the proceedings it commenced to set aside the Partial Consent Judgment of the High Court under cause number 2022/HP /0559. I have reviewed the PlaintifPs affidavit evidence supporting its application herein. In this affidavit, the deponent has stated that the Plaintiffs directors being non -native English speaker with limited legal knowledge, made the Plaintiff enter into the Consent Judgment without full comprehension as the defendants did not explain the terms adequately. He went on to exhibit a copy of the said Partial Consent Judgment. R6 7. 7 Without delving into the merits of the substantive application for setting aside the Consent Judgment in issue, I have made observations from the said judgment that in the matter under cause number 2022/HP /0559, the Plaintiff had legal representation. Furthermore, the Consent Judgment was signed on behalf of the Plaintiff, by the said legal representatives namely, Messers Simeza Sangwa & associates and Messers Solly Patel, Hamir & Lawrence legal Practitioners and not the deponent or any other director of the Plaintiff. I a1n, therefore, left wondering how the Plaintiff could have signed the Consent Judgment without full understanding of its contents when it had legal representation. I am aware that this is an issue for consideration at the main hearing of the application to set aside the Partial Consent Judgment. 7. 8 The brief analysis of the evidence currently before me, however, shows that, the Plaintiff has not shown that the application to set aside the Consent Judgment in issue, has high prospects of success. 7. 9 It is a well settled principle of law that a successful litigant is entitled to the immediate enjoyment of the fruits of its judgment. I refer to the holding in the case of Michael Chilufya Sata vs. Chanda Chimba ill ZNBC, MUVI TV Limited MOBI TV International Limited Matibini J ( as he then was) stated that: - "It must also be noticed that in exercising the discretion whether or not to grant a stay, a Court is entitled to preview the prospects of the proposed appeal. The rationale for these stringent conditions, or criteria in exercising the discretion to grant a stay, is that a successful party should not be denied immediate enjoyment of the fruits of the judgment or ruling, unless good and suffident grounds are advanced or shown. 7. IO I am of the view that in the present case, there are no good and sufficient reasons that have been shown by the Plaintiff as to why R7 ' ! the Defendants must be denied immediate enjoyment of the fruits of the Partial Consent Judgment. 7 .11 In view of the foregoing, the application for stay of execution of the Partial Consent Judgment of the High Court under cause number 2022/HP /0559 pending the hearing and determination of the originating court process to set aside the said Partial Consent Judgment is denied. 7 .12 Costs for the application are awarded to the 1st and 2nd Defendants and the Interested Party which costs are to be taxed in default of agreement. Delivered at Lusaka this 3rd day of December, 2024 R8