Arm Secure Limited v Astro Holdings Limited and Ors (2021/HPC/0200) [2023] ZMHC 73 (7 September 2023)

IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) .. }4 2021/HPC/0200 BETWEEN: ARM SECURE LIMITED AND -,,{'-' "'' ASTRO HOLDINGS LIMITED FURNITURE HOLDINGS LIMITED ADDIT TOURS AND TRAVEL LIMITED .~e,, s ,?-"' , c.<t-c 'It-... ~"' PLAINTIFF 151 DEFENDANT 2ND DEFENDANT 3RD DEFENDANT Before Hon. Lady Justice Irene Zeko Mbewe For the Plaintiff: Ms. D. Nalishiwa & Mr. I. Mungomba, Messrs Musa Oudhia & Company For the Defendants: Mr. C. M. Sianondo, Messrs Malambo & Company Cases referred to: RULING 1. Sonny Paul Mulenga and Other v lnvestrust Bank Limited (1991) ZR 101 2. John Kunda (Suing as country director of an on behalf of the Adventist Development & Aging (ADRA) v Karen Motors (Z) Ltd (2011) 1 ZR 451 3. Nyampala Safaris & Others v Zambia Wildlife Authority & 6 Others (2004) Z. R. 49 4. Monk v Bartram (188 1) 1 Q 346 5. Wilson v Church (No. 2) (1879) 12Ch. D 454 6. Tanfern v Cameron-MacDonald {2001] 1 WLR 1311 CA 7. Swain v Hillman {2001] 1 ALLER 91 (CA) 8. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 Legislation referred to: 1. High Court Rules, Chapter 27 of the Laws of Zambia Rl I Page 2. Rules of the Supreme Court of England, 1999 Edition Introduction By this application, the Defendants' seek an order to stay execution of Judgment dated 1 fh July, 2023 pending appeal. The application is brought pursuant to Order 59 rule 3 of the Rules of the Supreme Court 1999 Edition as read with Order 10 rule 5 of the Court of Appeal Rules. Defendants' case The application is supported by an affidavit deposed to by Nikita Sanmukuh Patel the director for the Defendants. The averments reveal that the Defendants lodged an appeal against the Judgment of this Court and now seek a stay of execution pending the hearing of the appeal. The appeal has real prospects of success as it raises legal issues and if a stay is not granted the appeal will be rendered nugatory as the Plaintiff has no ability to pay back the money. Plaintiff's case The affidavit in opposition is sworn by Dirk Jacobus Kotze the managing director of the Plaintiff company. In it, it is deposed that on 11 th July 2023 the Court delivered Judgment in favour of the Plaintiff in which it inter alia, awarded the Plaintiff ZMW8,455, 157.80 for security services provided to the 1st Defendant. Dissatisfied with the Judgment, the Defendants launched an appeal and now seek to stay execution of Judgment pending appeal. According to the deponent, the grounds of appeal show the appeal has no prospects of succeeding as the Court relied on unrefuted evidence that the 1st Defendant admitted its indebtedness to the Plaintiff in the sum of R2 I P age ZMW10,439,690. Further, the deponent is advised by Counsel that the law on limitation of actions is clear and the Court determined the Defendant's counterclaim in accordance with the guiding law. It would be an injustice to deny the Plaintiff its right to enjoy the fruits of its Judgment. Therefore, this is not a proper case to grant a stay of execution pending appeal. Defendants' reply In the affidavit in reply, it was deposed that the Court did not consider some of the amounts paid to the Plaintiff including those as a result of thefts by the Plaintiff's employees and implementation of a statute. Further, the Defendants are of the view that nothing is owed to the Plaintiff and the Plaintiff would not be prejudiced by the granting of the stay of execution. Consideration and decision I have considered the application for a stay of execution and grounds advanced thereof, and the affidavits and skeleton arguments filed herein together with list of authorities cited by the respective Counsel. The brief background of the application is that the Plaintiff commenced an action against the Defendants and Judgment was entered in its favour on 11th July, 2023. Dissatisfied with the Judgment of this Court, the Defendants lodged their appeal in the Court of Appeal on 18th July, 2023 and now seek an order to stay execution of the Judgment pending determination of the appeal. The application is anchored on Order 59 rule 13 (1) (a) of the Rules of the Supreme Court 1999 Edition, which provides that: "1) Except so far as the Court below or the Court of Appeal or a single judge may otherwise direct- R3 I Page (a)an appeal shall not operate as a stay of execution or of proceedings under the decision of the Court below;" The Defendants further relied on Order 10 rule 5 Court of Appeal Rules which provides that: "An appeal shall not operate as a stay of execution or of proceedings under the judgment appealed against unless the High Court, quasi judicial body or the Court so orders and no intermediate act or proceeding shall be invalidated, except so far as the Court may direct." The foregoing provisions of the law stipulate that an appeal does not operate as a stay of execution hence the current application. The Court when deciding on an application for a stay must balance the interests of the parties herein. The principles guiding the grant of a stay of execution pending appeal are well settled. It is trite law that a stay of execution is granted on good and convincing reasons. This means a party applying for a stay of execution, ought to demonstrate to the satisfaction of the Court that there are special circumstances to warrant an order of stay of execution. The discretionary power to grant a stay of execution is judiciously exercised so as to not deprive the successful party immediate enjoyment of the fruits of his judgment as elucidated by the Supreme Court in the case of Sonny Paul Mulenga & Others v Investment Merchant Bank (1l. In John Kunda (Suing as country director of and on behalf of the Adventist Development & Aging (ADRA) v Keren Motors (2) Ltd (2l, the Supreme Court stated the following: R4 I Page "The argument in ground three flies in the teeth of our decision in Sonny Mulenga & Others v lnvestrust Merchant Bank Limited, where we reiterated the necessity of a successful party in litigation to enjoy the fruits of the judgment. To say there is no prejudice when the successful party holds on to an unexecuted judgment, is a statement made without conviction." Further, in the case of Nyampala Safaris & 4 Others v Zambia Wildlife Authority & Others (3l, the Supreme Court held that: "A stay of execution is granted on good and convincing reasons. The application must therefore clearly demonstrate the basis on which a stay should be granted." In Monk v Bartram (4l, it was held that where an applicant has shown special circumstances exist on which to grant a stay, a Court should grant it. In the English cases of Wilson v Church(5l, Cotton LJ stated that when a party is exercising his undoubted right to appeal, the Court ought to see to it that the appeal, if successful, is not rendered nugatory. On the weight of the cited authorities, the applicant must clearly demonstrate the basis on which a stay should be granted. I have to determine whether the Defendants have furnished sufficient reasons to persuade this Court to exercise its discretion in favour of granting the order of stay of execution sought. The Defendants submit the appeal will be rendered nugatory if a stay is not granted as it believes it does not owe any money to the Plaintiff, and if the Plaintiff is paid, it may not recover the money. This assertion has not been substantiated. RS I Page A key factor is whether the appeal has prospects of success. As stated in the case of Tanfern v Cameron-MacDonald < > which followed Swain v Hillman (7), which authorities are of a persuasive nature, the Court in discussing the prospect of success held there must be a realistic as opposed to fanciful prospect of success. A perusal of the memorandum of appeal reveals the Defendants' appeal is premised on findings of fact made by this Court. In this regard, it is settled law that for an Appellate Court to reverse findings of fact, it would have to be satisfied the said findings were perverse or made in the absence of relevant evidence or upon a misapprehension of the facts or they were findings which no trial Court acting correctly ought to have reasonably made. My finding is supported by the case of Wilson Masauso Zulu v Avondale Housing Project Limited cai, where the Supreme Court held that: "Before this Court can reverse findings of fact made by a trial judge, we would have to be satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper review of the evidence, no trial Court acting correctly could reasonably make." For the foregoing reasons, I am of the considered view the Defendants' appeal has no real prospects of succeeding as such there are no convincing reasons to grant the stay of execution. Consequently, the application for an order for stay of execution pending appeal is dismissed for lack of merit. Costs follow the event, and to be taxed in default of agreement. R6 I P c1 g e R7 I Page