David Sendwe and Ors v First Quantum Mining and Operations Limited (CAZ/08/536/2022) [2022] ZMCA 154 (23 December 2022)

IN THE COURT OF APPEAL FOR ZAMBIA AT THE LUSAKA DISTRICT REGISTRY HOLDEN AT LUSAKA ( Civil Jurisdiction) BETWEEN: CAZ/08/536/2022 DAVID SENDWE PLUS 10 OTHE plicants AND FIRST QUANTUM MINING AND OPERATIONS LIMITED Respondent Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 29th December 2022 For the Appellants: For the Respondent: No appearance No appearance Ruling Legislation referred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 of 201 6 This is a ruling on an ex-parte summons brought by the applicants for an order to stay execution of ruling of 22 November 2022 pending hearing and determination of an appeal. The application has be made pursuant to Order VII Rule 1 and 2 of the Court of Appeal Rules, SI No. 65 of 2016. Rl The application is supported by an affidavit of 22 December 2 022 sworn by one David Sendwe, the 1st applicant in the matter. He contends that an action was commenced in the High Court Industrial Relations Division by way of a Complaint, subsequent to which a judgment of 2 November 2022 was delivered in their favour. That on 8 November 2022, a writ of fieri facias was executed against the respondent's goods after which the respondent applied to have the said writ set aside for irregularity. On 22 November 2022, the High Court delivered a ruling granting the respondent's application to set aside the writ of fieri facias and ordering that the applicants pay the Sheriffs fees incurred by the respondent. Being dissatisfied with the said ruling of the High Court Judge , the applicants filed a Notice of Appeal and Memorandum of Appeal. Having appealed against the said ruling, the applicants thus bring this application for an order staying the execution. The applicants further contended that the respondent is desirous to enforce the lower Court's order by way of levying execution which said execution will cause irreparable damage on the applicants. Further, if execution is not stayed, then the succe ss of the said appeal will be rendered nugatory and academic. The further contention is that the applicants' appeal has strong prospects of success and that this Court has the discretion to grant a stay of execution pending determination of the matter. Finally, the applicants contend that the respondent shall not be prejudiced in any way by the stay of execution. R2 I have carefully considered the application before me together with the affidavit evidence and submissions on record. Although the application has been brought pursuant to Order VII Rule 1 and 2 of the Court of Appeal Rules, these are general provisions on how interlocutory applications should be brought to this Court. The more relevant provisions for an order for stay of execution of a judgment are Order X Rule 5 and Order XIII Rule 12 of the Court of Appeal Rules which provide as follows: '5. 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". '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'. The import of the foregoing provisions is that an appeal does not operate as a stay of execution and thus an applicant desirous of obtaining must bring a separate application to the Court. Such application shall be made to the High Court in the first instance. R3 • r A consideration of paragraph 5 of the affidavit in support of the application reads in part as follows : " ... the applicants have now appealed against the said ruling of the Honourable High Court Judge and did cause to be made an application for an order staying execution of the said Ruling ... " A critical examination of the said paragraph shows that the applicants are only referring to the ex-parte application made before the appeal Court in casu. The record does not show any evidence that a similar application was first made before the Court of first instance, which in this case is the High Court Industrial Relations Division before which the Ruling appealed against was rendered. The provisions of Order XIII Rule 12 of CAR are instructive. The applicants have however not demonstrated that they have complied with the Rules of the Court and in the first instance made an application for a stay of execution before the lower Court before b eing renewed in this Court. In view of the foregoing, I am of the considered view that the application before is irregular, and I dismiss it accordingly. Dated at Lusaka this 29 December 2022. ~ · t~ N. A. Sharpe-Phiri COURT OF APPEAL JUDGE R4