Dominic Twinjika v Barbara Hantoongo Moyo Twinjika (CAZ/08/238/2025) [2025] ZMCA 80 (24 June 2025)

• IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/238/2025 HOLDEN AT LUSAKA {Ci vi I J u r is d i ct i o n) DOMINIC TWINJIKA AND 2 4 JUN 2025 • L. C ~ 1L EG , •• , - PETITIONER BARBARA HATOONGO MOYO TWINJIKA RESPONDENT Before the Hon. Lady Justice Abha Patel, S. C. in Chambers On 18th & 24th June 2025 For the Appellant: Mr. N. Botha & Mr. M. Chongola Messrs. Makebi Zulu Advocates For the Respondent: Mr. W. Kayope & Mr. S. T. Banda Messrs. Simeza Sangwa & Associates RULING Rules Referred to: 1. Court of Appeal Rules Statutory Instrument No. 65 of 2016 . 2. The Rules of The Supreme Court of England {White book) 1999 Ed ition I Cases Referred to: 1. Savenda Management Services limited v Stanbic Bank Zambia Limited and Gregory Chifire- SCZ Selected Judgment No. 47 of 2018 2. Nyampala Safaris & 4 others v Zambia Wildlife Authority & 6 others (2004} Z. R, 49 3. Sonny Paul Mulenga & others v lnvestrust Merchant Bank Limited (1999} ZR, 101 SC 4 . Zambia Revenue Authority v The Post Newspaper Limited - SCZ Appeal No. 18 of 2016 5. Carmine and Watson Nkandu Bawa (suing as Administrator of the Estate of the late Ruth Bawa) v. Fred Mubiana and ZESCO Limited (2012} ZR 165 4. 6. Chisha v Internationa l Gaming Africa {T/A Lusa ka Royale Casino) - CAZ/8/273/2017 7. Vasi Miti v The Attorney General (2018) ZMSC 556 1.0 Introduction 1.1 This is the application brought by the one Dominic Twinjika citing himself as the 'Petitioner' on 19th May 2025 by way of ex parte Summons for an Order for stay of execution of the Combined Ruling of the lower Court, dated 20th March 2025 pending hearing and determination of the application for leave to appeal to the Court of Appeal against the said Ruling. The said application was made pursuant to Order X rule 5 of the Court of Appeal R2 I Page - --------------- - • • Rules {CAR), 2016 as read with Order 45 Rule 11 of the Rules of the Supreme Court of England 1999 (Whitebook) and the inherent jurisdiction of the Court. (Hereinafter referred to as the Application for Stay). 1.1 The Application for Stay was filed together with a list of authorities and skeleton arguments and an affidavit in support sworn by the Petitioner of even date. 1.2 The Ex Porte Order of Stay was granted on 20th May 2025 and endorsed with a return date of 3rd June 2025, for the inter partes hearing. 1.3 On the return date, Counsel Botha applied for an adjournment and leave to allow it to file a Reply to the opposing process filed on 30th May 2025, which adjournment was granted with leave to file its Reply by or before 5th June 2025. 1.4 Parties having complied with the directions, the application was heard on 18th June 2025, and this is the Reserved Ruling of the Court. 2.0 The Petitioner's Application for Stay of Execution • 2.1 In its skeleton arguments, the Petitioner has placed reliance on Order X rule 5 of CAR1 as read with Order 45 rule 11 of the Rules of the Supreme Court of England 2 and invited the Court in the exercise of its discretion, to grant an order of stay of execution . The Petitioner placed reliance on the case of Savenda Management Services limited v Stanbic Bank Zambia Limited and Gregory Chifire 1 in support of the concept of inherent jurisdiction of the Court. R3 I Page • • 2.2 Counsel has also called in aid the decision in the case of Nyampala Safaris • (Zambi) Limited and Others v Zambia Wildlife Authority and Others2 to advance the argument that there was need to show irreparable injury that the Party would suffer without a stay being granted . 2.3 Emphasis was also placed on the danger of the appeal being rendered academic, unless the subject matter is preserved by an Order of Stay of execution. Reliance was placed on the decision in the case of Sonny Paul Mulenga v lnvestrust Merchant Bank and others3 in which case the Apex Court expressed the undesirability of determining appeals where the orders sought would serve no purpose for being academic. 2.4 The Petitioner also filed its Affidavit and list of arguments in reply dated 5t h June 2025 which have been fully interrogated by the Court. 3.0 The Respondents' Opposition 3.1 The Respondent filed its affidavit and skeleton arguments in opposition on 30th May 2025. The opposing affidavit is sworn by the Respondent. She deposed to facts surround ing the Judgment of the Court delivered on 22nd March 2022. 3.2 The deponent also averred that on 25th March 2025, the lower Court delivered its Combined Ruling, the effect of which was the property, the subject of the dispute, be transferred into her name. Paragraph 8 refers . R4 I Page • • 3.3 It was also averred that the Petitioner's application of 24th March 2025 for a stay of execution of the Combined Ruling was dismissed by the Ruling of the lower Court dated 14th May 2025. Paragraph 10 refers. 3.4 In its skeleton arguments, Counsel has opposed the Petitioner's Application for a stay of execution and has implored that the Court does discharge the ex parte Order of Stay and dismiss the application for stay. 3 .5 It is strongly argued that the requirements for the grant of stay of execution have not been satisfied by the Petitioner and reliance was placed on Halsbury's Laws of England as well as settled case law in the jurisdiction to canvass the argument that the Court's discretion must be exercise judiciously, and on well-established principles. Reliance was placed on the case of Zambia Revenue Authority v The Post Newspaper Limited 4 . 3.6 The Respondent also urged the Court to note that there were no prospects of success and relied on the case of Bowa v Mubiana & ZESC05 . 4.0 The hearing 4.1 At the hearing, Counsel placed reliance on the process fi led into Court and chose to augment briefly. 4.2 It was the Respondent' s submission that an Order of Stay must be anchored on something. The thrust of Counsel' s argument was that the Applicant had not yet been granted leave to appeal and invited the Court to look into the proposed grounds of appeal, to arrive at the finding that they ra ise new issues and which were not raised in the lower Court. RS I Page • 4.3 In reply, Counsel Botha placed reliance on the affidavit in reply and the arguments both filed on 5th June 2025. It was further his submission that the issue of leave to appeal is one which is pending a Ruling from the lower Court and canvassed the position that the stay was based on something that is existent before the lower Court. He in turn, prayed that the ex parte Order be confirmed. 5.0 The decision of the Court 5.1 I have taken time to consider the documents filed by the Parties, heard their submissions and reflected on the cited authorities. 5.2 It is trite that this Court is vested with discretionary power to grant a stay of execution of judgment as per Order 10 rule 5, of the Court of Appeal Rules No. 7 of 20161 . However, for such discretion to be exercised, the appellant must advance cogent and sufficient reasons on which the stay can be granted. 5.3 The issue for determination is whether the applicant in this application has met the threshold to warrant th is Court to exercise its jurisdiction and grant the stay of execution as prayed. 5.4 The Court is alive with the well settled principles which must be cons idered when an application for a stay of execution of judgment is made, one of which is whether the appeal has prospects of success. The cited case of Sonny Paul Mulenga v. lnvestrust Merchant Bank provides clear guidance on when a stay of execution of judgment can be granted. Further guidance R6 I Page • can be gleaned from the cited case of Watson Nkandu Bowa (su ing as Administrator of the Estate of the late Ruth Sowa) v. Fred Mubiana 5 where the Supreme Court held that:- ''/t is settled law that in 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. 11 5.5 Additionally, in the case of Zambia Revenue Authority v. Post News Papers Limited the Supreme Court observed that: ••• where a Judgment or Ruling is stayable, the principles state that stay of execution pending appeal, is a discretionary remedy. A party is not entitled to it as of right and such discretion must be exercised judiciously and on well-established principles. FirstlYt the successful party should not be denied the immediate enjoyment of a Judgment, unless there are good and sufficient grounds. Stay of Execution should not be granted for the mere convenience of the Post. Neither should it be granted purely on sympathetic or moral considerations. SecondlYt in exercising its discretion, whether to grant a Stay or not, the Court is entitled to preview the prospects of success of the proposed appeal. In particular, where the Judgment appealed against involves payment of money, the Appellant must show that if such money is paid then there will be no reasonable prospects of recovery in the event of the appeal succeeding. Such proof is what amounts to good and sufficient grounds warranting a stay of execution .......... we wish to emphasize R7 I Page l • that the prospects of success of the pending appeal, is a key consideration, in deciding whether or not to stay execution of the Judgment appealed against.'' (emphasis by the Court). 5.6 It is fundamental that the Petitioner' s renewed application for stay of execution must be considered in light of the settled jurisprudence available in the jurisdiction. It is trite, and the law is settled that the mere fact of an appeal does not automatically warrant a stay of execution of the judgment. More so, that in casu, the application for leave to appeal has not yet been determined. 5.7 There ought to be something more to its case than the mere fact of an intended appeal. This principle has echoed through the Courts and affirmed by the Apex Court in the cited case of Sonny Paul Mulenga & Others v lnvestrust Merchant Bank Limited where the Supreme Court has guided that: ''an appeal does not automatically operate as a stay of execution and that it is pointless to ask for a stay solely because an appeal has been entered. More is required to be advanced to persuade the court that it is desirable, necessary and just to stay a Judgment pending appeal . • A successful party should only be denied the immediate enjoyment of a Judgment on good and sufficient grounds''. 5.8 Order 59 rule 13 (2) of the Rules of the Supreme Court2 is instructive on the circumstances in which a Court should exe rcise its discretion to grant a stay. The Court must be satisfied that there are satisfactory reasons before depriving a successful litigant of the fruits of its judgment. This was clearly R8 I Page • established and settled by the Apex Court in the case of Nyampala Safaris Zambia Limited & Others v Zambia Wildlife Authority and Others. 5.9 In considering whether to grant a stay, or not, the Court is faced with consideration of whether the applicant has demonstrated good and compelling reasons to justify the grant of a stay of execution . The principle enshrined by the cited case of Sonny Paul Mulenga, was re-affirmed by this Court, in the case of Chisha v International Gaming Africa (T / A Lusaka Royale Casino)6 when the Court stated as follows: ''The question whether or not to grant a stay, the court is entirely in the discretion of the court. The power should be exercised judiciously to ensure justice and fairness to both parties. In making the decision whether to grant a stay, the court is entitled to preview the grounds advanced for the appeal in order to determine whether the appeal has prospects of success. 1 1 5.10 I am al ive to the fact the Apex Court in the case of Bawa v Mubiana & ZESCO, cited by the Respondent, has settled the criteria to be considered before the grant of stay of execution pending appeal which have been stated above. 5.11 I have combed the Petitioner' s Affidavit in support and do not find any compelling or special circumstances necessitating the grant of an Order of Stay pending appeal. Paragraphs 13 and 14 simply echo that the proposed grounds of appeal have good prospects of success. I will not speak to the proposed grounds of appeal as the application for leave to appeal is not yet before the Court. However, the Petitioner has not revealed any sufficient R9 I Page • grounds or special circumstances to warrant the grant of a Stay. In the case of Vasi Miti v The Attorney General 7 , the Supreme Court stated as follows : ''We adopt with approval, the principle enunciated in Winchester Cigarette Machinery Limited that an applicant for a stay can be granted the order only if he/she shows that there are special circumstances which takes the case out of the ordinary. '' 5.12 I see no strong or compelling reasons on which to confirm the Order of Stay Stay for the above reasons as well as the fact that the Petitioner has not demonstrated any irreparable harm that he is likely to face. Mere assertions and emphasis on principles espoused by well settled cases, does not automatically make them applicable to the facts in casu. 5.13 For the reasons above, I am of the considered view that the Petitioner's application for a renewed Order staying execution, is devoid of merit and I dismiss it and discharge the ex parte Order of Stay accordingly. 5.14 Costs shall be for the Respondent. Dated the 24th day of June 2025. . . . . . . . . . . . . . . . . . . . . . . . . . ..... . ... . ...... l .............. .. I • I • • • Hon. Mrs. Justice Abha N. Patel S. C. COURT OF APPEAL JUDGE • Rl O I Page