Elite Industries Limited and 4 Ors v Zambia National Commercial Bank and Anor (APPLICATION NO. SCZ/07/16/2025) [2023] ZMSC 22 (30 July 2023)

THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) uBUC 0 1;. COUltT JUOICIARY APPLICATION NO. SCZ/07 / 16/2025 BETWEEN: 3 0 JUL ELITE INDUSTRIES LIMI PHARMANOVA ZAMBIA LI NERIA'S INVESTMENTS LIMIT D HAMZA ISMAIL DALAL SHAHEED SIDDICK VALi PATEL AND 1ST APPLICANT 2ND APPLICANT 3RD APPLICANT 4TH APPLICANT STH APPLICANT ZAMBIA NATIONAL COMMERCIAL BANK INFINITY GROUP ZAMBIA LIMITED 1 ST RESPONDENT 2ND RESPONDENT BEFORE HON. JUSTICE NIGEL K. MUTUNA ON 30TH JULY, 2025 For the Applicants Mr. M. Lisimba of Messrs Mambwe Siwila Lisimba Advocates. Mr. M. Mukwasa of M. Mukwasa Legal Practitioners Ms. M. Kurnwenda of Ventus Legal Practitioners For the 1st Respondent Mr. R. M. Simeza SC and Mr. Z. Sampa of Messrs Simeza Sangwa Legal Practitioners For the 2 nd Respondent Mrs. N. Simachela and Mr. G. Malipilo of Messrs Nchito and Nchito RULING Cases Referred to: 1) LC and DK Limited (In Receivership) and Angel Poultry Limited v Lovemore Chikuni Chinyama (CAZ/ 08/ 409/ 20201 2) Sonny Paul Mulenga and Others v Investrust Merchant Bank Limited ( 1999) 2 ZR 101. 3) Vangelatos v Vangelatos and 3 Others (SCZjudgementnumber 21 of2013) 4) Zambia Revenue Authority v Post Newspapers Ltd (SCZ judgement number 18 of 2016) Statute referred to: 1) Order 59 Rule 13 (13) of the White book 2) Order 88 Rule 5 (13) of the White book Introduction 1. This is the applicant's motion for an order staying execution of a judgment of the High Court pending the determination of a motion before me for permission to appeal. It follows an ex parte order granted on 12th May, 2025. The motion and response by the respondents 2. The applicants moved this motion by way of summons dated 9 th May, 2025, an affidavit and skeleton arguments. The 1st respondents opposed the motion by way of an affidavit and skeleton arguments while the 2 nd respondent, skeleton arguments. 3. In the evidence in support of the motion, the applicants' witness set out the background to the motion which revealed that there was a mortgage action in the High Court commenced by the 1st - R2 - respondent. The action resulted in a foreclosure order being granted in favour of the 1st respondent. 4. The foreclosure order also granted the applicants a period of 180 days in which to settle the amount owing on the mortgage, failing which, the 1st respondent was at liberty to repossess and sell the mortgaged property. Prior to the expiring of the 180 days, the 1st respondent appointed a receiver who took possession of the mortgaged property, thereby, depriving the applicants' their rights over it during the 180 days period. 5. Later the applicants applied to the High Court for an extension of time within which to redeem the mortgage, an order to remove the receiver and a stay of execution. The High Court granted a IO-month extension in which to redeem the mortgage and a stay of execution. The applicants appealed against part of this ruling. The 1st respondent also cross appealed against the High Court ruling. 6. The 1st respondent took matters further and applied before a single judge of the Court of Appeal for an order to discharge the stay of execution granted by the High Court pending the hearing ~ R3 ~ of the appeal and cross appeal. This order was denied but granted by the full court later and the stay of execution was discharged. 7. The applicants then sought permission of the Court of Appeal to appeal against its ruling which was denied. They then escalated it to me by way of renewal and sought a stay of execution. 8 . The evidence went on to reveal that the parties are actively involved in attempts at an ex-curia settle and it is in the interest of justice that a stay be granted because there is a threat that the 1st respondent will sell the mortgage property. 9. The evidence in opposition led by the 1 st respondent, essentially set out the background to the motion which was as explained by the applicants. It ended by revealing that since 19th March, 2022, when the mortgage application was commenced in the High Court, the applicants have not made a single payment towards the mortgage loan. 10. In the skeleton arguments counsel for the applicants explained the factors which I have to take into consideration in determining whether to grant the stay of execution by reference to the case of LC and DK Limited (In Receivership) and Angel Poultry Limited v Lovemore Chikuni Chinyama 1 and Sonny Paul ~ R4 ~ Mulenga and Others v Investrust Merchant Bank Limited 2 • They argued that I should grant the stay if I find that the applicants will suffer loss which cannot be compensated in damages, where special circumstances do require or where the appeal would be rendered academic if the stay is not granted. 11. Counsel argued further that in exercising my discretion I am at liberty to preview the prospects of success of the proposed appeal. They submitted further that the fact that there is a main and cross appeal before the court of appeal is testament to the fact that there is a serious issue before that court which requires clarification. 12. In the arguments opposmg the motion, counsel for the p t respondent began by attacking the propriety of the motion. I have not summerised this portion of the arguments because I dealt with the jurisdictional issue which the arguments raise 1n my ruling of 12th June, 2025. 13. Addressing the merits of the application, counsel argued that the judgement of the High Court sought to be stayed has already taken effect because a writ of possession has already been issued - RS - and execution concluded by way of repossession of the mortgaged property. There was, according to counsel, nothing to stay. 14. Counsel referred to two decisions of the Supreme Court in the case of Vangelatos v Vangelatos and 3 Others 3 and Zambia Revenue Authority v Post Newspapers Ltd4 . In those two decisions the Supreme Court held that it could not stay a judgment in a case where execution had already taken effect. 15. The next limb of counsel's argument was that although the applicants sought to stay execution of the High Court judgment, they had not appealed against it and they sought the stay pending appeal against the High Court ruling of 1st November, 2023, enlarging the period for redeeming the mortgage by 10 months. According to counsel, a stay of execution is an interim order pending the appeal against the judgment sought to be stayed. Where there is no appeal against such a judgement there can be no order staying it. 16. As for the applicants' contention that if the stay is not granted, they would suffer irreparable loss because there is an imminent threat that the 1st respondent will take possession of the - R6 - mortgaged property, counsel submitted that such threat did not exist because execution had already taken effect. 17. In response to the arguments by counsel for the applicants, counsel for the 2 nd respondent began by highlighting the contradictions in the applicants' motion. She argued that the ex parte summons suggests that the relief sought was a stay of the High Court judgment pending the hearing and determination of the renewed application for permission to appeal to the Court of Appeal against the ruling of 1st April, 2025 . On the other hand, in paragraph 3.6 of the applicants' skeleton argument, the basis of the application is said to be pending the hearing of the appeal and cross appeal awaiting hearing by the Court of Appeal under cause number CAZ/08/632/2023. 18. Counsel submitted further that the applicants have argued that it is the ruling of the Court to Appeal which they would like me to stay. The position taken by counsel was that this confusion alone renders that motion unmeritorious. 19. Counsel argued further that the applicants have not demonstrated any compelling or justifiable reasons warranting the grant of the stay in accordance with the decision of the - R7 - Supreme Cou rt in the case of Sonny Paul Mulenga v Investrust Merchant Bank Limited and order 59 rule 13 (13) of the white book. 20. Counsel concluded by stating the same arguments advanced by counsel for th e 1st respondent that a judgment which is executed cannot be stayed. Determination and decision 21. In my determination of this motion, I have considered the documents laid before me. I must, from the outset state that the applicants' motion is rather murky. As counsel for the 2n d respondent has quite rightly argued, it is not clear upon which application the motion is predicated. On the one hand, the ex parte summons suggests that the stay is predicated on the motion for permission to appeal pending before me, while the opening arguments in the skeleton arguments suggest that it is predicated on the hearing of the main and cross appeal by the Court of Appeal. This confusion in itself renders, as counsel for the 2nd respondent has argued, the motion unmeritorious. - RS - 22. It is important for an applicant for a stay of execution to be clear as to which application the motion is predicated upon because then the Court will be in a position to determine whether, if the stay is not granted, the main application or appeal would be rendered nugatory if successful. Alternatively, whether there are prima f acie merits in the main application or appeal or there are indeed compelling ground for the stay to be granted. 23. The applicants' ill fate is compounded by the evidence and arguments that the judgement sought to be stayed has already been executed. There would, as counsel for the 2 nd respondent have quite rightly argued, be nothing to stay. The applicants have not countered this evidence or arguments and have merely stated, with nothing to prove the contention, that their application for permission to appeal would be rendered nugatory. I, in this light, agree with the arguments advanced by counsel for the two respondents and case law cited that where execution has taken place, no stay can be granted because there is nothing to stay. 24. I would like to conclude by commenting on the fact that the motion before me arises from an order of possession which has ~ R9 ~ unique features. Counsel for the 2nd respondent referred me to Order 59 Rule 13 (13) of the White book, which speaks generally to p rinciples which govern stays of execution. This order, while relevant to money judgements, 1s of little consequence to orders for possession of mortgaged properties. 25. The relevant order which governs suspension of order of possession, which are akin to stays, is Order 88 Rule 5 (13) of the White book. Th e ord er states in part as follows; "The ordinary rule is that a mortgagee is entitled as of right (unless the mortgage deed provides otherwise) to possession of the mortgaged premises and the court has no power to adjourn an application for possession or make a suspended order, with the exception of an adjournment for a short time to afford to the borrower a chance of paying off the mortgage in full... This power may only be exercised if it appears to the court that in the event of its exercising the power the borrower is likely to be able, within a reasonable period, to pay any sums due under the, mortgage or to remedy any other breach of his obligations under the mortgage". ~RIO~ The applicants have not in any way demonstrated their willingness or capacity to settle the mortgage sums in a short time. The contrary would appear to be the position in view of the evidence by the witness for the 1s t respondent regarding the last time the applicants serviced the mortgage. 26. This provision of the White book seals the applicants' fate that there are not entitled to the relief sought. Conclusion 27. I accordingly, dismiss the motion and discharge the exparte stay granted earlier. The costs will be the respondents, to be taxed in default of agreement. Dated at Lusaka this 30th day of J uly, 2025 ..... ,::' ..... . una - Rll -