Finance Bank v Kalambata (SCZ 8 257 of 2011) [2012] ZMSC 27 (4 April 2012)

IN THE SUPREME COURT OF ZAMBIA SCZ /8/257/2011 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: FINANCE BANK (Z) LIMITED APPELLANT AND FRANK JAMES KALAMBATA RESPONDENT Before Hon. Mrs. Justice E. N. C Muyovwe on the 5th April, For the Applicant: Mr. M. Chiteba, Messrs Mulenga Mundashi and Company For the Respondent: Mr. S. Mambwe, Messrs Mambwe Siwila and Partners ________________________________________________________________ R U L I N G Cases referred to: 1. Wilson vs. Church (No. 2) 12 Ch. D. 454 This is an application for a stay of my Ruling delivered on the 16th March, 2012 in which I dismissed the Appellant’s appeal for R1 want of prosecution. The application is made pursuant to Order 29 of the Supreme Court Rules. The gist of Mr. Chiteba’s affidavit filed in support of this application is that the Appellant intends to appeal against the Ruling to the full Court. That if the Ruling is not stayed, the appeal to the full Court will be reduced to an academic exercise and the Respondent may execute. The Respondent did not file any affidavit in Opposition but made submissions at the hearing of the application. Mr. Chiteba filed skeleton arguments which he augmented with oral submissions. Mr. Chiteba referred to Section 4 (b) of the Supreme Court Act, Rule 47 and Rule 48(4) of the Supreme Court Rules. He also cited the case of Wilson vs. Church (No.2) 12 Ch. D.454¹ where at Page 459 the Court stated: “….it has also been said that when a party is appealing, exercising his undoubted right of appeal, the Court ought to see that the appeal, if successful is not nugatory.” In his oral submissions, Mr. Chiteba submitted that the Appellant attempted to file the Notice of Motion but that they R2 were not allowed to do so as this application was coming up for hearing. In a nutshell, he submitted that the Appellant fears that if they do not apply for a stay, the appeal to the full Court will be rendered nugatory and that the Respondent may proceed to assessment in the Industrial Relations Court and then proceed to execute the judgment. That if the Respondent proceeds to execute, the Appellant may not recover the losses that would result, which losses would be unquantifiable. Mr. Chiteba argued that the Appellant believes that the appeal to the full Court has prospects of success and prayed that the application be granted in the interest of justice. Mr. Mambwe, Counsel for the Respondent submitted that ordinarily he would not object to the application. However, he noted that although this was an application for a stay pending appeal, no appeal or Notice of Motion had been filed. That there is, therefore, no basis upon which a stay can be granted. That the application is premature or simply irregular. He urged this Court to refuse this application on the ground that it is improperly before Court. R3 In reply, Mr. Chiteba referred to Rule 48(4) which he contended does not make it mandatory for an appeal to be filed. He submitted that the Rule does not make it a requirement that a Notice of Appeal be filed. He emphasized that this Court has the discretion to grant the application for a stay pending appeal to the full Court adding that the Notice of Motion is ready for filing. Mr. Chiteba submitted that this application was filed first because of the urgency of the matter. He urged this Court to exercise discretion in favour of the Appellant. I have considered the affidavit evidence as well as the submissions by learned Counsel for the parties. This application is brought pursuant to Order 29 of the Supreme Court Rules which reads: Subject to the provisions of Section 18 of the Act, no appeal shall operate as a stay of execution, but the High Court or the Court may stay execution on any judgment, pending appeal on such terms as to security for the payment of any money or the performance or non- performance of any act or the suffering of any punishment ordered by or in such judgment, as to such Court may seem reasonable.” I must say that Counsel for the Appellant has misapprehended and misapplied Order 29. This Order does not R4 apply to the present situation where as a Single Judge I dismissed the Appeal for want of prosecution and now the Appellant who is aggrieved by my decision is desirous that the full Court considers the matter. Mr. Chiteba did indicate that he attempted to file the Notice of Motion a day before the hearing of this application. Indeed, in accordance with the Rules, an aggrieved party must apply to the full Court by way of Notice of Motion. Therefore, the Appellant cannot apply for a stay of my Ruling pending appeal to the full Bench. In any case, the full Court will not hear an appeal but a Notice of Motion. In the circumstances, the question of staying my decision does not arise and I do not believe that I have such powers under the Rules of Court. The Appellant’s application is therefore misconceived and, therefore, lacks merit and it is dismissed with costs to the Respondent to be taxed in default of agreement. Delivered in Chambers on this 5th day of April, 2012 R5 E. N. C. MUYOVWE SUPREME COURT JUDGE R6 R7