Lake Petroleum Limited v Medah Consultancy Limited (Appeal No. 240/2025) [2025] ZMCA 141 (1 December 2025)

AND MEDAH CONSULTANCY LIMITED RESPONDENT Before the Honour able Mada m Justice Y. Chembe in Chamber s. For the Applicant Mr D. S. Libati of Messrs D. S Libati For the R espondent Mr M. Benwa of Mes s rs Mike Benwa Legal Practitioners . RULING Cases Referred to: 1. Watson Nkandu Bowa (suing as Administrator of the Estate of the Late Ruth 0.) v. Fred Mubiana and ZESCO Limited (2012) Z. R 165 2. Daily Nation Newspaper and Richard Sakala v African Brothers Corporation Limited CAZ/08/224/2019 3. Sonny Paul Mulenga and Others v Investrust Merchant Bank Limited (1999) Z. R 101 4. Nyampala Safaris and Four Others v Zambia Wildlife Authority and Six Others SCZ No. 6 of 2004 5. Anuj Kumar Rathi Krishna v The People SCZ Judgment No.9 of 2011 6. Luanshya Copper Mines v First Rand Ireland and Other Creditors of Luanshya Copper Mines PLC and 2 Others SCZ Judgment N o.168 of 2009 Legislation Referred to: 1. The Court of Appeal Rule s, SI No. 65 of 2016 INTRODUCTION 1. This is a renewed application for an order for stay of execution of the judgment of the High Court judgment dated 24th June 2025, pending the determination of the appeal before this Court. The application is anchored on Order 10 Rule 5 of the Court of Appeal Rules. BACKGROUND 2. On 24th June 2025, the High Court entered judgment a gainst the applicant in the sum of USD 100,000.00 together with interest. Aggrieved by that decision, the applicant appea led and, on 3 rd July 2025, sought a stay of execution before the R2 High Court. That application was dismissed by a ruling delivered on 9 th July 2025, thereby prompting the present renewed motion before this Court. AFFIDAVIT IN SUPPORT OF APPLICATION 3. In the supporting affidavit sworn on 10th November 2025 by Cheya Katele, the Legal Compliance Manager of the applicant, it is averred that the ruling dismissing the earlier application for stay was not promptly served on the applicant's advocates. Consequent to that delay, the respondents issued a demand for the judgment sum of USD 100,000.00 and USD 30,914.00, together with costs. The Respondent also threatened to proceed with execution by 10th November 2025. 4. The deponent further avers that these sums form the very subject of the pending appeal, as the applicant disputes both the principal amount and the interest awarded. She further states that the grounds of appeal disclose high prospects of success, and that unless a stay is granted, execution will render the appeal a mere academic exercise. That, in the interests of justice, this Court should grant the stay pending the determination of the appeal R3 SKELETON ARGUMENTS IN SUPPORT OF APPLICATION 5. In the skeleton arguments filed with the application, learned counsel for the applicant contends that the appeal has high prospects of success and that, in the absence of the order of stay sought of execution, any favourable outcome on appeal would render it an academic exercise. Counsel submits that the respondents have already taken steps toward execution and that the applicant will suffer irreparable harm if the respondent proceeds to execute the judgment. 6 . To buttress the argument, reliance is placed on the decision in Watson Nkandu Bowa (suing as Administrator of the Estate of the Late Ruth 0.) v Fred Mubiana and ZESCO Limited 1 , wherein the Supreme Court affirmed that, in applications for stay, the Court must consider both the prospects of success on appeal and the risk of irreparable damage should a stay be denied and the appeal succeeds. 7. Counsel further urged this Court to be guided by the reasoning in Daily Nation Newspaper and Richard Sakala v African Brothers Corporation Limited2 , in which Ngulube JA held that where the appeal is against a money judgment, R4 there is sufficient reason to grant an order staying execution of judgment. 8. Based on these authorities and the circumstances of the case, counsel prays that this Court exercises its discretion in favour of granting a stay of execution of the judgment delivered on 24th June 2025 pending the final determination of the appeal. AFFIDAVIT IN OPPOSITION 9. The respondent opposes the application through an affidavit sworn on 12th November 2025 by Sairam Boyina, a director of the respondent company. He avers that the application _is devoid of merit and that the High Court correctly awarded the judgment sum of USD 100,000 plus interest. It is further deposed that the intended appeal has no reasonable prospects of success. 10. The deponent further avers that the applicant's assertion of irreparable harm is unsubstantiated, as the applicant has failed to show that the respondent is insolvent or otherwise incapable of refunding the judgment sum should the appeal succeed. On the contrary, the respondent asserts that it RS possesses the financial capacity to satisfy any order for repayment that an appellate court may issue. 11. On the issue of service of the ruling, the deponent maintains that the applicant's allegations are misleading. He states that the applicant's advocates were duly notified and served with the ruling, which has, in fact, been exhibited as "CKl" by the applicant itself. He concludes that the application is without merit and ought to be dismissed. SKELETON ARGUMENTS IN OPPOSITION 12. In the skeleton arguments, counsel for the respondent relies on Sonny Paul Mulenga & Others v Chainama Hotels Ltd & Others3 , Watson Nkandu Bowa 1 , and Nyampala Safaris & 4 Others v Zambia Wildlife Authority & 6 Others4 in support of the submission that the considerations for granting a stay are: prospects of the appeal succeeding and the irreparable damage if a stay is not granted and the appeal succeeds. It is argued that the applicant has failed to satisfy either of these requirements. 13. The grounds of appeal, it is argued, disclose no prospects of success, and the applicant has failed to demonstrate any irreparable harm that will arise from payment of a sum it has R6 withheld for over five years. Further, the applicant has not shown that the respondent would be unable to refund the money should the appeal succeed. 14. Counsel accordingly urges the Court to dismiss the application. AFFIDAVIT IN REPLY 15. In the affidavit in reply sworn by Chela, it is averred that the applicant proceeded on appeal because the High Court erred in law and fact when it entered judgment for USD 100,000 despite expressly finding that the plaintiff had failed to prove, on a balance of probabilities, that the applicant executed the agreement forming the basis of the claim. It is deposed that the award was unsupported by the evidence on record, thereby giving rise to serious and arguable grounds of appeal. 16. The deponent maintains that the respondent will suffer no prejudice should a stay be granted, as it is a solvent entity capable of being compensated in the event the appeal fails. He further asserts that certain conduct on the part of the respondent's advocates has heightened the applicant's apprehension that in the absence of a stay, it risks irreparable harm. R7 SKELETON ARGUMENTS IN REPLY 17. The skeleton arguments in reply merely reiterate the substance of the applicant's primary submissions and require no further restatement. ANALYSIS AND DETERMINATION 18. I have carefully considered the record of motion, the affidavits sworn on behalf of the parties, and the skeleton arguments filed in support and in opposition. The application is brought pursuant to Order 10 Rule 5 of the Court of Appeal Rules, under which this Court may, in the exercise of its discretion, grant a stay of execution pending the determination of an appeal. 19. The applicant seeks to stay the execution of the High Court judgment delivered on 24th June 2025 on two principal grounds: (i) that the intended appeal has high prospects of success; and (ii) that failure to stay execution will result in irreparable harm should the appeal ultimately succeed. 20. The starting point is the established test for a stay of execution. As reaffirmed in Watson Nkandu Bowa (suing as R8 Administrator of the Estate of the Late Ruth 0.) v Fred Mubiana and ZESCO Limited 1, the applicant must demonstrate both (a) reasonable prospects of success on appeal and (b) the likelihood of irreparable damage if the stay is not granted and the appeal later succeeds. 21. I am further guided by Sonny Paul Mulenga & Others v Investrust Merchant Bank Ltd3 , where it was emphasised that an appeal does not ipso facto operate as a stay of execution. A stay is not granted as a matter of course merely because a notice of appeal has been lodged; the Court must be persuaded by good and sufficient grounds that it is desirable and just to suspend the ordinary execution process. The successful litigant is entitled to enjoy the fruits of its judgment unless compelling reasons are shown to the contrary. 22. In evaluating the prospects of success, I am mindful of the caution expressed by the Supreme Court in Anuj Kumar Rathi Krishna v The People, that this Court must not descend into the merits or pre-judge the appeal. My task is limited to a preliminary assessment of whether the appeal raises bona fide, arguable issues deserving full ventilation R9 before an appellate court. Upon reviewing the grounds of appeal, I am satisfied that they disclose questions warranting consideration, particularly regarding the alleged inconsistencies between the High Court's findings on proof of execution of the agreement and its conclusion that the respondent could not be bound by the agreement's contents in relation to the impugned transaction, and the judgment ultimately entered. Whether those issues will ultimately succeed is not for the present determination, bµt they are not frivolous. 23. The applicant further argues that it will suffer irreparable harm should execution proceed. The respondent, however, has asserted and the applicant has not disputed that it is solvent and financially capable of refunding the sums in issue should the appeal succeed. On the authorities, mere payment of a money judgment ordinarily does not constitute irreparable harm unless the applicant shows that recovery would be impossible or unlikely. This principle was clearly articulated in Luanshya Copper Mines v FirstRand Ireland and Others5 , where the Court held that; RlO "Where the judgment appealed against involves the payment of money, the appellant must show that if such money is paid, then there will be no reasonable prospect of recovering it in the event of the appeal succeeding. Such proof is what amounts to good and sufficient grounds warranting a stay." 24. The applicant has not demonstrated that the respondent is insolvent or unable to refund the judgment sum. On that basis alone, the threshold for establishing irreparable harm has not been established. Nonetheless, each case must be considered on its unique facts, and the discretion of the Court must be exercised judiciously and with full regard to the interests of justice. 25. I have also considered the issue of service of the High Court ruling, which the applicant stated was not promptly availed. The respondent has explained that service was properly effected, and indeed the applicant exhibited the ruling as "CKl." While the parties differ on the procedural sequence, I am satisfied that this issue does not materially affect the core question before this Court. What is relevant is that the applicant subsequently filed a renewed application within a Rll reasonable period, and no prejudice has been demonstrated to flow from the alleged delay. 26. Having weighed the competing considerations, I am satisfied that the grounds of appeal have high prospects of success, which should not be rendered nugatory by immediate execution. Further, I am not persuaded that granting a stay will cause any prejudice to the respondent, particularly as it asserts its financial capacity to meet any repayment order. In such circumstances, maintaining the status quo, while preserving the respondent's rights to the judgment sum pending the outcome of the appeal, serves the ends of justice. 27. I therefore take the view that although the applicant has not strictly satisfied the irreparable harm threshold set out in the Luanshya Copper Mines case, the justice of this case requires the preservation of the status quo until the appeal is determined. The respondent stands to suffer no real prejudice, while the appeal may be rendered less meaningful if execution is pursued in the interim. 28. In the exercise of my discretion, and in light of the arguable grounds raised, I am satisfied that good and sufficient R12 reason s ha ve been shown to warrant the intervention of this Court. CONCLUSION 29. Accordingly, the a pplication for a stay of execution of the judgment of the High Court delivered on 24th June 2025 p ending d etermination of th e appeal is hereby granted. Costs sh a ll be in t h e ca u se. DELIVERED AT LUSAKA THIS 1 8 T DAY OF DECEMBER, 2025 . •••............................•••............ MADAM JUSTICE Y. CHEMBE COURT OF APPEAL JUDGE R13