Oracle Media Productions Limited (T/A The Mast Newspaper) v Amon Chisenga and Anor (CAZ/08/287/2025) [2025] ZMCA 162 (6 November 2025)

.,. IN THE COURT OF APPEAL OF ZAMBIA~~ CAZ/08/287/2025 HOLDEN AT LUSAKA (Civil Jurisdiction} 8 ETW EE N : 0 6 ~•'l'/ 2 . ·- - · VIL REGISTRY 1 - 1. I · ··~~__tiOo,:,,. \ \l ORACLE MEDIA PRODUCTIONS LIMITED (T/A TH E MAST NEWSPAPER) APPELLANT AND AMON CHISENGA ZAMBIA DAILY MAIL LIMITED 15r RESPONDENT 2ND RESPONDENT Before the Hon. Lady Justice Abha Patel, S. C. in Chambers On 17th September 2025 For the Appellant Mr. G. C Ma lipilo Messrs. Nchito & Nchit o For the Respondent: Mr. S. Jacobs Messrs. Sandra Jacobs Advocates RULING Rl Cases referred to: 1. Michael Chilufya Sata v Chanda Chimba Ill and 3 Others 2010/HP/1282. 2. Sonny Paul Mulenga and Vismer Mulenga (Both Personally & Practicing as SP Mulenga International) {1999) ZR 101 3. Anuj Kumar Rathi Krishna v The People SCZ Judgment No.19 of 2011. 4. Nyampala Safaris Zambia Limited and others v Zambia Wildlife Authority and Others (SCZ/8/179/2013) 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 6. Barclays Bank of Zambia PLC and Jeremiah Njovu and 4 others (SCZ/8/21/2019) ZMSC 147. 7. Zambia Revenue Authority v Post Newspapers Ltd -SCZ Appeal no. 36 of 2016 8. Yosi Miti v Attorney General (SCZ/8/201/2015) 9. Winchester Cigarette Machinery Limited v Payne and Another 2 Times Law Report of 15/12/1995. Legislation Referred to: 1. The Court of Appeal Rules Statutory Instrument No.65 of 2016 2. The Court of Appeal Act No.7 of 2016 3. The Rules of the Supreme Court of England {Whitebook) 1999 Edition R2 1.0 INTRODUCTION 1.1 This is a Ruling on a Renewed Application brought by the Appellant for an order to Stay Execution of Judgment pending appeal pursuant to Order VII Rules 1 and 2 of the Court of Appeal Rules of 20161, the Court of Appeal Act No. GS of 2016.2 and Order 59/13/9 of the Rules of the Supreme Court 1999 Edition3 • 2.0 THE APPELLANT'S APPLICATION 2.1 The Application was filed on 13t h August 2025 by way of Ex- Pa rte Summons supporting Affidavit and Skeleton Arguments. The Affidavit was sworn by one NKANDU CHIBUYE, the Appellant vest with capacity to swear the contents of the Affidavit. 2.2 The deponent has averred in paragraph 5 that on 20th May 2025, the High Court delivered its Judgment in favour of the p t Respondent (Amon Chisenga) and ordered damages to be assessed. 2.3 It was deposed that on -18th June 2025, Oracle Media filed its Notice of Appeal and Memorandum of appeal challenging the Judgment of the Court below. 2.4 It was further deposed that on p t July 2025, the Appellant applied for a stay of execution of Judgment before the High Court which was granted ex parte which Order was subsequently discharged on 30th July 2025. 2.5 The Appellant placed reliance on plethora of cases such as Michael Chilufya Sata v Chanda Chimba and 3 others1 , Sonny Paul Mulenga and Vismer Mulenga (Both Personally & Practicing as SP Mulenga lnternational)2 and R3 Anuj Kumar Rathi Krishna v The People SCZ Judgment No.19 of 20113. It is the Appellant's submission that the grounds of appeal have reasonable prospects of success. 3.0 THE RESPONDENT'S ARGUMENTS 3.1 The ist Respondent filed his Affidavit in Opposition and List of Authorities with Skeleton Arguments on 10th September, 2025. The affidavit was sworn by one Amon Chisenga, the 1st Respondent. 3.2 The gist of the affidavit and arguments is that the Appellant' s application is incompetently before this Court, premised on the fact that the application is incorrectly couched and ought to have been couched to reflect that it was a renewed application . It is the ist Respondent's argument that the Court does not have jurisdiction to entertain the application . 3.3 It was also submitted that a perusal of the grounds of appeal irregularly annexed and placed in the Appellant's affidavit in support, do not establish any good nor sufficient grounds to warrant the stay of execution of judgment. 4.0 ANALYSIS AND DECISION OF THIS COURT 4.1 The Appellant has moved this Court for an Order for stay of execution of Judgment delivered on 20th May 2025 by way of Summons; Affidavit ~nd List of Authorities and Skeleton arguments which I have considered . R4 4.2 I am guided by Order X Rule 5 of the Court of Appeal Rules 1 provides: "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 immediate act or proceedings shall be invalidated, except so far as the Court may direct. 11 4.3 I have taken time to consider the authorities cited by the Parties. In the cited case of Nyampala Safaris Zambia Limited and others v Zambia Wildlife Authority and Others4, their Lordships of the Supreme Court provided guidance on what needs to be considered in determining whether to grant a stay of execution when they made the following pronouncements: "The position of the law is very clear. A stay of execution is only granted in good and convincing reasons. The rationale for this is clear, which is that a successful litigant should not be deprived of the fruits of litigation as a matter of course. The application must therefore demonstrate the basis on which a stay should be granted. 11 4.4 In considering whether to grant a stay of execution, one of the main issues to consider is whether there are prospects of success of the appeal. The case of Sonny Paul Mulenga and Others v lnvestrust Mercha.nt Bank2 guides on the principles for granting or non-granting of applications to stay execution of judgment pending appeal. 4.5 The case of Carmine and Watson Nkandu Sowa (suing as Administrator of the Estate of the late Ruth Bowa} v. Fred Mubiana and ZESCO Limited 5 illustrates the following: - RS "It is settled law that in an application for a stay of execution pending appeal, the considerations are: - - The prospect of the appeal succeeding; - Irreparable damage if a stay is not granted, and the appellant's appeal succeeds ... 11 4.6 I equally acknowledge the cited case of Barclays Bank of Zambia PLC and Jeremiah Njovu and 4 others6 which guides on the following: "That an applicant who desires to obtain a stay pending appeal must show that the appeal or intended appeal is arguable and has prospects of success. He must also show that unless the order of stay is granted, the appeal or intended appeal would be rendered academic. 11 4.7 The above makes it clear that more is required to persuade this Court that it is desirable, necessary and just to stay the proceedings pending an appeal. Therefore, the prospect of success is a key consideration in granting an order for stay of execution combined with the fact that the applicant may face financial ruin without the Order of Stay. 4.8 The Court is also alive to the principle established by the case of Zambia Revenue Authority v Post Newspapers Ltd 7 which emphasizes the position that a stay of execution is a discretionary remedy to be exercised judiciously and only on well-established principles. It should not be granted on sympathetic or moral considerations, and where a money judgment is involved . The applicant must show that payment would render recovery unlikely if the appeal succeeds. R6 4.9 The Court has paid close attention to the application before the Court, including the affidavit evidence and arguments on record. At the hearing on 17t h September 2025, Counsel placed reliance on the process filed. Counsel for the Appellant submitted that there is an appeal before the Court and at the same time there is likely to be proceedings for determination of costs. He argued that in the event that the Stay is not granted, it would render the pending appeal, academic. It was also submitted that i_t any event, it would lead to confusion as there would be two matters subsisting in the two Courts and prayed that the status quo be maintained pending the appeal. 4.10 On the other hand, the gist of the p t Respondent's argument is that a successful party should not be denied immediate enjoyment of the fruits of the judgments or ruling unless good and sufficient grounds are advanced or shown. 4.11 In their efforts to persuade the Court to grant the stay, the Appellant has argued that the appeal has high prospects of success. The Appellant has advanced 4 grounds of appeal which I have acknowledged and considered . 4.12 The Court has noted that no effort was made to show special circumstances, to warrant the exercise of judicial discretion in favor of the Appellant. The case of Yosi Miti v Attorney General 1SCZ/8/201/2015)8 refers where the Supreme Court, approving the reasoning in the case of Winchester Cigarette Machinery Ltd v Attorney General9 , held that an applicant must demonstrate circumsta·nces taking the case out of the ordinary. The Court is also alive to the very limited special circumstances, such as where recovery R7 • I of damages is unlikely if execution proceeds as guided Order 59 Rule 13{2) of the Rules of the Supreme Court of England, 1999 Edition3 • 4.13 This Court is therefore of the considered view that the Appellant has failed to sufficiently demonstrate in what way it will suffer irreparable harm. I note the argument of possible confusion if the matter proceeded in the lower Court. However, in my view this is a demonstration of an attempt to delay proceedings further. I am also dissatisfied with the reasons advanced in support of the application which are neither good nor convincing in the circumstances. 4.14 Therefore, the application for an Order for Stay of Execution is declined and the ex Parte Order of Stay granted on 26th August 2025 is discharged forthwith. Costs shall be for the p t Respondent, to be taxed in default of agreement. Dated at Lusaka this ........ ..... day of November 2025 (:;, I~ Hon. Lady Justice Abha N Patel, S. C R8