Shree Vagmi Cotton Limited v James Katengo (CAZ/08/564/2022) [2023] ZMCA 386 (10 January 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) CAZ/08/564/2022 BETWEEN: SHREE V AGMI COTTON LIMITED Appellant AND t.flJ\lllC OF ZAM ~k lOF~ JAMES KATENGO ~ ~ 0 .. 1 AN 2023 ~ Respondent Coram: /J , C l Vil ~EGISTRY 2 ' Q Hon. Lady Justice N. A h on 10th January 2023 · i\l ' f ,:-:-.._-.-.~ '{.,~· ambers For the Applicant: Mr. W. Simutenda of Mesdames TMB Advocates . For the Respondent: Mr. C. Mutambalilo of Messrs A Mbamabara Legal Practitioners EXTEMPORE RULING Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 2. The Rules of the Supreme Court of England, 1965 (1999 Edition) White Book Cases referred to: 1. Nyampala Safaris Zambia Limited, and others v Zambia Wildlife Authority, and Others CZ/8/179/2003 (unreported) This is a ruling on an inter-parte application for an order for stay of execution of the High Court Ruling of the Honourable Musona J, delivered in the High Court on 28th December 2022. Rl The application was brought by way of ex-parte summons on 4th January 2023 pursuant to Order X Rule 5 of the Court of Appeal Rules and Order 47 of the Rules of the Supreme Court. It is supported by an affidavit of I 0th August 2022 sworn by one Chinama Chocha, the Operations Manager in the appellant company. He contends that by a judgment of the lower Court of 2!51 October 2022, the learned Judge dismissed the entire claims of the respondent when the Court found at page JI0 thereof that the respondent had not substantiated his claims. He contended further that at page Jl 1 of the said judgment, the Court went further to state that ' The net result is that the Plaintiff has not satisfied the benchmark as set in the above cases. Consequently, I dismiss the case by reason of insufficient evidence.' A copy of the judgment was exhibited and marked as CC I. The deponent further contends that despite this judgment, to their surprise the respondent made a claim for the payment of the sum ofK372,225 by letter of 25 th October 2022 to which they responded disputing the indebtedness and reminding the respondent that the High Court had dismissed its claims. However, to their further surprise, the respondent proceeded to issue a Writ of fieri facias against them on 29th November 2022. That they proceeded to apply to set aside the said Writ of fieri facias for irregularity on the basis that the respondent was not due any amounts of money. By an Ex-tempore Ruling of the lower Court of 28th December 2022, the Court dismissed the application to set aside the Writ of Fifa and discharged the ex parte Order for Stay of Execution granted to it on the I 0th of December 2022. Being dissatisfied with the entire Ruling of the lower Court, that it had filed an appeal into this Court and that it believe that the appeal had a high chance or prospect of success. R2 ,_ The deponent further contended that there was a threat of the respondent executing the said ruling and therefore sought a stay of execution to avoid the appeal being rendered a nugatory. The application for a stay was heard ex-parte on the 4th of January 2023 and an exparte order of stay of execution of the said Ruling was granted in favour of the Appellant. I ordered that the matter be heard inter-parte on 10th January 2023. The respondent opposed the application for a stay of execution and filed an affidavit in opposition on 9th January 2023 sworn by one James Katengo. He contended that the appellant was misleading the Court by alleging that the lower Court had dismissed its claims when in fact not and that the learned Judge in the Court below did not render any judgment to that effect. He insisted that the lower Court had in fact granted his claim for payment ofK372,225 at pages Jl 1 and J12 of the judgment. The deponent further contends that this order of the lower Court granted in the judgment was never satisfied from the commencement of the action to date despite repeated reminders and hence the issuance of the Writ offierifacias. The deponent also argued that there is no appeal against the judgment of the lower Court and that the appeal against the Ruling of the lower Court has no merit. Lastly, the respondent contended that the Sheriff of Zambia had already executed the Writ of fieri facias and seized items belonging to the appellant and hence this application has no merit. The matter was heard inter-parte before me today 10th January 2023. The parties were represented by their respective Counsel and they both relied on their affidavits and arguments filed on the 4th and 9th January 2023 respectiv~ly. R3 I have carefully considered the evidence before me and the arguments by both counsel. The application was brought pursuant to Order X Rule 5 of the Court of Appeal Rules. The said Order provides that: '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. ' The provisions of Order X Rule 5 of the Court of Appeal Rules clearly illustrate that an appeal does not operate as an automatic stay of execution or of proceedings. An appealing party is expected to make the requisite application should it so desire to secure an order staying execution of a judgment or of proceedings in the lower Courts. Similarly, the provisions of Order 47 Rule 1 of the Rules of the Supreme Court (White Book) empower a Court to stay the execution of a judgment or order by writ of fieri facias either absolutely or for such period and subject to such conditions as the Court deems fit. Their Lordships of the Supreme Court of Zambia provided guidance on what needs to be considered in determining whether to grant a stay of execution in the case of Nyampala Safaris Zambia Limited, and others v Zambia Wildlife Authority, and Others when they made the following pronouncements that 'a stay of execution is granted on good and convincing reasons.' The application must therefore clearly demonstrate the basis of which a stay should be granted.' R4 The Courts have been consistent in holding that a stay of execution must only be granted on good and convincing reasons and that the applicants must clearly demonstrate the basis of which the stay should be granted. Counsel for the appellant has argued that the appeal has high prospects of success on account of the inconsistencies at pages Jl l and J12 of the judgment of the Court and the subsequent Ruling. I am mindful that an appeal has been filed in relation to the Ruling of .the lower Court and that some of the issues raised herein will be the subject of that appeal. That notwithstanding, in determining this application, I have reviewed the Judgment and the Ruling of the lower Court of 21st October 2022 and 23 rd December 2022 respectively, and it is evident on the face of it that there are inconsistencies in the Orders of the lower Court in relation to the claims by the appellants and the respondent. On the one hand, the Court finds that the parties have not proved their cases and dismisses the claims but on the other hand, the learned Judge appears to refer to amounts being owing to the respondent. This has resulted in the appellant bringing an appeal to this Court. In view of the foregoing, I am of the considered view that the appellant has demonstrated that there are indeed good and convincing reasons to grant a stay of execution of the Ruling of the lower Court pending the hearing and determination of the appeal. I accordingly, confirm the Order for stay of execution of the Ruling of the lower Court of 28th December 2022. The same shall remain in force until the determination of the appeal in this matter or until further order of this Court. RS ... ,· . The costs shall be in the cause. Dated at Lusaka this 10th January 2023. ~ ;arpe-Phirr COURT OF APPEAL JUDGE R6