ZSIC Life Limited and Anor v Yvonne Bwalya (CAZ NO/08/324/2025) (11 December 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA CAZ NO/08/324/2025 HOLDEN AT LUSAKA .----:-- . (Civil Jurisdiction) /. BETWEEN: APPELLANT ZSIC LIFE LIMITED lST ZSIC LIFE STAFF PENSION 2ND APPELLANT AND YVONNE BWALYA RESPONDENT Before Hon. Mrs. Justice A. M. Banda-Bobo in Chambers on 11th December, 2025. For the Appellants: Mr. C. Kaela of Messrs G. M. Legal Practitioners For the Respondent: Mr. L. C. Ng'onga of Messrs Kamanga Ng'onga Legal Practitioners on brief for Messrs J . Kabuka and Company RULING • I • Cases referred to: 1. Sonny Paul Mulenga and 3 Others v. Investrust Merchant Bank (SCZ Judgment No. 15 of 1999) 2. Zambia Revenue Authority v. Post Newspapers Limited (2016) ZR 39 3. Nyampala Safaris Zambia Limited and Others v Zambia Wildlife Authority and Others (2004) ZR 49 4. Luanshya Copper Mines Plc v. First Rand Ireland and Other Creditors of Luanshya Copper Mines Plc and 2 Others (SCZ/8/ 168/2000) (Unreported) 5. Zambia National Commercial Bank Plc v Ernestina Sakala and 62 Others, (CAZ/ 08 / 168/2019) (unreported) 6. Ajomali v Yuduat (No. 2) (1991) 5 NWLR 266 7. American Cynamid Company v Ethicon Limited (1976) AC 396 8. Preston v Luck (1884) 27 ChD 497 Legislation and Other Works referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 (CARs) 2. The Court of Appeal Act (CAA) No. 7 of 2016 1.0 INTRODUCTION 1.1 This is a Ruling on a Renewed Ex-parte Summons to stay Execution of Judgment pursuant to Order X rule 2(1) and (5) of the Court of Appeal Rules, (CARs) as read together with Section 9(b) of the Court of Appeal Act (CAA), No. 7 of 2016 of the Laws of Zambia. The application, together with an affidavit in support and skeleton arguments, was filed on 20th October, 2025. 1.2 The Judgment the Applicant impugns, was delivered by Hon. Mrs. Justice Dr. Winnie Sithole Mwenda on 4th June, 2025, at the High Court in Nd ola. 2.0 BACKGROUND 2.1 The brief background 1s that the Respondent had sued the Appellants in the Court below claiming various reliefs, by way of Writ of Summons and Statement of Claim. R2 2.2 In her Judgment, the subject of this application, the learned Judge found in part, for the Respondent, and ordered that the Applicants (Defendants) render a proper account of the Respondent (Plaintiff's) unpaid accrued pension benefits under the defined Benefits Scheme from 1991 to 2018, and the Defined Contribution Scheme from December, 2018 until the Plaintiffs retirement in January, 2022. 2.3 Secondly, that the Defendant shall pay the Plaintiff the sums as shall be accounted for in the preceding paragraph. 2.4 Thirdly, the restoration of the Plaintiff on the 1st Defendant's payroll at terminal salary rate of K21, 913. 11 plus allowances from June, 2022 until the Plaintiffs pension benefits as ordered in the above paragraph are fully paid. 2.5 Fourthly, that the salary due to the Plaintiff from June, 2022 to the time of restoration on the 1st Defendant's payroll shall be paid together with interest at short term deposit rate from the date of the Writ up to judgment date, and thereafter, at the average lending rate as determined by the Bank of Zambia up to date of final payment. Each party was to bear own costs. R3 2.6 It is that Judgment that riled the Applicants herein, who promptly filed a Notice and Memorandum of Appeal, to appeal the said Judgment. One ground of Appeal was fronted, namely: "That the Hon. Judge erred in law and infact when she ordered that the respondents be restored to the 1st Appellant's payroll at terminal salary of K21,913.18, plus allowances from June, 2022 until the Plaintifrs pension benefits are paid." 3.0 AFFIDAVIT IN SUPPORT 3.1 In the Affidavit in Support, sworn by Busiku Muzyamba, Manager, Human Capital, it was averred that the Appellant was dissatisfied with a portion of the Judgment dated 4th June, 2025, and have appealed. 3.2 It was the Applicant's assertion that the appeal has high prospects of success. 3.3 That an application for a stay of execution was made in the Court below, but the same was declined on 13th October, 2025. He believed that the Court has jurisdiction to entertain the application. That if the Ex-parte order to stay execution R4 pending appeal is not granted, the appeal will be rendered, nugatory and a mere academic exercise as the Respondent will proceed to enforce the judgment against the Respondent. 4.0 AFFIDAVIT IN OPPOSITION 4.1 The application was opposed by way of an affidavit sworn by the Respondent. She averred that her counsel had advised her that the appeal by itself does not justify the grant of a stay of execution. 4. 2 Further that counsel had advised her that the mere assertion that the Appellants believe there are high prospects of success, without disclosing the strength of the ground relied upon would not entitle the Applicants to a stay of execution. That after due consideration of the sole ground of appeal, it is evident that the Appellants are unlikely to succeed with their appeal on the sole ground. 4.3 It was her belief that the Appellant's Application is intended to merely delay the settlement of the Judgment to her detriment. RS 5.0 AFFIDAVIT IN REPLY 5.1 The Appellant filed an affidavit in Reply. It was reiterated that the appeal has prospects of success and it would be premature for the Appellant to labour and disclose the strength of the appeal, as to do so would be to delve into the merits of the appeal. That the Judgment appealed against grants the Respondent the right to execute and if not restrained, the Respondent will execute the Judgment and the Appellant will suffer great prejudice which cannot be atoned for in damages, as the said execution is likely to affect the going concern of the Appellant. That the Respondent is retired, and if the Appellant succeeds with the appeal, she will not have the means to restore the damage which the Appellant shall suffer if a stay is not granted. It was repeated that if the application is not granted, the appeal will be rendered nugatory. 6.0 ARGUMENTS 6. 1 Each party filed skeleton arguments 1n support of their respective positions. I have carefully considered the said R6 arguments, but for expediency, I will not reproduce them in this Ruling. 7.0 HEARING 7 .1 At the hearing, counsel for the Applicant, Mr. Kaela, relied on the documents filed in support, with brief oral augmentation. He argued that the Respondent is an individual and in the event that she executed, but ultimately the appeal went in the Applicant's favour, chances of recovering from her are slim, while the opposite would be true because the Appellant is a corporate entity. That even if the appeal did not succeed, the Applicant can pay the Respondent. 7 .2. In response, counsel Mr. Ng'onga, for the Respondent, relied on the documents filed in opposition. It was his assertion that the Applicant has not shown clear prospects of success of the appeal. Further that the Judgment is premised on the Respondent's Constitutional right as shown in the skeleton arguments. In Reply, the Applicant's counsel repeated the arguments in Reply. R7 8.0 ANALYSIS AND DECISION 8. 1 I have carefully considered the application before me, the affidavits for and against, the skeleton arguments by each party and the oral augmentation by counsel for each side. 8.2 The issue to resolve is whether this is a matter in which I can exercise my discretion and grant an Order to stay the Judgment of the lower Court pending the hearing and determination of the appeal. 8. 3 Order 10 rule 5 of the CARs is categorical that an appeal will not operate as a stay of execution. 8.4 It is couched thus: "5. An appeal shall not operate as a stay of execution or of proceedings under the judgment appealed against, unless the High Cour, quasi-judicial body or the Court so orders ... " 8. 5 Order 10 rule 5 clothes this Court with discretionary power to grant a stay of execution pending appeal. The discretion ought, however to be exercised judiciously, and on well established principles. It is trite that a party is not entitled to a stay of R8 execution as of right. These principles have been set out by counsel for each party. 8.6 In our jurisdiction, the seminal case on this issue is that of Sonny Paul Mulenga and 3 Others v. Investrust Merchant Bank1 which instructs on the requirements that ought to be , present when considering an application such as the present one. Further elucidation is found in the case of Zambia Revenue Authority v. Post Newspapers Limited2 where the , Court stated: "(i) That the grant of a stay of execution is a discretionary remedy for which a party is not entitled as of right; (ii) That such discretion must be exercised judiciously and on well-established principles; (iii) That the successful party should not be denied the immediate enjoyment of a judgment unless there are good and sufficient grounds; (iv) That a stay of execution should not be granted for the mere convenience of a party or on purely sympathetic or moral considerations; (v) That in the exercise of the discretion, whether or not to grant the stay, the Court is entitled to R9 preview the prospects of success of the proposed appeal." 8.7 Further, in Nyampala Safaris Zambia Limited and Others v Zambia Wildlife Authority and Others3 it was held that: , "The position of the law is very clear. A stay of execution is only granted on 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 applicant must therefore demonstrate the basis on which a stay should be granted." 8.8 The applicants here contend that the appeal has prospects of success. They are aggrieved by the lower Court's order of reinstatement of the Respondent on the payroll, and payment of terminal salary of K21,913.18, plus allowances from June, 2022, until the Plaintiff's pension benefits are paid. The Respondent on the other hand contends that it is her constitutional right to be retained on the payroll until payment of her pension dues are fully made. 8. 9 Having previewed the sole ground, I am, without delving into the merits of the case, of the view that the sole ground of appeal R10 is not totally hopeless. There are some prospects of success, such that I am inclined, on that basis to grant the stay. 8. 10 Further, I have not lost sight of the fact that this appeal relates to a money judgment. The applicant must show that if such money is paid then there must be no reasonable prospect of receiving it in the event that the appeal succeeds. The case of Luanshya Copper Mines Pie v. First Rand Ireland and Other Creditors of Luanshya Copper Mines Pie and 2 Others4 provides guidance. 8.11 In casu, the Applicant has been ordered to reinstate the Respondent on the payroll from June, 2022 until the Plaintiff's pension benefits are paid and at a terminal salary of K2 l, 913 .18 plus allowances. The amounts due from June, 2022 to the time of restoration on the payroll would attract interest, at short term deposit rate from the date of Writ up to judgment date and thereafter, at the average lending rate as determined by the Bank of Zambia up to the date of final payment. 8.12 The amount of money, when computed, will not be a small amount. In the case of Zambia National Commercial Bank Rll Plc v Ernestina Sakala and 62 Others5 (unreported) Kondolo, SC had this to say: "The sum of K60,860,238 demanded by the respondents was colossal and execution of such a sum would disrupt the operations of the appellant, which is a large commercial Bank." 8.13 I hold similar view in this case, namely that execution for the ordered amount pending appeal, would disrupt the operations of the Applicants who are pension providers, not only for the Respondent, but for many other beneficiaries. The effects of such disruption would be keenly felt. 8.14 I am further fortified in my views, by the holding in the Nigerian case of Ajomali v Yuduat6 cited for persuasive purposes, where , it was stated that: "For avoidance of doubt, a recondite point of law such as can constitute a special circumstance for purposes of a stay of execution, is in my view not a point of law, which as suggested ... not a difficult point in an area of law on which there is no previous authoritative decision. Rather it is one which having regard to the substance of the appeal, if a stay is not granted, and R12 the case is eventually decided in favour of the appellant, the resultant circumstances would have made it the wiser that a stay should have been granted it may be that the ground is such that if the appeal !..!.! eventually succeeds, after the refusal of a stay, an irreparable damage or injury or injustice shall have been occasioned, in that there can be no return on the status quo or that the res of the litigation shall have gone, so that the successful party shall reap an empty judgment. The recondite point of law with reference to an application for a stay of execution is not determined in the abstract by reference to the importance or difficulty of the point raised in the ground of appeal per se. Rather, it is determined in concrete terms by reference to what the effect of a refusal of a stay of execution may be on the rights of the appellant if successful in the appeal" (underline mine for emphasis only). 8.15 Further to the above, the case of American Cynamid Company v Ethicon Limited7 is instructive, where Lord Diplock observed among others, that, the extent to which the disadvantages to each party would be incapable of being compensated, is always a significant factor in assessing where the balance of convenience lies. That if the factors appear to be evenly RB balanced, it is a counsel of prudence to take such measures as are calculated to preserve the status quo. 8. 16 It is my view, that in this matter, it is counsel of prudence to preserve the status quo, as disruption to the operations of the Applicant would have far reaching implications. To buttress my view, I advert to the case of Preston v Luck8 which though , dealing with an injunction, is relevant here, where it was held inter alia, that: "to keep this in status quo, so that if at the hearing the plaintiffs obtain judgment in their favour, the defendant will have been prevented from dealing in the meantime with the property in such a way as to make that judgment ineffectual." 8.17 A stay of execution, which is akin to an injunction, is meant among other things to preserve the status quo of the parties pending hearing and determination of an appeal. 8.18 The Applicant contends that the Respondent is retired and on pension. That if execution is done, and the appeal is determined in the Applicant's favour, she will have no means to reimburse R14 the Applicant. The Respondent did not respond or rebut this in any way. 8.19 Considering all the circumstances of this case, I am persuaded that this is a matter in which I can exercise my discretion and grant the stay of execution as applied for. I find merit in the application and the same is hereby granted. The Ex-parte Order to stay Execution granted on 22nd October, 2025 is hereby confirmed. 9.0 I make no order as to costs. DELIVERED AT LUSAKA THIS 11TH DAY OF DECEMBER 2025. ~ .. ................ ........................ . HON. MRS. JUSTICE A. M. BANDA-BOBO COURT OF APPEAL JUDGE RlS