University of Lusaka Limited v Attorney General and All Unknown persons and Ors (APPEAL NO.2/2024) (9 April 2024) – ZambiaLII

CAZ/08/556/2023 IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO.2/2024 (Civil Jurisdiction) BETWEEN: UNIVERSITY OF LUSAKA LIMITED =--::---:---... APPLICANT , • (" ' :;; -- <'.'..,J' - ,~' . r•~· , , '. • r· • •• A ;: ·:-- " - !/ - . -- •~ , I/ \ AND \ 0 9 tf]2!, A;~ , \. ( • I( ':.J '! • - · 1 ' j ~~- ATTORNEY GENERAL ~ D-: _ ·.:~~~:~~t...-1 / 1 RESPONDENT ALL PERSONS UNKNOWN ST 2ND RESPONDENT MAUREEN KAKUBO MWANAWASA 3RD RESPONDENT CONSTANTINE HANGALA CHIMUKA Before Honourable Ms. Justice Makungu C. For the Applicant: Mrs. W.S Kankondo of Messrs Sil & Kay Advocates For the 1st Respondent: Miss N. Chongo Acting Principle State Advocate & Mr. K. Malikibo - State Advocate ✓ For the 2 nd Respondent: Mr. D. Jere of Messres Dickson Jere & Associates For the 3 rd Respondent: Mr. S. M Lungu & Mrs E. Mwale - Shamwana & Co RULING Cases referred to: 1. Dean Mung'omba Others v. Peter Machungwa Others (2003) ZR 17 & & 2. Zambia Revenue Authority v. Post Newspapers Limited SCZ Appeal No. 36 of 3. Barclays Bank PLC v. Njovu & Others SCZ 21 of 2019 4. Yosi Miti v. Attorney General SCZ/8/201/2015 Legislation referred to: 1. The Rules of the Court ofA ppeal S.I No. 65 of 2016 2. The Supreme Court Rules of England 1999 edition Scanned with CamScanner The applicant, pursuant to Order VII Rule 1 of the Court of Appeal Rules as read together with Order 59 Rule 13 of the Rules of the Supreme Court of England (RSC) 1999 Edition, has applied for an order of stay of proceedings pending the determination of the appeal. The application is supported by an affidavit and skeleton arguments dated 23 January 2024 . The applicant has stated that the grounds rd of appeal have prospects of success and that the appeal will be rendered nugatory in an event that the proceedings,ih the court below are not stayed. The applicant contends that no prejudice will be occasioned to the 1 Respondent who is currently in possession of st Lot No. 24802/M situate in Choongwe in the Lusaka Province of the Republic of Zambia, the subje~t 'p roperty of the p r oceedings . Further / that, no prejudice will be occasioned to the 2 and Respondents nd 3rd / as they were deemed to be in possession of the property by Ruling of .,/ the Court below dated 3 rd November 2023 . / In the applicant's skeleton arguments, reliance was placed on several cases including Dean Mung'omba Others v. Peter Machungwa & & Others on the court's jurisdiction and discretion to order stay of proceedings pending appeal to prevent an appeal from being rendered nugatory. -R2Scanned with CamScanner The applicant submits that the six grounds of appeal have prospects of success. The applicant proceeded to bring out portions of its Heads of Argument in a quest to show that the same have prospects of success. I shall not belabor to bring out the said arguments, suffice to state that the same have been read and considered. I was implored to grant the stay of proceedings pending appeal. At the hearing of the application, the applicant's advocate reiterated the arguments advanced in the skeleton argumenfu which I will not rehash. / The 1 Respondent's counsel did not oppose this application on the st / / basis that no prejudice would be ,occasioned to the 1st Respondent if I I I it is granted. ,, I ,' The 2 Respondent opposed the application and relied on the nd /I Affidavit and Skeleton arguments in Opposition to summons for a n order to stay proceedings pending appeal filed on February 2024. 2nd The gist thereof is that in the ruling passed by the lower court dated 31 January, 2023 it was held that the case will now be determined as though it was commenced by writ of summons and not by Order 113 of the Rules of the Supreme Court, which is subject of the application and appeal herein. It was the Respondent's contention 1st -R3Scanned with CamScanner Jauueoswe:::, 41!M pauueos that the application for stay would not be feasible in the matter as the ruling changes everything, including the prospects of the appeal succeeding. Further arguments revealed that there are now three matters involving the same property in the lower court. This has raised the issue on multiplicity of actions. It was contended that should the three matters be consolidated, they will run as one and if not, the other two matters will proceed as is. To this end, counsel for the 2 nd Respondent submitted that this application s_hould not be granted as it will be a mere academic exercise. Reliance was placed on the case of Zambia Revenue Authority v / Post Newspapers Limited • ,. ,' / wherein it was held: ,/ "Stay of execution sfJ.ould not be granted for mere convenience ... / neither should ) t be granted purely on sympathetic or moral consideration. Secondly, in exercising its discretion whether to / grant a stay or not, the court is entitled to preview the prospects o f success of the proposed appeal." a n The Respondent opposed this application by way of affidavit 3rd st and skeleton arguments filed on 1 February 2024. The gist thereof is that the applicant's insistence to have the matter proceed without -R4- parties with an interest in the subject matter does not amount to prospects of success of the proposed appeal. That if the application is granted, prejudice will be occasioned as the matter will not be dealt with expeditiously. Reference was made to the case of Barclays Bank PLC v. Njovu & Others (3). The Court in the said matter held: "The Supreme Court has been consistent in its position that orders staying execution o f proceedings shall not be routinely granted as they often have the effect o fe ither _denying successful parties o f the benefits o f their judgme_nts or unduly delaying conclusion o f matters to attain the much needed finality to litigation ..." It was the 3 rd Respondents contention that to obtain a stay of , / proceedings pending a ~ e a l , the applicant must demonstrate the appeals arguability?/ prospects of success and the risk of rendering the appeal academic. / I have considered the application, the affidavits on record, the arguments by the concerned parties and the grounds of appeal stated in the memorandum of appeal. The grounds are as follows: -RSScanned with CamScanner 1. The lower court erred in law and fact when it held that the 2 nd respondent w a s entitled to file an affidavit in opposition even though she was not a party. 2. The lower court misdirected itself in law and fact when it held that the 2 respondent was entitled to file an affidavit in nd opposition, having been served with court process under the category o f 'unknown persons.' i} 3. The lower court erred in law and fact when held that formal inclusion o f 2nd and respondent was -necessary to a s s e s s 3rd whether the mode o fc ommencement y.nder Order 113 o ft he RSC, was legit. 4. The lower court misdirected,.itself in law and fact when it held ... , // ) '0, that paragraphs: 9, 12 and 13 o f the 2 respondent's nd affidavit in oppositfon contained material facts and bases upon / which the fact's deposed to be anchored. 5. The lo wet court erred in law and fact when it ordered the joinder o ft he 3rd respondent to the action pursuant to Order XW rule 5 o f the High Court rules on a matter commenced by originating summons pursuant to Order 113 rules o f the Supreme Court. The lower court misdirected itselfi n law and fact when it d e fe rred 6. the determination o ft he application for consolid t . h w a ton e n all the -R6Scanned with CamScanner facts for the court to make a determination on the necessary application were before it and the parties having been heard. The grant of a stay is discretionary and an equitable remedy. It may be granted on the following principles: 1. Where special circumstances of the case so require; or Where if the stay is not granted the appeal will be rendered 11. nugatory or academic. Where the appellant/ applicant would suffi r loss which could 111. not be compensated in damages. (See order 59 / 13 / 2 RSC) / . The Supreme Court in the case of Yo~i Miti v Attorney General 4 < ) / / adopted the principle that was ½n:unciated in Winchester Cigarette / / Machinery Limited that an ~pplicant for a stay can be granted a stay only he/ she can sho\}1/ that there are special circumstances which if take the case out of'the ordinary. A thorough perusal of this matter has not exhibj ted any special circumstances taking this case out of the ordinary. The Applicant contends that the appeal has prospects of success. I nd am inclined to accept the 2 Respondents reasoning t h a t ground 5 has dim prospects of succeeding as it is dealing with commencement of the action pursuant to Order 113 of the Rules of the Supreme -R7Scanned with CamScanner Court when the lower Court by the Ruling dated 31 January, 2023 st referred to in the earlier part of this Ruling, decided to deem the matter as having been commenced by Writ of Summons. The other grounds of appeal appear to have no realistic prospects of success. I am of the considered view that justice will be better served if all parties with an interest in the matter and who are likely to be affected by the outcome are heard and the matter is disposed of expeditiously. / Under the circumstances, I do not see what prejudice the applicant / will suffer if a stay is not granted. / I therefore exercise my discretion ,=md dismiss the application for stay / / of proceedings. Costs in the cause. / / ., ~ i;>ated this.g_···· day of April, 2024. / C.K. MAKUNG COURT OF APPEAL JUDGE -RSScanned with CamScanner