Petrolink Limited v Sydney Chisanga and Anor (2021/HN/078) (22 May 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2021/ HN/ 078 AT THE DISTRICT REGISTR (-'.\;puuuq o,, <-,., ~ ;'.A_MB)iA . HtGHcou~or 111~,-i Ipt, HOLDEN AT NDOLA .. ~:.,, 2 2 MAY 2925 ,m (Civil Jurisdiction) L. 'A'"' I ·• ""''A ( ~.0 ~,,, ' ""''qr BETWEEN: :'l:.,~.tf ,,.,. • PETROLINK LIMITED PLAINTIFF AND SYDNEY CHISANGA 1 S T DEFENDANT ALPHA ENTERPRISE 2ND DEFENDANT BEFORE THE HONOURABLE MADAM USTICE M.C. MULANDA IN CHAMBERS. FOR THE PLAINTIFF: Mr. T.M. Chabu - Messrs. Terrence Td Chabu Co. FOR THE DEFENDANTS: Ms. N.M1· Mulenga - Messrs. Isaac & Partners Mr. A. Sakala - Messrs. Simeza, ~angwa Associates. RULING R2 CASES REFERRED TO: 1. Zambia Revenue Authority Vs. Post rewspapers Limited, SCZ No. 18/2016. 2. Watson Nkandu Sowa (Sued as Administrator of the Estate of the Late Ruth Sowa) Vs. Fred Mubiana and ZESCO Limited (2012) Z.R. I 165. 3. Barclays Bank Zambia Pie Vs. Jeremiah Njovu and 41 Others, I SCZ/8/21/2019. 4. Wilson Masauso Zulu Vs. Avondale Hi using Project Limited (1982) Z.R. 172. 1.0 INTRODUCTION 1.1 This is the Plaintiffs applicatioj to stay execution of the Court's Judgment dated 251 March 2025, pending h determination of the appeal by the Court of Appeal. The I application is supported by an affidavit which was sworn by Maxwell Matolo Kilewe, the Plaintiff Company's Managing I Director. R3 2.0 PLAINTIFF'S AFFIDAVIT IN SUPPORT 2.1 The Deponent averred that on 25th March 2025, this Court rendered a judgment in favour of the Defendants, wherein the Court ordered that the Plaintiff field to the 2nd Defendant vacant possession of the two fillini. stations, namely, Plot No. KALU/LN-1004233-207, Kaluluslii, and Subdivision No. 1 Subdivision G of Farm 3323, Mkhshi, within 14 days of the f said Judgment. That, the Court L rther awarded payment of :::::::cceacs accrued, as well as esne prnfits the unpaid fo, 2.2 The Deponent avowed that the Plj ntiff, being dissatisfied with the said Judgment, had since file,d a Notice of Appeal to the Court of Appeal. A copy of the said Notice of Appeal was exhibited as "MMKl". Filed togetl er with the Notice of Appeal, was a Memorandum of Appeal, whr h was marked "MMK2". 2.3 The Deponent further avowed th1t, unless the judgment was stayed, pending the determination of the appeal, the R4 Defendants would take up posst:;ssion of the two premises within 14 days from the date of Judgment as was ordered by the Court. That, the Plaintiff, as ai standard licence holder for retail petroleum products, was subject to the procedures and cegulation, established by the Ent gy Regulation Baaed {ERB), in winding up operations at the filling stations. 2.4 The Deponent avowed that the Pl1intiff risks its licence being cancelled by the ERB if it promp ly ceases operations of the two filling stations within 14 days of the Judgment as ordered by the Court, without giving ERB the requisite notice. He averred that the Plaintiff would be prejudiced if a stay of execution was not granted, as thJ Defendants would proceed to take up possession of the + o filling stations without compensating the Plaintiff for tre improvements made to them. 2.5 It was the Deponent's furtheri lnverm ent that, unless the Judgment is stayed, the appeal be cendeced an academic exercise or nugatory. That, it would be very difficult to recover RS any sums due to the Plaintiff as compensation for the improvements carried out by the Plaintiff on the two filling stations, in the event that the Court of Appeal allows the appeal. 2.6 The Deponent further avowed that the Plaintiff will suffer I irreparable damage which cannot be atoned for in damages if I it is evicted from the subject filling stations, considering that it has been operating the same for a reasonable time. 3.0 PLAINTIFF'S SKELETON ARGUMf NTS 3.1 The Plaintiff filed Skeleton ArJments in support of the application. It was submitted that the Plaintiff has demonstrated, in its grounds of appeal, that it has real prospects of success with its appl al to the Court of Appeal. Counsel submitted that the Courtl[s clothed with disccetion to grant the Plaintiff a stay of exe ution of the Judgment 1n question. R6 3.2 That, in casu, the Plaintiff has advanced good and sufficient reasons for the Court to exercise its discretion to stay execution of the Judgment. 3.3 Counsel reiterated that if the judgment is not stayed, the Plaintiff \\rill suffer irreparable damage which cannot be atoned for by an award of damages. He further reiterated that the appeal will be rendered an academic exercise or nugatory if stay of execution is not granted. Counsel submitted that the Plaintiff \.\'lll be ruined unless the Jlh.dgment is stayed. · 3.4 The Court was beseeched to ordef a stay of execution of the Judgment in question, pending the hearing and determination of the appeal by the Court of Appec1-l. 3.5 On l•t April 2025, I granted the ryaintiff an Ex-parte Order of Stay and adjourned the matter for hearing the application inter-partes. R7 4.0 DEFENDANTS' AFFIDAVIT IN OPPOSITION 4.1 On 29th April 2025, the Defendants filed an affidavit in opposition, which was sworn by Natalie Mwenya Mulenga, Counsel seized with conduct of this matter on behalf of the 1st and 2°c1 Defendants. 4.2 The Deponent averred that the Plairtiffs application for stay of execution pending appeal had not demonstrated that the appeal had prospects of success. That, the issues raised in the intended appeal are new and will not be entertained by the Court of Appeal. She further averred that the Plaintiff's application does not disclose an} special circumstances or sufficient reason upon which the Court may grant an Order for stay. 4.3 The Deponent was of the belief that the Plaintiff will not suffer any irreparable injury if the order for stay is not granted. She avowed that the 1• 1 and 2nd Defendants will be greatly RS prejudiced by an Order estopping them from enjoying the fruits of the judgment which was rendered in their favour. 5.0 DEFENDANTS' SKELETON ARGUMENTS 5.1 The 1st and 2nd Defendants filed Skeleton Arguments in support of the affidavit in opposition. It was submitted that the Plaintiff has failed to demon~trate that the appeal has prospects of success or that it will suffer irreparable injury if it is not granted a stay and the appeal is successful. 5.2 Counsel submitted that the Plaintiff should not be granted a stay simply for mere convenience pr purely on sympathetic or moral considerations. In support of the submission, the Court was referred to the case of ZAMBIA REVENUE AUTHORITY Vs. THE POST NEWSPAPER LIMITED1 . 5.3 Counsel argued that the Plaintiffs appeal attacks this Court's findings of fact, which the Appellate Court would not easily reverse unless shown that they were either perverse or made R9 in the absence of relevant evidence or upon misapprehension of the facts. That, in casu, none of the situations named above, were relevant. 5.4 It was further argued that in its grounds of appeal, the Plaintiff has ,aised new issues, w+ h wm not pleaded in the matter, and were, therefore, beyond the scope of the appeal. Counsel cited the issues relal ng to compensation for improvements on the filling statiol s; and conditions that are tied to the Plaintiffs operating t cence, which were not a subject of the judgment, as new Issues which the appeal is raising. 5.5 Counsel further submitted that t!he Plaintiff has not shown sufficient grounds or special cirlumstances to warrant the grant of stay. It was contended tJ at, granting the Plaintiff an Order of stay, will greatly prejudicJ the Defendants as they will be deprived of the fruits of thei judgment. The Court was urged to discharge the Ex-parte Order of Stay, which was granted to the Plaintiff on l•t April 2025, with costs. RIO 6.0 HEARING OF THE APPLICATION 6.1 On 2nd May 2025, at the hearing of the Plaintiffs application for an Order of stay of the Judgment, pending the hearing and determination of the appeal by the Court of Appeal, Counsel for the parties relied on their clients' respective affidavits and Skeleton Arguments filed in this matter. 6.2 I note that the oral submissions by both parties to augment their clients' affidavits and Skeleton Arguments were, in fact, a repeat of the arguments already on the record. I shall, therefore, not repeat them here. 7.0 COURT'S DECISION 7 .1 I have carefully considered the Plaintiffs application for an Order to stay execution of the judgment, which was delivered by this Court in favour of the Defendants. I have also taken into account the arguments by Counsel for both parties. Rll 7.2 The parties are in agreement on the principles a court faced with an application for stay of execution of a judgment pending appeal ought to follow. 7.3 The principles the court should oonsider, whether or not to grant a stay of execution, are well settled. These are: the prospect of the appeal succeeding and irreparable damage in the event that the court does not grant a stay and the appeal succeeds (see the case of WATSON NKANDU BOWA (Sued as Administrator of the Estate of the Late Ruth Bowa) Vs. FRED MUBIANA AND ZESCO LIMITED2 In the case of ). ZAMBIA REVENUE AUTHORITY Vs. POST NEWSPAPERS LIMITED, supra, the Supreme Court guided that the prospect of success of the appeal is a key consideration in an application for stay of execution pending appeal, when it stated as follows: "We wish to emphasize that the prospect of success of the pending appeal, is a key consideration, in deciding whether or not to stay execution of the R12 judgment appealed against... If a Court knows and says that the appeal will fail, then there is no reason, in law, to stay execution of the judgment appealed against." 7 .4 In considering whether or not there are prospects of the appeal succeeding, I am required to preview the prospects of success of the Plaintiffs appeal. In doing so, I am, however, precluded from delving into the actual meri s of the appeal which can only be done by the appellate court. Malila, JS, as he then was, in his ruling, eloquently guided in the case of BARCLAYS BANK ZAMBIA PLC Vs. JERfMIAH NJOVU AND 41 OTTHERS3 as follows: , "In the present case, the applicant applies for a stay pending determination of the application for leave to appeal. There is no appeal presently pending. Had an appeal been pending, I would be enjoined to preview the prospects of success of such appeal. In doing that, I would not be expected to delve into the actual merits of the appeal which is properly in the domain of the appellate court." Rl3 7.5 In casu, the Plaintiff contends thaT its appeal has prospects of success as demonstrated in the grounds of appeal. On the other hand, the Defendants contend that the Plaintiff did not demonstrate that the appeal has prospects of success. 7.6 I have scrutinized the grounds o~ appeal, which essentially attack this Court's findings of rabt. In the case of WILSON MASAUSO ZULU Vs. AVONDALE HOUSING PROJECT I LIMITED4, the Supreme Court held that: "The appellate court will only rverse findings of fact made by a trial court if it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or uplon misapprehension of the facts." 7.7 Having considered the Judgment l ppealed against, I am of the view that the findings of fact werel based on relevant evidence before me and were not perverse. Rl4 7 .8 I note that, in its appeal, the Plaintiff complains about the order of the Court that compels it to vacate the two premises within 14 days from the date of Judgment. The Plaintiff asserts that the same offends the Energy Regulations Board's procedures on winding up of operations of a filling station. That, a prompt cessation of opeJ1ation of the filling station would expose the Plaintiff to risk of cancellation of its operating licence by the Energy Regulation Board. 7 .9 I further note that the Plaintiff is concerned with the improvements it made to the subject filling stations. That, the Court did not award compensation for the said improvements. 7.10 Having reflected on the contentiofs by the Plaintiff, above, I am of the considered view that the same do not show that the appeal has prospects of success. (rranting a stay on the basis of the above remonstrations would be granting a stay for mere convenience of the Plaintiff, pure}y on sympathetic or moral considerations, which the Supreme Court in the case of Rl5 ZAMBIA REVENUE AUTHORITY Vs. POST NEWSPAPERS LIMITED, supra, heavily discourages. 7.11 After further carefully scrutinizing the grounds of appeal, I am not satisfied that the Plaintiff has shown that there are special circumstances that can move this Court to grant it a stay of execution of the judgment. 7.12 With regard to the issue of whether or not the Plaintiff will suffer irreparable damage if a stay of execution is not granted, I note that the Plaintiff is mainly concerned with this Court's failure to award compensation for the improvements made to the two filling stations. 7.13 Therefore, I am of the view that the Plaintiff would not suffer irreparable damage if it was to succeed with its appeal, because it may well be awarded compensation for the improvements in question. I furtrer hold a considered view that an award of damages can be an adequate remedy in the event that the Plaintiff succeeds with its appeal. Rl6 7.14 For the reasons stated above, the Plaintiffs application for a stay of execution of the Judgment pending appeal is, accordingly, declined. The Ex-pa1e Order of Stay dated 1st April 2025, which I granted the Plaintiff, is in the circumstances, discharged. I order costs against the Plaintiff. 7.15 Leave to appeal is granted. aI)nJ. I DATED AT NDOLA THIS. ........ DAY OF .....~ . .......... 2025. 'l"'' A/ L> <f:V LADY JUSTICE M.C. I'f'IULANDA HIGH COURT JUf GE