IN THE MALAWI SUPREME COURT OF APPEAL

MSCA CIVIL APPEAL NO. 19 of2018

(Being High Court (Lilongwe District Registry) Civil Cause No. 85 of 2017)

BETWEEN

PUMA ENERGY (MALAWI) LIMITED .............. . ...... APPLICANT

AND
BISHOP ABRAHAM SIMAMA . . . . .. ....... .... . .... ... ............. . 1st RESPONDENT

SIMSO OIL AND TRANSPORT COMPANY LIMITED ......... 2nct RESPONDENT

CORAM: Justice Anthony Kamanga, SC, JA

Nkono, SC, of Counsel for the Applicant
Kita of Counsel for the Respondents
Minikwa Official Interpreter

RULING

Justice Anthony Kamanga, SC, JA

1. Introduction

1.1 On 121h April, 2018, the Applicant filed inter-partes summons for an application for
an order of stay of enforcement of the judgment of the High Court (Lilongwe District
Registry) in Civil Cause No. 19 of 2017 delivered on 19th March, 2018. The application is
lodged pursuant to 0. 52. 7 of the CPR and the inherent jurisdiction of this Court. Although
the inter-partes summons does not expressly indicate that the application is being made,
pending the hearing and determination of an appeal against a judgment of the court below,

- from the context and the skeleton arguments of the parties, it is clear that the application is
being made pending the hearing and determination of an appeal in respect of which the
Applicant filed a notice of appeal on 22nd March, 2018.

2. Background

2.1 In order to appreciate the basis of the application for stay of execution of the judgment
of the court below, it is necessary to outline the chronology of events and the relevant facts in
this matter.

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 2.1.1 On 13th June, 2017, the Respondents commenced proceedings in the court below by
originating summons against the Applicant for a declaration that the 1st Respondent was the
owner of Plot Number KK 104 in Nkhota-Kota, and for an order for possession of the
property. On 19111 March, 2018, the court below delivered a judgment in favour of the
Respondents; the court below declared that the 1st Respondent the owner of Plot Number KK
104 in Nkhota-Kota, and granted the Respondents an order for possession of the property.

2.1 .2 After the court below delivered its judgment on 19111 March, 2018, the Applicant made
an oral application in court below for a stay of execution of the judgment, pending the hearing
and determination of an appeal against the judgment. The court below directed the Applicant
to make a formal application. The Applicant, apparently recognizing that enforcement of the
judgment of the court below was imminent, orally applied for an interim order of stay of
enforcement of the judgment of the court below, pending the hearing and determination of the
formal application for stay of the execution of the judgment of the court below. The court
below refused to grant the interim order of stay of enforcement of its judgment.

2.1.3 On 20111 March, 2018, the Respondents applied for and were granted by the court below
an order to enforce the judgment of the court below.

2.1.4 On 2 l51 March, 2018, the Applicant filed in this Court an ex- parte application for an
interim order suspending the enforcement of the judgment of the court below, pending the
hearing and determination of the inter-partes application for a stay execution by the court
below. The Applicant's application in this Court for an interim order suspending the
enforcement of the judgment of the court below was not granted principally because there
was apparently pending hearing and determination in the court below a substantive
application for a stay of the execution of the judgment of the court below.

2.1.5 On 22nct March, 2018, the Applicant filed a notice of appeal, pursuant to section 21 of
the Supreme Court of Appeal Act and 0. III r 2 of the Supreme Court of Appeal Rules, against
the decision of the court below. The grounds of appeal, as set out in the notice of appeal, are
as follows-
" (i) The learned Judge erred in fact and in law by holding that at the date that
Mtunthama Farming Limited subleased to the Defendant property called Plot No.
KK 104 Nkhota-Kotafor 30 years, Mtunthama Farming Limited had no right to
do so when the evidence showed that by a lease from the Malawi Government
dated 281h July, 2013 (Deed No. 86782) prior to the said 30 years sublease dated
3rd October, 2013, (Deed No. 86847) Mtunthama Farming Limited had duly been
granted a 99 year lease by the Government and therefore had the right to grant
the said sublease to the Defendant.
(ii) The learned Judge erred in fact and law by holding that the 30 year sublease
from Mtunthama Farming Limited to the Defendant was not registered under the

- Deeds Registration Act when the evidence showed that the copy of Deed No.
86847 duly contained a memorandum of the Deeds Registrar duly evidencing
registration under section 24 (I) of the Deeds Registration Act.
(iii) The learned Judge erred in fact and in law by holding that Mtunthama
Farming Limited granted the said sublease to the Defendant out ofa 99 year lease
assigned to Mr Timothy Kazombo in 2012 when the evidence showed that
Mtunthama Farming Limited granted the said sublease out of a 99 year lease
dated 281h July, 2013 (Deed No. 86782).

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 (iv) The learned Judge in law by holding the question as irrelevant whether the
claimants proved that the property that Mtunthama Farming Limited assigned to
Mr Timothy Kazombo in 2012 was the same as the one on which the Defendant
operated its filling station when it was precisely the property on which the
Defendant operated a filling station that the claimant sought possession and
ownership.
(v) The learned Judge erred in law to rely in his judgment on the cancellation on
81h May, 201 7, by the Land Registrar/Minister of the 99 year lease held by
Mtunthama Farming Limited, when the learned Judge knew or ought to have
known [that} the High Court, Principal Registry in Judicial Review Case No. 50
of 201 7, on 22nd January, 2018, suspended the effectiveness of the cancellation
by the Land Registrar/Minister on the 99 year lease held by Mtunthama Farming
Limited, pending judicial review.
(vi) The learned Judge erred in fact and in law to find that the Defendant did not
challenge the cancellation of by the Minister of the 99 year lease held by
Mtunthama Farming Limited in light of the said judicial review proceedings.
(vii) The learned Judge erred in law when ordering ownership and possession of
the subject property in favour of the claimants [and} to ignore the effect of the
evidence showing that by an offer dated 13th Arif, 2017, while the Mtunthama
Farming Limited's 99 year lease subsisted the latter offered the subject property
to the Defendant which the Defendant accepted",
and based on the foregoing grounds of appeal, the Applicant seeks the reversal of judgment
of the court below, and an order for judgment in favour of the Applicant.

2.1.6 On 23rd March, 2018 the Applicant filed in the court below a formal application for a
stay of execution of the judgment of the court below, pending the hearing and determination
of the appeal. On 5th April, 2018, the court below dismissed the Applicant's application for
a stay of the execution of the judgment of the court below. The Applicant now comes to this
Court, by its application lodged on 12th April, 2018, for an order to stay or suspend the
execution of the judgment of the court below, pending the hearing and determination of the
appeal against the judgment of the court below.

3. Submissions on behalfofthe Applicant

3.1 During the hearing of this application on 24th April, 2018, Counsel for the Applicant
adopted the sworn statement of Mr McHarven N gwata in support of the application and filed
on 12th April, 2018, (including the sworn statements of Mr Joseph Chafumuka, Mr Happy
Jere and Mr Patrice Nkono, SC, (marked "MN5", "MN6" and "MN7") which were filed in
the court below in relation to an application in that court to stay the enforcement of an
judgment enforcement order issued by the court below on 20th March, 2018), as well as the
skeleton arguments that had been filed on 19th April, 2018 in support of the application.

- 3 .1.1 It is important to observe at the outset that the sworn affidavits in support of the
Applicant's application for a stay or suspension of the judgment of the court below, pending
the hearing and determination of the appeal, appear to premised, to a large extend, on the
assertions, on behalf of the Applicant that "the Applicant has operated a filling station on the
property since the 1970s through successive company name changes"; that "since 2013 under
a 30 year sublease dated 3rd October, 2013 the Applicant has had the possession of the
property as a tenant ofMtunthama Farming Limited"; that "since August, 2015 the Applicant
has operated the filling station on the property through the dealership of Mr Happy Jere";

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 that "the operation of a filling station on the property ... entailed the construction and
installation of [a} purpose-built filling station and equipment including fuel tanks and fuel
pumps, and the forecourt"; and that "the filling station equipment was first constructed by
the Applicant's predecessor company Oil Company of Malawi Limited".

3.2. The gist of the Applicant's arguments and submissions in support of the application to
stay the execution of the judgment of the court below are contained in the following
paragraphs of the sworn statement of Mr MacHarven N gwata filed in support of the
application-

4. THAT the matter was heard by the High Court ... The Court delivered its
judgment on 191h March, 2018 infavour ofthe Respondents and declared that the
1st Respondent is the owner of Plot Number KK 104 in Nkhota-Kota District and
awarded the Respondents possession of the said property. ...
5. THAT upon pronouncing its judgment, my firm made an oral application .. .
for a stay of execution of the judgment pending appeal... the Judge directed that
we should make a formal application. Recognizing that enforcement of the
judgment was imminent, Counsel Msukwa orally applied for an interim order of
stay ofthe judgment, pending the determination ofthe formal application for stay
of execution of the judgment as per the Judge's direction. The Judge refused to
grant the interim order of stay. The Applicant has since filed a notice of appeal
against that judgment ... .. :
6. THAT on 22nd March, 2018, the Applicant was served with an enforcement
order by the lawyers for the Respondents. On the same day 2211d March, 2018, the
sheriff seized and closed the Applicant's filling station located on the property.
Now produced ... are true copies of the Applicant's application for ex-parte and
inter-partes orders for suspension of enforcement filed in court below together
with the sworn statements ofJoseph Chafumuka, Happy Jere and Patrice Nkono,
marked "MN5", "MN6" and "MN7". At hearing of the application herein the
Applicant will rely, among others, on the sworn statements.
7. THAT the application for suspension of enforcement of the judgment was
before Honourable Justice Mkandawire. Upon hearing both parties, the Judge
delivered his ruling on [5tl'j April, 2018, and he refused to grant the order of
suspension ofenforcement. Now produced .. . is a true copy ofthe ruling exhibited
hereto and marked "MN8 ".
8. THAT ... the JS1 Respondent has commenced an action against the Applicant
claiming damages for loss of business and profits due to the latter 's possession
ofthe property. Now produced .. . is a true copy ofthe summons filed in Lilongwe
District Registry marked "MN9 ".
9. THAT I believe that an order for stay ofthejudgment dated 191h March, 2018

-
is necessary in the circumstances so that the Applicant does not suffer injustice
and prejudice in the event that the Applicant 's appeal succeeds. An enforcement
ofthe judgment ... [ of] 191h March, 2018, bears the real potential for prejudicing
the Applicant in ways that could be irreparable. The Applicant runs a full
petroleum filling station on the property, which filling station was, as was in
evidence in the within proceedings, constructed by the Applicant 's predecessor
Oil Company of Malawi Limited in the 1970s. Any avoidable removal of the
Applicant from the property would therefore cause untold injustice and prejudice
to the applicant, should the appeal succeed. ".

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 3 .2.1 The sworn statement of Mr Joseph Chafumuka, an employee of the Applicant, in so
far as it is relevant to this application for a stay of execution of the judgment of the court
below, among other things, states that-
"6. The Defendant has had ... the possession of the subject property since the
1970s when Oil Company of Malawi Limited, a predecessor of the Defendant,
constructed thereon a filling station and first used the subject property to operate
thereon the business of a filling station. On the contrary, the claimant's do not
operate a business on the said property, let alone a filling station business.
7. The subject property has located thereon, as part ofthe Defendant's business,
moveable property including underground fuel tanks, filling station fore court
and the Defendant's or the Defendant's branded fuel dispensing pumps and not
forming part of the land nor ever owned by the Defendant's successive landlords
on the property.
8. The enforcement ofthe judgment ofthe court would therefore necessarily entail
the removal by the Defendant of all such moveable property as part of vacating
the property. Such removal of the property would not only cost the Defendant in
money terms and time, but also fundamentally change the structure of the
premises.

I 0. The business of the Defendant is not uniform in the sense that even though
information can be given regarding average annual revenues, the exact annual
revenues vary from season to season and year to year depending on the country's
GDP performance, product pricing by the Government and other trade area
activities including political and economic ones. Where, as in the present case, a
filling station is operated by a dealer, sales performance is also affected by the
dealer's operational efficiency and working capital capacity.
11. It is therefore difficult to say for sure how much in revenues that the Defendant
would lose at any given time in the event of a business disruption. What is for
sure is that the enforcement ofthe judgment would cause considerable loss to the
Defendant and the business.

14. If the judgment herein is allowed to be enforced and the Defendant succeeds
in its appeal that will have the effect of gravely disrupting the Defendant's long
running business ofthe filling station on the subject property. Further, in view of
business variables that account for the generation of revenue the Defendant 's
business on the subject property, even if the circumstances were such that the
claimants would be made liable to compensate the Defendant for loss ofrevenue
in the interim if the appeal succeeds... ... ... it would be practically impossible to
assess and calculate the loss that the Defendant would in that eventuality suffer.

-
16. There is clearly much more inconvenience to be caused to the Defendant if
the judgment is enforced and the appeal is later decided in favour of the
Defendant than to the claimants if the appeal fails . ... ".

3 .2 .2 In his sworn statement which was filed in court below in support of the
Applicant's application to stay or suspend the enforcement of the judgment
enforcement order issued by the court below on 20 1h March, 2018, Mr Patrice
Nkono, SC depones as follows-

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 "2. THAT on the morning of 2rd March, 2018, our client, the
Defendant herein, forwarded to my firm a copy of the enforcement
order that had been issued ... at the instance of the Claimants in these
proceedings and informed my firm ... that the enforcement order had
just been served on the Defendant then. I attach hereto a copy of the
Enforcement Order marked "PNl ".
3. THAT within an hour of my firm's receipt of the Enforcement Order
from our client, I received a telephone message call from Mr Chafuka.
Sales and Marketing for the Defendant, informing me that a sheriff
officer had reportedly arrived at the Defendant's filling station in
Nkhota-Kota, subject of the proceedings herein, to enforce the
Enforcement Order.
4. THAT I immediately called Mr Wapona Kita of the lawyers for the
Claimants to query such news with him. When he did not pick my call,
I sent him a whatsapp message to his phone number at 10.51 am on
2rd March, 2018 that read "Good morning Wapona. I was calling Re:
Simama and Puma. My clients tell me that this morning they were
served with an enforcement order but also that apparently there is an
attempt to enforce the order of possession at the filling station. If so,
that would be highly irregular per Order 28 rule 40 of the High Court
CPR that says the enfor·c ement order shall not be enforced until 30
days after the display of the order at the premises and at the latest the
date of the service of the enforcement order. So the earliest day for
enforcement would be 2rd April, 2018. Please call back and in any
event call off the enforcement".
5. While I waited response from Mr Kita, I called and spoke by phone to Mr Peter
Mfauzi, the Under Sheriff of Malawi, and informed him of what appeared to me
to be an irregular attempt at enforcement ofa court order at his office. Mr Mfauzi
sent me a message at 11.35 am on 22nd March, 2018 that read "Thanks counsel.
I got in touch with Sheriff Mwale. He has told me that he has already closed the
premises and has left".

6. THAT indeed Mr Happy Jere, the Defendant's dealer on the subject filling
station later called me by phone ... that the Sheriff Officer, Mr E W Mwale, had
gone to the subject filling station on the morning of 22nd March, 2018
accompanied by Police Officers, closed the filling station in enforcement of the
court order ofenforcement.

7. THAT at 11.24 am on 22nd March, 2018, Mr Kita responded to my message by

- whatsapp and said "my client has not taken possession of the filling station and
will only do so after 30 days. The sheriffhas simply effected service of the order
per the rules. Sorry am in court now".

8. THAT clearly Mr Kita agreed with me that the Claimants have no right to seek
to enforce the order until after 30 days from the date ofservice thereof However,
it appears that the Sheriff Officer Mr E W Mwale, had been given wrong
information and instructions as he had clearly enforced the order by shutting
down the filling station and throwing the Defendant's agent off it.

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 9. THAT in view ofthe fact that the sheriffhas enforced the order and closed the
filling station (despite the irregularity of such action) it has become urgent that
this application be made without notice in order to forestall the fact that each
hour that the filling station remains closed, the Defendant is suffering loss of
business and revenue.

I 0. WHEREFORE I pray for an order suspending enforcement of the order of

possession until the court determines the Defendant's application at the
expiration of 30 days from 22nd April, 2018.

11. FURTHER I pray that now that the Defendant has filed its application for
suspension of the enforcement of the judgment of the court dated 19th March,
2018, the court extend the suspension of the judgment until its determination of
the Defendant's application for suspension of the enforcement ofjudgment if the
same happens after 22nd April, 2018. ... "

3.2.3 The sworn statement of Mr Happy Jere is to the effect that on 22nct March,
2018 , pursuant to an enforcement order of the court below, the sheriff sealed the
filling station which remains closed, and the Applicant is suffering loss of
business and revenue.
3.3 In the skeleton arguments adopted during the hearing of this application on 24th April,
2014, the Applicant advances the following arguments and submissions-

3 .3 1 With respect to the judgment enforcement order issued on 20th March, 2018, for
possession of land, the Applicant argues and submits that having regard to Order 28 rule 37
to 40 inclusive of the High Court Civil Procedure Rules, 2017 there was a clear flouting of
rule 40 by the Respondents which rendered the enforcement of the judgment enforcement
order irregular and unlawful; that the irregular and unlawful enforcement of the judgment
enforcement order is an actionable trespass on the part of the Respondents against the
Applicant who is losing revenue with every day that this unlawful action of the Respondents
continues. The Applicant, accordingly, prays that the enforcement of the judgment
enforcement order be set aside and an order be made by this Court ending that unlawful
enforcement and ordering the handover of the property back to the Applicant.

3.3 .2 With respect to whether the application for a stay or suspension of execution of the
judgment of the court below should be granted, the Applicant, in his skeleton arguments, has
referred this Court to the principles that govern applications for suspension or stay of
enforcement of judgment, pending appeal, and has cited a considerable number of useful case
authorities. However, the gist of the Applicant's arguments and submissions are premised on

- two principal issues, namely, that the appeal raises serious issues to be heard and determined
by the Supreme Court of Appeal; and that, unless the judgment of the court below is stayed
or suspended, the Applicant would suffer irreparable damage; and that, having regard to the
circumstances of this case, the "balance of convenience is in favour of granting a stay or
suspension of the judgment of the court below, pending the hearing and determination of the
appeal.
3.3.2.1 The Applicant argues and submits it has filed a meritorious set of grounds of appeal
against the judgment of the court below for determination by the Supreme Court of Appeal;

7
 that the grounds of appeal show a serious challenge has been set, on principle, against the
judgment of the court below; and that there are serious questions to be brought to the appeal.
3.3.2.2 The Applicant also argues and submits that sworn statement of Joseph Chafumuka
shows that "the Applicant has achieved average annual revenues of Kl,100,155,158 for the
year 2016 and 2017 from the running of the filling station on the property, and upwards of
K850,000,000 per annum for the 5 years 2013 to 2017"; that "if the enforcement order [and
the judgment of the court below] is allowed to stand and the Applicant succeeds in its appeal,
the Applicant stands to lose such sums of money, and probably more",· that "since the
Respondents' possession of the property would have been allowed by the judgment of the
court below, the Respondents' possession ofthe property would be lawful and, therefore, not
entitle the Applicant to any damages against the Respondents ... , even if the appeal
succeeds"; that, "even assuming that the Respondents had the capacity to pay such sums of
money, the Applicant would have lost such revenues without any right to claim the same from
... the Respondents"; and that, "therefore, the Applicant would suffer irreparable damage".
In support of the latter argument and submission the Applicant cites as authority [and by way
of analogy] the case of Thompson v Attorney General ofJamaica and another Claim No. 2007
HCV 03684 (in the Supreme Court of Judicature of Jamaica) where it was held that once a
subject was held in custody pursuant to a court order no action or damages for false
imprisonment could be claimed even where the initial custody was attributable to a false
imprisonment.

3.3.2.3 The Applicant further argues and submits that "the Respondents have not even set up
a business on the property"; that "if the Applicant's appeal fails and in the interim the
enforcement order was suspended/stayed, the Respondents ' loss, ifany, would be much easier
to assess and would arguably be claimable from the Applicant",· and that "although the
Applicant would suffer irreparable damage if the enforcement order is allowed to stand and
the appeal succeeds, no such problem applies to the Respondents even if the Applicant's
appeal failed'.

3.3.2.4 Finally, the Applicant states that, at common law, a tenant is allowed to remove any
chattel notwithstanding that it has become a fixture to land, provided that it is a trade fixture,
and the Applicant cites as authority: Elliott v Bishop (1854) 10 Ex Ch 496, where a tenant was
allowed to remove fittings of a public house; Wardell v Usher ( 1841 )3 Scott NR 508, where
shrubs planted by a market gardener were allowed to be removed; Smith v City Petroleum Co.
Ltd [1940] 1 All ER 260 where petrol pumps at a filling station were allowed to be removed;
and Young v Dalgety pie [1987] 1 EGLR 116, where fluorescent light fittings and carpeting
secured to the floor by gripping rods were allowed to be removed. Based on the cited case
authorities, the Applicant argues and submits that "the fact that the filling station holds
tenant's fixtures and equipment that belongs to the Applicant, the Applicant's vacating the
property would entail removal of the moveable property comprising the filling station,· that

- "if the appeal succeeds, the Applicant would, in vain, have been put to grave inconvenience
of removing property from the filling station to let the Respondents go into possession ",· and
that "if the appeal succeeds, the Applicant would be put to the trouble of installing the filling
station equipment all over again having removed it in circumstances that would not entitle
the Applicant to any compensation .. . "from the Respondents. It is argued and submitted that
these consequential "inconveniences and incompensable losses do not apply to the
Respondents".

3.3.2.5 The Applicant argues and submits that "the enforcement of the judgment ... would
pose the risk of injustice and prejudice to the Applicant if the appeal later succeeds in a

8
 manner that would not apply to the Respondents if the appeal fails and the enforcement ofthe
judgment is suspended in the interim"; and that "the balance of convenience, therefore, lies
in favour ofsuspending or staying enforcement of the judgment pending appeal".

3 .4 Based on the foregoing arguments and submissions the Applicant prays that an order
be made to set aside and/or suspend the Respondents' unlawful and irregular enforcement of
the judgment enforcement order against the Applicant on 22°d March, 2018 and, in any event,
an order for a stay or suspension of the judgment of the court below, pending the hearing and
determination of the appeal.

4. Respondents' sworn statement in opposition and submissions on behalf of the

Respondents

4.1 During the hearing of this application on 24th April, 2018, Counsel for the Respondents
adopted the sworn statement in opposition filed on 18th April, 2018, and the skeleton
arguments filed on 23rd April, 2018. The Respondents' response in opposition to the
application is contained in the following paragraphs of the sworn affidavit of Mr Kita-
" 4. THAT the general or normal rule in this Court when approached with an
application for stay is for no stay unless the [Applicant] puts forward a solid
ground to show irremediable harm if no stay is granted.
5. THAT ... paragraphs I to 8 of McHarven Ngwata sworn statement in support
ofthe application for stay.:. give a historical background ofthe [Applicant] and
of this matter and do not show at all any kind irremediable harm that the
Appellant will suffer should a stay not be granted in these proceedings.
6. THAT it is only in the last substantive paragraph, i.e paragraph 9 of the
McHarven Ngwata sworn statement where he attempts to show that the
[Applicant] will suffer injustice because it constructed and has been running the
filling station since the 1970s.
7. THAT ... no where in the sworn statement of McHavern Ngwata does it show
that the [Applicant] or any of its predecessors constructed the Nkhota-kota
Filling Station. Rather, all that the sworn statement shows is the transition the
Appellant has gone through, from being Oil Company ofMalawi Ltd, to being to
BP Malawi Ltd to being Puma Energy (Malawi) Ltd. In fact, Lease Agreement
marked JC 7 appearing as part of Exhibit MN 2 shows that the [Applicant's]
predecessors were renting from Chayamba Holdings Ltd was the Nkhota-Kota
Filling Station itself and not that the same was constructed by the [Applicant's}
predecessors.
8. THAT whichever way one looks at it, the issue of who constructed the filling
station cannot be a ground for granting a stay. That is an issue of handovers
which the [Applicant] has not attempted to reach out to the Respondents during

- the 30 day window period for gaining possession of the KK I 04.

9. THAT ... ... the [Applicant] has not demonstrated anywhere in its affidavit that
the Respondents would not be able to compensate them in damages in the event
of their appeal succeeding should they give up possession of the Filling Station
now as ordered by the Judge in the lower court.
JO. THAT the only injustice that the [Applicant] stands to suffer for now with the
[RespondentsJ gaining possession ofthe Filling Station is the loss ofrevenue, but
this is the kind of loss which reparable as the Supreme Court [of Appeal] would
be in a position to order that the [Applicant} be compensated accordingly for his
loss if his appeal succeeds.

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 11. THAT from the foregoing, it is clear that the [Applicant] has not shown any
solid ground why a stay should be granted in this matter and the application
should be dismissed accordingly.
12. THAT it is also a fundamental guiding principle ofthis Court when faced with
an application for a stay that the Appellate authorities will not reverse the order
of the lower court refusing the grant of a stay merely because they would
themselves have exercised the original discretion had it attached to them in a
different way. The onus is on the [Applicant] to show how the lower court wrongly
exercised its discretion.
13. THAT I refer to paragraph 7 of McHavern Ngwata ['s]sworn statement and
aver that in it he exhibits a copy of the Ruling of the lower court that refused to
grant it an order ofstay marked as Exhibit MN 8.]???
14. THAT nowhere in his sworn statement does the deponent attempt to show how
Justice Mkandawire exercised his discretion wrongly in refusing to grant them
the order ofstay.
15. THAT it was incumbent on the [Applicant] to show how Justice Mkandawire
had wrongly exercised his discretion because when they first applied before this
Court for an ex parte order ofstay, the same was refused, inter alia, on the ground
that they had to await the outcome of the decision of Mkandawire Jin the lower
court.
16. THAT ...... I have read the Ruling of Justice Mkandawire refusing the
Appellant a stay and I.find it to be well reasoned andfollows the principles oflaw
governing a stay especially where he makes a finding that there is no irreparable
harm or injustice to be suffered by the [Applicant] in giving up possession ofthe
Filling Station and that the [Respondents} would be in a position to compensate
the [Applicant] in the event ofa successful appeal.
17. THAT I am also instructed by the 1st Respondent to depone herein that he
undertakes to compensate the [Applicant] in the event oftheir appeal succeeding
but that in the meantime, he wants to enjoy the fruits of his litigation which is to
gain possession of Plot No: KKl 04 in Nkhota-Kota District as ordered by the
Court.
18. THAT I further observe that the [Applicant] has failed to comply with the
Practice Direction of this Court in that he has failed to file and serve skeleton
arguments in support of their application for stay.
19. THAT furthermore, the Notice ofAppeal.filed by the [Applicant] is irregular
in that it is not accompanied by any skeleton arguments as is strictly required by
Practice Direction 52PD.21 of the Civil Procedure Rules applicable in this
Court. Therefore, the mere filing of a Notice of Appeal should be treated as
inconsequential in so far as it relates to application for stay herein.
20. THAT in view of the foregoing, the Respondents pray to the Court to dismiss

- 4.2
the [Applicant'sJ application for stay, having failed to show any solid ground
why the same should be granted in the first place . ... ".

The Respondents' skeleton arguments revolve around the issue whether a stay of the
execution of the judgment of the court below should be granted, and may summarized as
follows-

4.2.1 That it is clear from paragraph 7 of the Applicant's sworn statement in support of the
application for stay the application that this is not a fresh application; that the Applicant made

10
 the same application before the court below which was dismissed in its reasoned Ruling of 5th
of April, 2018.

4.2.2 That this Court should handle the Applicant's application for a stay of execution of
the judgment of the court in the manner stated in the case of Malawi Communications
Regulatory Authority vs Joy Radio (MSCA No. 59 of 2009) where Mtambo, JA restated the
law to be as follows-
" .. . The question whether or not to grant a stay in entirely in the discretion ofthe
court (Attorney General vs Emerson 24 QBD 56 pp. 58-59). And it is not a new
principle oflaw that a superior court will have regard to the discretion ofa lower
court and will not overrule the order of the lower court unless there has been a
disregard ofprinciple or misapprehension offacts- Youngvs Thomas (1892) Ch.
D I 43, per Bowen L.J Although the application before me is not an appeal, the
above principle would, nonetheless, be relevant, mutatis mutandis; I can put it
(the principle) no better than was put in the case of Charles Osenton and Co. v
Johnston (1941) 2 All ER 245 thus:
"The law as to the reversal by a Court ofAppeal ofan Order made by the
judge below in the exercise of his discretion is well established, and any
difficult which arises is due only to the application of well settled
principles in an individual case. The appellate tribunal is not at liberty
merely to substitute its own exercise of discretion for the discretion
already by the Judge. · Jn other words, appellate authorities ought not to
reverse the order merely because they would themselves have exercised
the original discretion, had it attached to them a different way. If,
however, the appellate tribunal reaches the clear conclusion that there
has been a wrongful exercise of discretion, in that no weight, or no
sufficient weight, has been given to relevant considerations, ... then the
reversal of the order on appeal may be justified. "

4.2.3 That based on the decision in Malawi Communications Regulatory Authority vs Joy
Radio Counsel for the Respondents urges this Court to have regard to the decision of the court
below and not "overrule the order of the court below unless there has been a disregard of
principle or misapprehension offacts"; and Counsel for the Respondents referred this Court
to page 4 to 5 of the ruling of the court below dismissing the Applicant's application for a stay
of the execution of the judgment of the court below, where court below stated as follows-
"Jn listening to the defendant, the real fears they have is the loss ofrevenue that
they will incur if judgment is enforced. On the other side the plaintiff is also
having the same fears as he has been prevented from using the filling station
which he purchased as both parties are in commercial business. The defendant
however, thinks that it has more to lose as far as business in concerned and that
it may have an uphill task to recoup its loss if suspension is not granted. Having

- given the case the best ofits scrutiny, I am not persuaded to suspend my judgment.
I take the view that the plaintiff would be in a position to compensate the
defendant in the event that the appeal succeeds. Having considered the risk of
injustice or prejudice, I am ofthe view that the plaintiffwho has bought this land
unlike the defendant who is a mere tenant is entitled to enjoy the fruits of his
litigation".

4.2.4 Counsel for the Respondents argues and submits that from the sworn statement by the
Applicant's legal Counsel, there is no single fact or principle which is faulted to have been

11
 misapprehended by the court below in refusing the application for stay; that there is no attempt
to by the Applicant to discuss the content of the Ruling by the court below [and fault the court
below; and that based on the principle in Malawi Communications Regulatory Authority v Joy
Radio there is no material before this Court to exercise its discretion differently than the court
below did.

4.3 With respect to the principles which this Court should follow when exercising its
discretion whether to grant or not to grant an order of stay of execution of a judgment, Counsel
for Respondents argues and submits that the Applicant's application has been made under
Part 52.7 of the Civil Procedure Rules which provides the current guiding principles for
granting or not granting a stay; that the general approach stated in Practice Note 52.7.1
provides that: the established the principle is that successful litigants should not be deprived
of the fruits of their litigation pending appeal, unless there are good reasons for doing so; that
"the normal rule is for no stay ... ", and Counsel for the Respondents cites Potter L.J. in
Leicester Circuits Ltd v Coates Brothers Pie (2002) EWCA Civ 472 at p13 . Counsel for the
Respondents also cites DEFRA v Downs (2009) EWCA Civ 257 at pp. 8-9 where Sullivan
L.J., having noted that a stay is an exception rather than the rule, stated that the "solid ground"
which an applicant must put forward is normally "some form of irremediable harm if no stay
is granted'.

4.3.1 Counsel for the Respondent argues and submits that if an applicant puts forward solid
grounds for seeking a stay, the court must then consider all the circumstances of the case;
and it must weigh up the risks inherent in the granting of the stay and the risks in refusing a
stay, and Counsel cites Hammond Suddard Solicitors v Agrichem International Holdings Ltd
(2001) EWCA Civ 2065, where Clarke L.J. described the correct approach as follows-

"Whether the court should exercise its discretion to grant a stay will depend upon
all the circumstances of the case, but the essential question is whether there is a
risk of injustice to one or both parties if it grants or refuses a stay. In particular,
if a stay is refused, what are the risks of the appeal being stifled? If a stay is
granted and the appeal fails, what are the risks ofthe respondent being unable to
enforce the Judgment? On the other hand, if a stay is refused and the appeal
succeeds, and the judgment is enforced in the meantime, what are the risks ofthe
appellant being able to recover any monies paid from the Respondent?

4.3.2 Counsel for the Respondents thus argues and submits that in the matter at hand, this
Court has to ask itself the following question, if a stay is refused and the appeal succeeds,
and the judgment is enforced in the meantime, what are the risks of the Applicant being able
to recover any revenue lost; that the answer to that is a simple one - lost revenue can be
computed and the 1st Respondent, who is a man of means, has undertaken to compensate the

- Applicant for any loss if the appeal succeeds; but that in the meantime, the Respondent wants
to enjoy the fruits of his litigation which is gaining possession of Title No: KK 104 in Nkhota-
Kota district. In support of this argument and submission Counsel for the Respondents cites
the following case authorities-

The Minister ofFinance and The Secretary to the Treasury- Exparte Hon. Bazuka
Mhango MP and Others (MSCA No: 17 of2009) where held Mtambo, JA that-

" ... My understating of these principles is that a successful litigant may not be
deprived of the fruits of his litigation without a good reason and that normally

12
 the only good reason to do so is when it appeal to the court that there are no
reasonable prospects of recovering the money if the event that the appeal
succeeds. The Justness of this is in the fact that while it is the duty ofthe court to
see to it that a successful litigant should access the fruits of his litigation as
quickly as possible, it is also the court's duty that it does not come about that a
successful appeal is (not) rendered nugatory. And in order for the court to be able
to determine whether or not an appeal, ifsuccessful, would be nugatory by reason
that there is no reasonable probability of the appellant, getting the money back,
is a matter ofa facts which must be presented to the court for assessment... ".

The State v Speaker of National Assembly, Ex parte John Tembo (Civil Appeal
No: 27 of 2010) where held by Nyirenda, JA that-
"Stay of execution pending appeal has become common place in our court and
over the years clear principles for consideration have emerged. The guiding
principles however are in Order 59 r. 13/1 of the Rules of the Supreme Court.
That Order cites a number of cases specifically dealing with stay of execution of
judgments. Some of the cases have been referred to by Counsel in this matter
from which the following cardinal principles resonate:
(i) the Court does not make the practice of depriving a successful litigant
fruits ofhis judgment;
(ii) the Court should then consider whether there are special circumstances
which militate in favour ofgranting the order for stay and the onus will be on
the applicant to prove or show such special circumstances;
(iii) where the appeal is against an award ofdamages the established practice
is that stay will normally be granted where the appellant satisfies the court
that if the damages were paid then there will be no reasonable prospect of
recovering them in the event of the appeal succeeding.
Fortunately for me from the skeleton arguments by Counsel it is apparent that we
are all conversant with the practical application of these principles. It is
emphasized in Ulalo Capital Investment Limited Vs Southern Africa Enterprise
Development Funding, MSCA, Civil Appeal No. 45 of 2009 that when
determining an application for stay of execution it is important to bear in mind
always that there is at the time a binding Judgment which even the Court of
Appeal must respect until set aside or otherwise modified. In City ofBlantyre Vs
Manda and Others Civil Cause No. 1131 of 1990 the court summarized the
principles in this passage:
I think it is always proper for the Court to start from the view point that a
successful litigant ought not to be deprived of the fruits of his litigation.
The Court should then consider whether there are special circumstances
which militate in favour of granting the Order of Stay and the onus will

-
be on the applicant to prove or show such special circumstances.
As for special circumstances it is trite that such would vary from case to
case and expectedly so. Furthermore the same set offacts could result in
different consequences and have different implications in different cases.
It has long been acknowledged though that the paramount consideration
in applications of this nature is whether the appeal will be rendered
nugatory ifthe application for stay is refused. Once the Court is satisfied
that the appeal will not be rendered nugatory by refusing the application
to stay the Judgment, it would be wrong to deny the successful litigant the
fruits of his litigation on any other fanciful land capricious

13
 considerations, see: Tembo v Industrial Development Group (2) [1993]
16 (2) MLR 878. The justness of this is in the fact that while it is the duty
of the court to see to it that a successful litigant should access the fruits
ofthis litigation as quickly as possible, it is also the court 's duty to ensure
that it does not come about that a successful appeal is rendered nugatory.
The Minister ofFinance and The Secretary to the Treasury v Hon. Bazuka
Mhango and Others, MSCA Civil Appeal No. 17 of 2009.
This Court attempted to explain what could possibly amount to an appeal being
nugatory in Auction Holdings Limited v Sangwani Judge Hara and Others MSCA
Civil Appeal No. 69 of 2009. It is stated:
According to Bryan Garmer in "A Dictionary of Modern Legal Usage"
Second Edition, 'nugatory' is not a legal word per se, but it is learned
word favoured by lawyers. It means 'of no force, useless, invalid and so
forth. In other words nugatory is a state of affairs. A state of affairs
where the appeal will not yield results; where the appellants efforts, even
if successful, will be a wasted effort for lack ofremedy. Pursuant to these
considerations, as the court put it in Circle Plumbing Ltd vs Taula [1993]
(16) 2 MLR 506 an appeal can only be rendered nugatory iffor example
the subject matter ofthe appeal is destroyed or ceases to exist or changes
substantially or where if the appeal succeeds it would be impossible to
recover the damages that would be sought. The real question for the court
is whether the appellant will engage is an exercise in futility. "".

4.3.3 It is submitted that in the matter at hand, there is no evidence to suggest that the
Applicant would not be able to recover from the Respondents its lost revenue if the appeal
succeeds; that the court below in refusing the Applicant an order of stay already found that
the Respondents are able compensate the Applicant in the event of a successful appeal. In
support of this submission Counsel for Respondent cites Nkhukuti Beach Resort v Patrick
Thomas Mwafulirwa and others (MSCA No. 65 of2009) where Nyirenda, JA, on the issue of
the Respondent being unable to pay back the money if the appeal succeeds, held as follows-

"In Thomson v CGU Insurance Ltd (MSCA No. 17 of2008) Mtambo JA observed
that if the contention is that the appeal, if successful, may be rendered nugatory
in that there is no reasonable prospect of recovering the money because the
Respondent has no means, it is for the appellant to present to court, facts and
evidence for assessment. Indeed, even upon such facts and evidence, the court
may still decline stay if that would be utterly un;ust to the Respondent: see the
case ofStambuli v Admarc, Civil Cause No. 550 of 1981) ".

5. Whether: (i) the ;udgment enforcement order should be stayed or suspended and aothe

- judgment of the court below should be stayed or suspended, pending the hearing and
determination ofthe appeal
5.1 Before I proceed to further consider this matter, it is important to resolve the issue of
whether the Applicant, in effect, seeks two orders from this Court, namely, an order to set
aside and/or suspend the Respondents' alleged unlawful and irregular enforcement of the
judgment enforcement order against the Applicant on 22nd March, 2018, and an order for a
stay or suspension of the judgment of the court below, pending the hearing and determination
of the appeal; and if so, whether this application this Court should consider granting the two
orders.

14
 Order to stay or suspend the iudgment enforcement order o(the court below

5.2 The inter-partes summons filed by the Applicant on 12th April, 2018 and the supporting
sworn statement of Mr McHarven Ngwata dated 121h April, 2018, both indicate that the
Applicant seeks an order for a stay or suspension of the judgment of the court below, pending
the hearing and determination of the appeal. However, the Applicant, through the sworn
statement of Mr McHarven Ngwata, has also incorporated or introduced in these proceedings
the sworn statements of Mr Joseph Chafumuka, Mr Happy Jere Mr Patrice Nkono, SC.

5.2.1 The sworn statements of Mr Joseph Chafumuka dated 23rd March, 2018 (marked
"MN5"), Mr Happy Jere dated 27th March, 2018 (marked "MN6") and Mr Patrice Nkono, SC
dated 23rd March, 2018 (marked "MN7") were tendered in court below in support of an
application in that court to stay or suspend the enforcement of the judgment enforcement order
of the court below issued on 20111 March, 2018, in respect of which the Applicant argued and
submitted that the action of the Sheriff on the 22 11 d March, 2018, turning the Applicant's agent
out of the property as a clear flouting of Order 28 rule 40 Court (Civil Procedure) Rules, 2017
which rendered that action irregular and unlawful and, in respect of which the Applicant prays
that the enforcement be set aside and that an order be made by this Court ending that unlawful
enforcement and ordering the handover of the property back to the Applicant.

5.2.2 There is yet another dimension to this issue: In paragraph 7 of his sworn statement in
support of this application Mr McHarven Ngwata states that "the application for suspension
of enforcement of the judgment was before Honourable Justice Mkandawire. Upon hearing
both parties, the Judge delivered his ruling on {5 1h} April, 2018, and he refused to grant the
order of suspension of enforcement. Now produced ... is a true copy of the ruling exhibited
hereto and marked "MN8 ". Counsel for the Respondents in paragraphs 13 and 14 of his sworn
statement in opposition to the application has taken issue with the substance of paragragh 7
of Mr Ngwata sworn statement and states that "nowhere in his sworn statement does Mr
Ngwata attempt to show how Justice Mkandawire exercised his discretion wrongly in refusing
to grant them the order of stay" in relation to the application for a stay of the enforcement
order.

5.2.2.1 The position taken by the court below in relation to the application for a stay of the
judgment enforcement order, as reflected on pages 2-3 of the Ruling of the court on 5th April,
2018, is as follows-

" ... The issue therefore is whether the Sheriffhas enforced the enforcement order
before the expiry ofthe 30 days as prescribed by rule 40. According to the Court
Order, execution of the enforcement would be deemed done once the Sheriff has
delivered possession of the plot to the plaintiffs. The same enforcement order

- commands the Sheriff to appear to the court immediately after execution thereof
The Sheriff has not yet appeared to the court a sign that the execution has not yet
been done. In arguing its case so passionately, the defendant has put heavy
reliance on the note that the Sheriff ... had left with the Site Manager at Nkhota-
Kota filling station which note they say in the affidavit of Happy Jere is marked
HJ2. I note that there is no exhibit attached to the sworn statement ofHappy Jere.
What I see is a document purportedly written by Mr E W Mwale which has three
stamp images of the Sheriff of Malawi. This document with no exhibit identity is
a photocopy and it is not even certified by a Commissioner of Oaths as are other
documents such as HJ] and HJ3 attached to the same sworn statement of Happy

15
 Jere. This unidentified document and uncertified document is the same that the
defendant would like this court to rely on. I have serious problems in accepting
such a document especially where the contents of the same document are under
serious challenge by the plaintiff I say so because going through the sworn
statement ofMr Kita it is vividly clear that the plaintiff is denying the fact that he
has taken possession ofthe property. Whilst the Sheriffmight, indeed have closed
the filling station, ... I am not satisfied that the plaintiff has taken possession of
the filling station therefore the enforcement order is not yet enforced hence we
cannot be talking of an irregular enforcement. The defendant has already
threatened that there has been trespass to its property and ifthat is the case, then
the defendant is at liberty to pursue that avenue and the plaintiff and the Sheriff
will bear responsibility in the event that the defendant succeeds. I therefore have
no solid ground on which to pronounce that there has been an irregular
enforcement of the court's order. ".

5.2.2.2 It should be noted that the concerns raised by the court below regarding the document
purportedly written by Mr E W Mwale which has three stamp images of the Sheriff of Malawi;
the photocopy document with no exhibit identity and not certified by a Commissioner of Oaths
as are other documents such as HJl and HJ3 attached to the same sworn statement of Happy
Jere, which the Applicant wanted the court below to rely on have not been addressed in this
application. The Applicant has filed, in support of this application, the same sworn statement
of Mr Happy Jere with the same omissions in relation to the note left by the Sheriff at the
filling station in Nkhota-Kota on 22nd March, 2018. Although paragraph 3 of Mr Happy Jere's
sworn statement refers "to a note that the sheriff officer left at the filling station ... hereto
attached and "HJ2", there is no such document marked "HJ2" and properly authenticated by
a Commissioner of Oaths".

5.2.3 It does not appear to me that there is properly before this Court any application for an
order for a stay or suspension of the judgment enforcement order of the court below dated 201h
March, 2018, and the Applicant's arguments and submissions relating thereto summarized in
paragraph 3.3.1 are misconceived. It is clear that the inter-partes summons filed on 12th April,
2018, and the supporting sworn statement of Mr McHarven Ngwata both refer only to an order
for a stay or suspension of the judgment of the court below, pending the hearing and
determination of the appeal; by incorporating wholesale in these proceedings the sworn
statements used in the court below in support of the application for a stay or suspension of the
judgment enforcement order, the Applicant, perhaps, unwittingly or inadvertently, also
introduced in these proceedings an application for an order for the stay or suspension of the
judgment enforcement order. The Applicant should not have incorporated wholesale in these
proceedings the sworn statements used in the court below in support of the application for a
stay or suspension of the judgment enforcement order when in these proceedings the
Applicant seeks only an order for the stay or suspension of the execution of the judgment of

- the court below delivered on 19th March, 2018. These proceedings are not about an appeal
against the decision of the court below in relation to its decision to refuse to grant any of the
orders of stay sought by the Applicant; these proceedings are a fresh application by the
Applicant for a stay of the judgment of the court below, pending the hearing and determination
of the appeal.

5.2.4 In any event, in relation to the judgment enforcement order, it does not appear to me
that the court below "refused to grant the order for suspension" of the judgment enforcement
order as asserted in paragraph 7 of the sworn statement of Mr McHarven Ngwata. After

16
 meticulously considering Order 28 rules 37 to 40 of the High Court (Civil Procedure) Rules,
2017, and also, the apparent lapses in the preparation of the sworn statement of Mr Happy
Jere, the court below was " ... not satisfied that the plaintiffhas taken possession ofthe filling
station therefore the enforcement order is not yet enforced hence we cannot be talking of an
irregular enforcement", and there was " ... therefore have no solid ground on which to
pronounce that there has been an irregular enforcement of the court's order. ". It seems to
me that the court below decisively pronounced on the issue relating to the enforcement of the
judgment enforcement order; if it accepted that the Respondents had not taken possession of
the filling station; and that the enforcement order was not yet enforced and, therefore, there
was no irregular enforcement of the order, then perhaps, as suggested by the court below, the
Applicant who thinks that there has been trespass to its property, is at liberty to pursue that
avenue against the Respondents and/or the Sheriff who will bear responsibility in the event
that the Applicant succeeds.

5.2.6 Notwithstanding my determination of the Applicant's application for an order of stay

of the execution of the judgment of the court below, pending the hearing and determination
of the appeal, I am not inclined to further consider the Applicant's application for an order for
a stay or suspension of the judgment enforcement order of the court below.

Order to stay or suspend the iudgment of the court below, pending the hearing and
determination ofthe appeal

5.3 With respect to the application for the order to stay or suspend the judgment of the court
below, pending the hearing and determination of the appeal, the gist of the Applicant's
arguments and submissions are premised on two principal issues, namely, that the appeal
raises serious issues to be heard and determined by the Supreme Court of Appeal; and that,
unless the judgment of the court below is stayed or suspended, the Applicant would suffer
irreparable damage and that, having regard to the facts of this case, the "balance of
convenience is in favour of granting a stay or suspension of the judgment of the court below,
pending the hearing and determination of the appeal.

5.3.1 With respect to the first issue, the Applicant argues and submits that the seven grounds
of appeal set out in the notice of appeal show a serious challenge has been set against the
judgment of the court below; and that there are serious questions to be brought to the appeal,
As observed in paragraph 3.1.1, the sworn affidavits in support of the Applicant's application
appear to premised to a large extend on the assertions, on behalf of the Applicant, that the
Applicant has operated a filling station on the property since the 1970s through successive
company name changes; that since August, 2015 the Applicant has operated the filling station
on the property through the dealership of Mr Happy Jere; that since 2013 under a 30 year
sublease dated 3rd October, 2013 the Applicant has had the possession of the property as a

-
tenant of Mtunthama Farming Limited; that the operation of a filling station on the property
necessarily entailed the construction and installation of purpose-built filling station and
equipment including fuel tanks and fuel pumps, and the forecourt; and that the filling station
equipment was first constructed by the Applicant's predecessor company Oil Company of
Malawi Limited.

5.3 .1.1 The Respondents argue and submit that the notice of appeal filed by the Applicant is
irregular because it is not accompanied by any skeleton arguments as required by Practice
Direction 52PD.21 of the Civil Procedure Rules applicable in this Court, and that therefore,
the filing of the notice of appeal (and presumably the grounds of appeal set out in the notice

17
 of appeal) should be treated as inconsequential in so far as it relates to application for stay
herein. The Respondents further argue and submit that " ... no where in the sworn statement
of McHavern Ngwata does it show that the Applicant or any of its predecessors constructed
the Nkhota-Kota Filling Station"; that rather, all that the sworn statement shows is the
transition the Applicant has gone through, from being Oil Company of Malawi Ltd, to being
to BP Malawi Ltd to being Puma Energy (Malawi) Ltd; that in fact, Lease Agreement marked
JC 7 appearing as part of Exhibit MN 2 shows that what the Applicant's predecessors were
renting from Chayamba Holdings Ltd was the Nkhota-Kota Filling Station itselfand not that
the same was constructed by the Applicant's predecessors; that "... the issue of who
constructed the filling station cannot be a ground for granting a stay".

5.3 .1.2 The Respondents argument and submission that notice of appeal filed by the Applicant
is irregular because it is not accompanied by any skeleton arguments is, in my view, an issue
to be determined on the hearing and determination of the appeal. However, for purposes only
of considering the application of stay herein, it seems to me that it is in interest of justice that
the non-compliance, if any, with the requirement to file skeleton arguments at the time of
filing of the notice of appeal as pointed out by the Respondents be waived, so that I am able
to consider the grounds of appeal set out in the notice of appeal in so far as they relate to
application for stay. In this regard it is worth noting that although the issue of who constructed
the filling station appears to be in contention between the parties, none of the grounds of
appeal highlighted by the Applicant to be determined by the Supreme Court of Appeal seem
to relate directly to the construction of the filling station. Indeed, the issue of the construction
the filling station does not appear to have been raised in the court below; as far as I have been
able to determine the proceedings in the court below was for a declaration that the 1st
Respondent was of Plot No. KK 104 in Nkhota-Kota District, and an order of possession by
the Respondents of the plot.

5.3.2. With respect to the second issue, the Applicant argues and submits that "if the
judgment ofthe court below} is allowed to stand and the Applicant succeeds in its appeal, the
Applicant stands to lose [huge}. ... sums of money, ... "; that "since the Respondents
possession of the property would have been allowed by the judgment of the court below the
Respondents possession of the property would be lawful and the Applicant would not be
entitled to any damages against the Respondents or anyone else, even ifthe appeal succeeds";
that, "even assuming that the Respondents had the capacity to pay such sums of money, the
Applicant would have lost such revenues without any right to claim the same from the
Respondents"; and that, "therefore, the Applicant would suffer irreparable damage". In
another breathe the Applicant argues and submits that "the Respondents have not even set up
a business on the property"; that "if the Applicant's appeal fails and in the interim the
enforcement order was suspended/stayed, the Respondents' loss, ifany, would be much easier
to assess and would arguably be claimable from the Applicant"; that "although the Applicant
would suffer irreparable damage if the enforcement order is allowed to stand and the appeal

- succeeds, no such problem applies to the Respondents even if the Applicant's appeal failed'.
Finally, the Applicant argues and submits that "the fact that the filling station holds tenant 's
fixtures and equipment that belongs to the Applicant, the Applicant's vacating the property
would entail the Applicant having to remove the moveable property comprising the filling
station"; that "if the appeal succeeds, the Applicant would, in vain, have been put to grave
inconvenience in that they would have had to remove property from the filling station to let
the Respondents go into possession"; that "if the appeal succeeds, the Applicant would be put
to the trouble of installing the filling station equipment all over again having removed it in
circumstances that would not entitle the Applicant to any compensation, ... "; that the

18
 consequential "inconveniences and incompensable losses do not apply to the Respondents";
that "the enforcement of the judgment in the interim would pose the risk of injustice and
prejudice to the Applicant if the appeal later succeeds in a manner that would not apply to
the Respondents if the appeal fails and the enforcement of the judgment is suspended in the
interim"; and that "the balance of convenience therefore lies in favour of suspending or
staying enforcement of the judgment pending appeal".

5.3.2.1 With respect to irreparable harm the Respondents argue and submit that "the general
or normal rule in this Court when approached with an application for stay is for no stay
unless the Applicant puts forward a solid ground to show irremediable harm if no stay is
granted; that the " ... sworn statement ofMr McHarven Ngwata in support ofthe application
for stay ... does not show at all any kind irremediable harm that the Applicant will suffer
should a stay not be granted in these proceedings"; that "the Lease Agreement marked JC 7
appearing as part of Exhibit MN 2 shows that the [Applicant's] predecessors were renting
from Chayamba Holdings Ltd was the Nkhota-Kota Filling Station itselfand not that the same
was constructed by the [Applicant's] predecessors"; that " ... the Applicant has not
demonstrated anywhere in its affidavit that the Respondents would not be able to compensate
them in damages in the event oftheir appeal succeeding should they give up possession ofthe
filling station now as ordered by the Judge in the lower court"; that "the only injustice that
the [Applicant] stands to suffer with the [Respondents] gaining possession of the Filling
Station is the loss of revenue, but (his is the kind of loss which reparable as the [Supreme
Court of Appeal] would be in a position to order that the Applicant be compensated
accordingly for [its] loss if [its}appeal succeeds"; that, in any event, the Respondents have
undertaken to compensate the Applicant in the event of [its] appeal succeeding; and that " ...
the Applicant has not shown any solid ground why a stay should be granted in this matter and
the application should be dismissed accordingly".

5.3.2.2 In another breathe, the Respondents argue and submit that it is a fundamental guiding
principle of this Court when faced with an application for a stay that it will not reverse an
order of the court below refusing the grant of a stay merely because it would itself have
exercised the original discretion in a different way; that the onus is on the Applicant to show
how court below wrongly exercised its discretion; that nowhere in his sworn statement does
Mr McHarven Ngwata attempt to show how the court below exercised its discretion wrongly
in refusing to grant them the order of stay; that it was incumbent on the Applicant to show
how the court below had wrongly exercised his discretion; that " .. . the Ruling of the court
below refusing the Applicant a stay [is] ... well-reasoned and follows the principles of law
governing a stay especially ... [in relation to the] "finding that there is no irreparable harm
or injustice to be suffered by the Applicant in giving up possession of the filling station and
that the Respondents would be in a position to compensate the Applicant in the event of a

- successful appeal". While the Respondents arguments and submissions appears to be sound,
and are certainly appreciated, it must not be forgotten that this application is not before this
Court by way of appeal against the determination of the court below, but it is a fresh
application and in my view in accordance with Order I r 18 of the Supreme Court of Appeal
Rules (Cap. 3:01 sub. leg p.14)]. Consequently, and to the extent that the Applicant's
application is strictly not an appeal against the determination of the court below, the Applicant
need not show that the court below exercised its discretion wrongly in refusing to grant them
the order of stay; nor is it incumbent on the Applicant to show how the court below had
wrongly exercised its discretion as argued and submitted by the Respondents. Furthermore,
despite the assertion by the Respondents that " ... the Ruling of the court below refusing the

19
 Applicant a stay [is} ... well-reasoned and follows the principles of law governing a stay
especially .. . [in relation toJ ''finding that there is no irreparable harm or injustice to be
suffered by the Applicant in giving up possession ofthe filling station and that the Respondents
would be in a position to compensate the Applicant in the event of a successful appeal" this
Court is not constrained by the decision of the court below refusing to grant the Applicant's
application for a stay of the judgment of the court below, and is entitled to come to its own
conclusion based on the merits of the Applicant's application.

5 .4 I bear in mind that the grant or refusal of stay of execution of the judgment of the court
below, pending the hearing and determination of the appeal, is at the discretion of the Court.
I also bear in mind that my duty at this stage is not to determine the merits of the appeal.
However, I need to be satisfied that the issues raised for or against the granting of a stay of
the proceedings are sufficient to justify the exercise of my discretion one way or another.

5.5 The cardinal principle in determining a stay of judgment, pending the hearing and
determination of an appeal, is that a successful litigant should not be deprived of the fruits of
litigation, unless there are sufficient reasons for doing so; and in this regard the court should
certainly consider the risk of injustice or prejudice to either of the parties. In Mike Appel &
Gatto Ltd v Saulos Chilima MSCA Civil Appeal No.20 of 2013, a full bench of this Court,
after adopting the approach advocated Hammond Suddards Solicitors v Agrichem
International Holdings (supra) and Moat Housing Group-South Ltd v Harris The Times
January, 13 2005 (CA) observed that-

" ... a consideration of the risk of injustice or prejudice would encampass the
considerations currently and conveniently considered; but it also allows for other
considerations relevant in the case. Liberal in that way a court has a wider
premise upon which to exercise its discretion in granting or refusing to grant stay
of execution".

5.5.1 The approach advocated Hammond Suddards Solicitors v Agrichem International

Holdings (supra) and Moat Housing Group-South Ltd v Harris (supra) is that -

"court has discretion whether or not to grant a stay; whether the court should
exercise its discretion to grant a stay will depend upon all the circumstances of
the case, but the essential question is whether there is a risk of injustice to one or
the other or to both parties if it grants or refuses a stay. In particular, if a stay is
refused, what are the risks ofthe appeal being stifled? If a stay is granted and the
appeal fails, what are the risks that the respondent will be unable to enforce the
judgment? On the other hand, if a stay is refused and the appeal succeeds, and
the judgment is enforced in the meantime, what are the risks of the appellant

- being able to recover any moneys paid to the respondent .. .. ".

5.5.2 Thus, in determining whether to grant a stay of execution of judgment, pending the
hearing and determination of an appeal, regard must be had, among other things, to the
potential prejudice to the parties; the principal guiding principle in granting or refusing to
grant a stay of execution of judgment is the potential prejudice to either or both of the parties,
and the risk of injustice to one or both of the parties.

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 5.6 The issue which arises in this application is, having regard to all the circumstances
obtaining in this matter, what is the risk of injustice to one or the other party in these
proceedings if a stay of the proceedings, pending the hearing of the appeal, is granted or
refused; alternatively, what is the potential prejudice or risk of injustice to either of the parties
if a stay of the proceedings, pending the hearing of the appeal, is granted or refused. This issue
must, of course, be considered in the context that there is subsisting a binding judgment of the
court below which even this Court must respect until set aside or otherwise modified and also
that the Respondents are entitled to enjoy the fruits of their litigation.

5.7 Counsel for the Applicant has submitted that the good prospects of success of the
appeal in this matter is a ground for a stay of the proceedings. However, as observed in
paragraph 5 .3 .1.1, and without in any way wishing to be seen determining the appeal, none of
the grounds of appeal to be determined by the Supreme Court of Appeal seem to relate directly
to the construction of the filling station and, in any event, that issue is in contention between
the parties.

5.7.1 The Applicant also, in effect, argues and submits that the Applicant that "if the
judgment of the court belowJ is allowed to stand and the Applicant succeeds in its appeal, the
Applicant stands to lose [huge}such sums of money, which Applicant would not be entitled to
claim as damages against the Respondents or anyone else; that, "even assuming that the
Respondents had the capacity to pay such sums ofmoney, the Applicant would have lost such
revenues without any right to claim the same from the Respondents [or anyone else}"; and
that, "therefore, the Applicant would suffer irreparable damage". I am not sufficiently
persuaded by the Applicant's arguments and submissions that "if the judgment of the court
belowJ is allowed to stand and the Applicant succeeds in its appeal, the Applicant stands to
lose [hugeJ sums ofmoney, which Applicant would not be entitled to claim as damages against
the Respondents or anyone else"; that, "even assuming that the Respondents had the capacity
to pay such sums ofmoney, the Applicant would have lost such revenues without any right to
claim the same from the Respondents or any one else"; and that, "the Applicant would,
therefore, suffer irreparable damage". It seems to me that the Applicant could if it so wished
pursue recover its loss from the person or entity that put the Applicant in the position that the
Applicant has found itself. Nor am I persuaded by the arguments and submissions that "if the
Applicant's appeal fails and in the interim the judgment of the court below was suspended or
stayed, the Respondents' loss, if any, would be much less and easier to assess "; and that
"although the Applicant would suffer irreparable damage if the enforcement order is allowed
to stand and the appeal succeeds ... ". In my considered view the ease with which the
Applicant's a loss may or may not assessed does not negate the fact that the loss to the
Applicant, if the appeal succeeds, can be assessed. The Applicant' s arguments and
submissions that "the filling station holds tenant's fixtures and equipment that belongs to the
Applicant; that the Applicant vacating the filling station would require the Applicant to
remove the moveable property comprising the filling station; that if the appeal succeeds, the

- Applicant would, in vain, have been put to grave inconvenience in having had to remove
property from the filling station; that if the appeal succeeds, the Applicant would be put to the
trouble of installing the filling station equipment all over again", are all premised on the on
the assertion by the Applicant that its predecessor constructed the filling station. However, as
noted earlier in this Ruling that the issue of who constructed the filling station does not appear
to have arisen in the court below, but now appears to in contention between the parties.
Nevertheless, none of the grounds of appeal highlighted by the Applicant to be determined by
the Supreme Court of Appeal seem to relate directly to the construction of the filling station

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 and, for purposes of this application, it would probably be preferable if this Court avoids
making any pronouncement or finding on the issue.

5.7.2 The Respondents argue and submit that the Applicant has not shown any kind
irremediable harm that the Applicant will suffer should a stay of enforcement of the judgment
of the court below not be granted; that the Applicant has not demonstrated that the
Respondents would not be able to compensate the Applicant in damages in the event of its
appeal succeeding should they give up possession of the filling station now as ordered by the
court below; that the only injustice that the Applicant stands to suffer with the Respondents
gaining possession of the filling station is the loss of revenue, but this is the kind of loss which
reparable if the Applicant's his appeal succeeds; and in any event, that Respondents have
undertaken to compensate the Applicant in the event of its appeal succeeding.

5.7.3 I am not sufficiently persuaded that the Applicant has shown or demonstrated any kind
irreparable harm that the Applicant will suffer should a stay or suspension of enforcement of
the judgment of the court below not be granted; or that the Respondents would not be able to
compensate the Applicant in damages in the event of the appeal succeeding. It seems to me
that the only injustice or prejudice that the Applicant argues that it stands to suffer with the
Respondents gaining possession of the filling station is the loss of revenue from the operation
of the filling station, and such loss is reparable if the Applicant's appeal succeeds; and it is
loss that the Respondents have undertaken to compensate the Applicant in the event of the
appeal succeeding. Nor am I persU'aded, as suggested on behalf of the Applicant, that "the
enforcement of the judgment of the court below would pose a risk of injustice and prejudice
to the Applicant if the appeal later succeeds in a manner that would not apply to the
Respondents if the appeal fails and the enforcement of the judgment is suspended in the
interim"; and that "the balance of convenience, therefore, lies in favour of suspending or
staying enforcement of the judgment pending appeal". In my considered view, it would be
utterly unconscionable and, therefore, unjust to deprive the Respondents of the fruits of their
litigation in circumstances where the Applicant has failed to show that, unless the judgment
of the court below is stayed or suspended, it would suffer irreparable loss or damage and,
therefore, injustice or prejudice, especially where the basis of the application for stay or
suspension of the judgment of the court below is not or has not directly been anchored or
premised on any of the grounds of appeal to be heard and determined on appeal.

5.8 I am of the firm view that this is not a proper case in which this Court should exercise its
discretion to grant a stay or suspension of the judgment of the court below, pending the
hearing and determination of the Applicant's appeal. I, accordingly, refuse to grant the
Applicant's application for a stay of the execution of the judgment of the court below, and I
dismiss the Applicant's application.

-
5.9 Costs for the Respondents.

Pronounced in Chambers is 22n<Aday of May, 2018 at Blantyre.

Justice Anthony Kamang SC

JUSTICE OF ,APPEAI.:
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