Document Sample
RULING Powered By Docstoc
					                 IN THE SUPREME COURT OF APPEAL
                             AT BLANTYRE
             MSCA CIVIL APPEAL NO. 17 OF 2OO9
              (Being Higtl Court Ciuil Cause No. 163 of 20OB)


     THE MINISTER OF FINANCE           ...               1ST   APPtrLLANT


     THE SECRETARY TO THE TREASURY .......              2ND    APPtrLLANT

              HON. FRIDAY JUMBE, MP ..   ........2ND RESPONDENT
                 HON. NGA MTAFU, MP..                 ......4TH RESPONDENT
                 HON. B.J. MPINGANJIRA, MP     .         ....STH RESPONDENT
                 HON. PISHO NKHWAZI, MP            .....,.,6TH RESPONDENT

     (On their own behalf and on behalf of all Members of Parliament
     except Cabinet Ministers)


                 Thabo Chakaka Nyirenda, Senior State Advocate,
                 for the Appellants
                 Kasambara, Assisted by Kita, of Counsel,
                 for the Respondents.
                 Balakasi. Court Official


          The appellants have brought this application for arl
     order that the execution of the judgment of the High Court
delivered on March 05, 2OO9 be stayed pending the
determination of the appeal against it. The respondents
oppose the application.

    There is an affidavit filed in support of the application
sworn by Mr Nyirenda, who also appea-red at the hearing of
the application. The respondents have not filed an.y
Affidavit. Mr. Nyirenda essentially depones that the appeal
is likely to succeed and, in that event, that there is no
reasonable prospect of recovering the judgment money from
the respondents as they ale persons of doubtful mearrs,
who are already heavily indebted and are unable to meet
their obligations to the Malawi government.

    A statement, albeit brief, of the history of the matter
may help to appreciate the conclusion which I intend to
reach. In fact there is no dispute about this. Some time
before the beginning of the current government fiscal year,
the National Assembly resolved that each Mernber of
Parliament (MP) be entitled to a monthly allowance in a sum
equivalent to the price of 500 litres of motor vehicle fuel.
The fiscal year began to run on July 01't, 2008 and will end
on June 30, 2OO9. The allowance was factored into the
budget estimates of the fiscal year and was part of the
Appropriation Bill which Parliament later passed into law as
the Appropriation Act 2008. Some time in September 2OO8,
the Appeilants directed the Clerk of Parliament not to pay
the allowance until the first appellant agrees to the payrnent
in writing. And such is the history of the matter.

     I should now refer to the principles governing stay of
execution; they are platitudinous and, therefore, I need not
cite any authority for them. They are that: (a) the court will
not grant a stay unless it is satisfied that there is a good
reason for doing so; (b) the court does not "me"ke a practice
of depriuing a success.Ttrl litigant of the fruits of his litigation,
and locking up funds to which he is prtma facie entitled,"
pending the determination of an appeal, and (c) that the
practice is that a stay will normaliy be granted only u'here
the applicant satisfies the court that if the judgment money
is paid then there will be no reasonable prospect of
recovering it in the event of the appeal succeeding.

     My understanding 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 the only
good reason to do so is when it appears to the court that
there are no reasonable prospects of recovering the money
in the event that the appeal succeeds. 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 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, if successful, would be
nugatory by reason that there is no reasonable probability
of the appellant getting the money back, is a matter of facts
which rnust be presented to the court for assessment.

     The appellant's assertions are that the respondents are
heavily indebted and that they are unable to meet their
obligations to the Government. It is noternrorthy that the
indebtedness being referred to appears to have come about
by way of loans which the Government seems to have freely
granted the respondents. It is also noteworthy that any
loan agreement will, almost invariably, stipulate a mode of
repayment. It is also worth of note that the loaner in such
agreement will, almost always, first have been satisfied of
the borrower's capacit5r or ability to honour the obligation.
Accordingly, it seems to me untainable for the appellants to
now contend that the respondents a-re persons of doubtful
means, without further evidence as to how that has come
about. I am saying that the appellants, in these
circumstances, cannot advance the respondents'
indebtedness to the Government as a reason for denying the
respondents the fruits of their litigation. Besides, it seems
to me that the payment of the judgment money may in fact
result in the reduction of the indebtedness"

           There was some reference to the global economic
      down-turn. It was submitted that this has negatively
      affected the revenue collection as well as the donor inflow
      which has in a way made it difficult for the government to
      implement its planned activities. It was, therefore,
      submitted that the execution of the judgment would
      paralyse the operations of the Government especially the
      rendering of the essential services to its citizens such as
      health and delivery of security services. Learned Counsel
      also referred to the forthcoming parliamentary and
      presidential elections as another a.rea that has drained
      Government resources.

           Generally, an appellant's inability to pay a judgment
      debt has not been a reason to stay execution. I arn aware,
      however, that it is sometimes a legitimate ground for
      granting an application for stay if it can be shown that the
      appeal had some prospect of success and that without a
      stay the applicant will be ruined - Linotvpe - Hell finance
      Limited Vs. Baker lI992l 4 ALL ER 887. I do not intend to
      comment on the prospects of the appeal succeeding lest it
      be construed as prejudging the appeal.. As for the financial
      hardship the payment may cause to the Government, this
      may indeed be so just as it may with any judgment debtor.
      But it is hard to see how it may ruin the Government in the
      absence of clear evidence, and this is particularly so
      considering that it is not a sudden occurrence; it is about
      funds which have been included in the budget of the
      current fiscal years.

           in the result I refuse to deprive the respondents of the
      fruits of their litigation. I dismiss the application with
     MADE   in   Chambers this 30th day of April, 2OO9 at