Abdul Ebrahim Dudhia, Arshad Adbulla Dudhia and Gulam Farid Patel (trading as Musa Dudhia and Co, a law firm) v Sanmukh Ramanlal Patel and Anor (Appeal No. 183 of 2021; Application SP 37/2021) [2022] ZMCA 202 (16 June 2022)

(Civil Jurisdiction) BETWEEN: ii] 16 JUN 2022 l-± '-CPltt. REGllliYI , ( ~~ - ~ / ABDUL EBRAHIM DUDHIA, ARSH . x 50067 • \. U ADBULLADUDHIA and GULAM FARID PATEL (trading as Musa Dudhia and Co, a law firm) Applicants AND SANMUKH RAMANLAL PATEL FIRST ALLIANCE BANK ZAMBIA LIMITED 1st Respondent 2nd Respondent Coram: Mchenga, Majula and Sharpe-Phiri, JJA on 1st March, 7 th March 2022 and 16 th June 2022 For the Applicants: Mr. Eric Silwamba & Mr. M. Chileshe of Messrs Eric Silwamba, Jalasi and Linyama Legal Practitioners For the Respondents: Mr. M. Siansumo of Messrs Malambo and Company RULING Sharpe-Phiri, JA, delivered the Ruling of the Court Legislation referred to: 1. Constitution of Zambia Act, Chapter 1 of the Laws of Zambia 2. The Court of Appeal Act, No. 7 of2016 3. The Court of Appeal Rules, SI No. 65 of 2016 4. The Rules of the Supreme Court of England (White Book}, 1999 Edition Cases referred to: 1. Valentine Shula Musakanya and Edward Jack Shamwana vs Attorney General (1981)ZR221 RI 2. Bidvest Foods Zambia Ltd v CAA Import and Export Ltd, Appeal No. 56 of 2017, SC 3. BP Zambia Pie v Yuyi Mubita Lishomwa, Hastings O'brien Gondwe and Singumbe Keith Mutupo, Appeal No. 72 of 2007, SC 4. R v Secretary of State Exp, Eastaway (Lord Bingham) (2000) 1 All ER 27 5. The Queen on the Application of Compton v Wiltshire Primary Care Trust (2008) ECWA Civ 749 6. Mpongwe Farms Ltd v Dar Farms and Transport Ltd (2016) ZR 1 1.0 INTRODUCTION 1.1 This motion was brought by the Applicants who seek leave to appeal to the Supreme Court against a judgment of this Court delivered on 14th December 2021. By that judgment, this Court dismissed their appeal on the basis of res judicata. 1.2 The motion has been brought by Notice filed on 27th December 2021 and made pursuant to the provisions of Section 13 of the Court of Appeal Act, (CAA) as read with the provisions of Order XI of the Court of Appeal Rules, (CAR) . 1.3 The application was also supported by an affidavit sworn by one of the Applicants, Gulam Farid Patel. 2.0 BACKGROUND 2.1 The brief background of the matter is that the Applicants were sued as Defendants in the High Court for Zambia under cause number 2014/HPC/0227. During the course of proceedings, the Applicants brought an application on the 11 th August 2017 R2 to the learned judge in the Court below for a Further and Better list of documents and an order for discovery of documents. The Applicant also sought an order that th e Respondent make and file an affidavit stating whether they have had any of the documents listed in their affidavit. The application was granted by the learned Judge Mwenda on 21 st October 2019. 2.2 In the Summons for an order for further and better list of documents and discovery of particular documents filed on 1 1th August 2017 made pursuant to Order 3 Rule 2 of the High Court Rules, the Applicants seek the following: (i) An order that the Plaintiffs do within 14 days from the date of the this said order make and serve on the Defendants a further and better list of the following documents which are or have been in their possession, custody or power relating to any matter in question in this action, which list is to be verified by affidavit; and; (ii) An order that the Plaintiff do within 14 days from the date of such order make and file an affidavit stating whether they have now or had at any time in their possession, custody or power, the specific or particular documents or classes of documents mentioned in the affidavit filed in support of this application and if any or all of the said documents are not now in the Plaintifr s possession, custody or power R3 stating when they parted w ith the same and what has become of the same. 2.3 The Applicants did not disclose the documents they were seeking but requested that the Respondent provide list of documents which relate to the following: (a) How and when the loans were made by the 1st Plaintiff to the Courtyard Hotel Limited and/ or Mr. Ayub Mulla or his family; (b) How and when loans were made by the 2 nd Plaintiff to the Courtyard Hotel Limited and / or Mr. Ayub Mulla; (c) How and when the loans were repaid by Courtyard Hotel Limited and / or Mr. Ayub Mulla and/or first National Bank; (d) How the monies paid to the 2nd Plaintiff were applied in respect of the loans of Courtyard Hotel; (e) The history of the loans in the 2 nd plaintiff books; (f) The Money lenders licence h eld by the 1st plaintiff allowing him to lend money in Zambia; (g) How the loans made to Courtyard Limited by the 2nd plaintiff were applied in the 2 nd Plaintiff's books and accounts and regulatory filing with Bank of Za mbia; and (h) Where the 1st Plaintiff obtained the funds that h e used to lend money to Courtyard Hotel Limited and/ or Mr. Ayub Mulla and his family. R4 2.4 Although the Respondent intimated that they could not ascertain the documents requested due to no specific documents being referred to, the judge held that "After a careful examination of the law and authorities citied by the parties hereto, I am of the considered view that the Defendants' application for an order for further and better list of documents and discovery of particular documents has merit. I have reached this conclusion for the reasons below. I am of the view that the interest of justice demands that full discovery is made of all the documents relevant to the plaintiffs' claims so that the Court has all the material facts and evidence before it in order to arrive at a just decision. The Defendants are not merely making a deductive allegation from the surrounding circumstances but have specified the documents they are seeking discovery of in paragraph 6 of the Affidavit in support, which is sufficiently descriptive of the same. In my view, the defendants have done exactly that, by asserting that the 1s t Plaintiff must be in possession of his bank statements and transactional documents showing the source of his money and the terms on which he allegedly disbursed the same" and ordered accordingly. In response, the Respondent filed further and better list of documents on 8 th November 2019. 2.5 By letter dated 13t h December 2019 (page 129 of the Record of Appeal), the Applicants requested for the Respondent's compliance with the Court's order of 21 st October 2019 which required the Respondent to file an affidavit stating if it had at any time been in possession, custody or power the specified RS documents. Subsequently, the Applicants brought another a pplication on 30th March 2020 before the learned Judge in the Court below for an order to dismiss action pursuant to Order 24 rule 16 of the Rules of the Supreme Court (1999) Edition (RSC) seeking dismissal of the action on the basis that the Respondent's had not fully complied with the earlier order of the Court of 21st October 2019. 2.6 After considering this application, the Judge granted the Respondents an extension of time within which to comply with the order to avail documents. The Respondents filed an affidavit deposing which documents it had in its possession and control indicating that they did not h ave in their control and possession, the documents requested by the Applicants. 2.7 The Applicants filed yet another application for further and better list of documents and an order for discovery of particular documents on 16th October 2020. The learned trial Judge in her Ruling of 24t h February 2021 dismissed the application as res judicata and an abuse of court process. This dismissal prompted an appeal to this Court which also upheld the learned trial Judge's Ruling through a Judgment delivered under Appeal No. 183/2021. 2.8 This Court held that the doctrine of res judicata equally applies to preliminary issues as to final Judgments and thereby dismissed the Applicant's appeal as lacking merit. R6 3. 0 THE NOTICE OF MOTION BEFORE COURT AND APPLICANT'S DEPOSITIONS IN SUPPORT 3 .1 The Notice of Motion filed by the Applicants is for leave to a ppeal to the Supreme Court against the Judgmen t of this Court da ted 14th December 202 1. The Notice is premised on the following gr ounds: 1. The Court of Appeal erred in law and fact when it declined to conclusively adjudicate on the re-launched (SECOND) application for a Further and Better List and holding that it was Res Judicata and an abuse of Court Process: (i) The Court of Appeal erred in fact and law when it declined to determine the Appeal, qua, the SECOND application for Discovery on the merits as full Discovery is critical to ensure that justice is achieved in civil litigation; and (ii) The Court of Appeal erred in fact and law when, on the basis of res judicata, it abdicated its duty to adjudicate on the burden which is placed on the Respondents i.e. SANMUKH RAMANLAL PATEL and FIRST ALLIANCE BANK ZAMBIA LIMITED by the provisions of Order 24 / 7 of the Rules of the Supreme Court, 1965 (White Book), RSC, 1999 Edition, Volume 1 . R7 2. The Court of Appeal erred in Law when it misconstrued the ratio decidendi on res judicata in the Judgment of the High Court for Zambia in the case of Valentine Shula Musakanya and Edward Jack Shamwana vs Attorney General1. 3.2 The Notice was supported by an affidavit sworn by Gulam Farid Patel on behalf of the Applicants. 3.3 He deposed that following the Judgment which dismissed the appeal on the basis of res judicata, he had consulted Counsel and also personally believes that: (i) · The lower Court failed to take into account the importance of discovery in civil litigation and the several rules governing the discovery process in Order 24 RSC. If the learned Judgment of this Honourable Court is not appealed against, it will mean that parties in civil litigation in Zambia will use the Judgment of this Honourable Court to avoid making full discovery. Instead litigants will be able to use the judgment to pick and choose what documents to disclose to the other side. The whole basis of the process of discovery to ensure all documents and facts are before the Court in civil litigation will be undermined. (ii) There was a misapprehension insofar as this Honourable Court decided that the application in the High Court was RS dealing with the very same matters that had previously been ruled on by the learned High Court Judge. That the application before the High Court related to specifically described documents that had not been previously asked for. The Applicants also requested documents that the Astro Holdings Group of companies (which related to Mr Patel and First Alliance Bank Zambia Limited) have to have by law and which were relevant and necessary for Applicant's defence in the High Court proceedings; and (iii) No guidance was provided by this Honourable Court in relation to what the Applicant should have done when the Applicant found out that the Respondents have further documents that they have not disclosed and which were relevant to the Applicants' defence. 3.2 The Applicants contended that the matter in the Court below had delayed because the Respondents were not forthcoming with full disclosure of documents despite having been ordered to do so, nor did they give an explanation as to the whereabouts of the documents that were allegedly not in their possession and when they had parted away with the documents and what had become of the documents. The Applicants then proceeded to list a range of documents it had been seeking to be availed but they will not be listed for purposes of issues for determination of the Motion this Judgment. R9 3.3 The deponent went on to state that the Applicant could not finalize any defence strategy and prepare the necessary witness statements in the absence of the requested documents adding that even this Court's Judgment held that the only subsequent application for further application for Further and Better List of Documents filed on 16th October 2020 was res judicata and an abuse of Court process and there did not address itself with discovery obligations and the rules relating to discovery. 3.4 It was further deposed that for the aforesaid depositions, the Applicants had good cause to appeal to the Supreme Court of Zambia as per the draft memorandum of appeal which was exhibited in the Applicant's affidavit. 4.0 AFFIDAVIT IN OPPOSITION TO AFFIDAVIT IN SUPPORT OF MOTION 4.1 The Respondents filed an affidavit in opposition sworn by Sanmukh Ramanlal Patel. He deposed that the claim against the Applicants as contained in the Statement of Claim arose from a binding and professional undertaking by which the Applicants undertook not to release the Deeds of Title or register any interest adverse to the 1st Respondent prior to him receiving a sum ofUS$5,000,000 or in the alternative that the Applicants would procure and remit the said sum to the Respondents. RIO 4.2 That contrary to the said undertaking, the Applicants breached the said undertaking against the Respondents by registering a third party interest against the title Deeds and released them to a third party thereby giving rise to the claim in the lower Court. 4.3 That during proceedings in the Court below, the Applicant applied for supply of Further and Better List of Documents and the Court ruled on 21 st October 2019 that the Respondent do supply the documents so requested which Ruling the Respondent complied with by filing a Further and Better List of Documents on 8 th November 2019. 4.4 Subsequent to that, the Applicants took out an application to dismiss the action for failure to comply with Court Order of 21 st October 2021 but the trial Court below declined to grant the application as what remained for the Respondent's compliance was filing of an affidavit as to whether it had then or at any time in its possession, custody or power the class of documents requested. The Respondent were thus given 10 days within which to comply, in compliance with the said directive of Court, the Respondent filed an affidavit thereby complying with the lower Court's Order of 21 st October 2019. 4.5 That the Applicant yet again brought an application for Further and Better List of Documents listing the specific documents they required in their affidavit in support of application. Rll 4.6 The Respondent wondered why the documents which were now in contention were not the subject of the earlier application going by the dates which range from 1st July 2006 to January 2015. They added that the said dates are much earlier than the first application which was made on 11 th August 2019 as shown at page 187 of the Record of Appeal, and that the second request was not as a result of the documents which were earlier supplied. 4.7 The deponent submitted that the motion before Court does not disclose any prospect of success nor raise any issues of public importance warranting the grant of leave to appeal to the Supreme Court. 5.0 ARGUMENTS IN SUPPORT OF MOTION 5.1 The Applicants argued in the arguments filed on 27th December 2021 that appeals from the Court of Appeal to the Supreme Court are governed by provisions of Article 13(2) of the Constitution of Zambia, Constitution of Zambia Act, Chapter 1 of the Laws of Zambia, Section 13 CAA and Order XI CAR. They particularly relied on Sections 13(2)(a)(c) and (d) which provide that the Court of Appeal may grant leave to appeal where it considers that the appeal raises a point of law of public importance, the appeal would have a reasonable prospect of success, or that there is some other compelling reason for the appeal to be heard. R12 5.2 The Applicants submitted that the appeal herein raises a point of law of public importance as articulated in the Supreme Court case of Bidvest Foods Zambia Limited vs CAA Import and Export Limited2 among other grounds, where it was held that: 'For a legal question to be treated as a point of law of public importance, it must have a public or general character rather than one that merely affects the private rights or interest of the parties to a particular dispute. The legal point in issue should relate to a widespread concern in the body politic the determination of which should naturally have effect beyond the private interests of the parties to the appeal.' 5.3 The Applicant argued that the issues raised in the draft memorandum of appeal were such that the impact transcended beyond its interests but had a bearing upon the public interest. 5.4 The Applicants argued that they had good prospects of succeeding in the Supreme Court citing ground one of its memorandum of appeal which stated that this Court erred and fact when it declined to conclusively adjudicate on the re launched (second) application for Further and Better List. They argued that the Court erred by holding that the matter was res judicata and an abuse of court process as full discovery 1s critical to ensure that justice is achieved in civil litigation. R13 5.5 They added further that by this Court's failure to consider the appeal on merits, it abdicated its duty to adjudicate on the burden which is placed on the Respondent by the provisions of Order 24/7 RSC. 5.6 The Applicant contended that there was misapprehension insofar as this Honourable Court considered that the application that led to this appeal was dealing with the very same matters that had previously been ruled on by the High Court Judge. They added that no guidance had been provided in relation to what the Applicants should have done when they found out that the Respondents had further documents that the Applicants have not disclosed and that if the Judgment is not appealed against, the litigants going forward will be able to hide documents and get away with it, contrary to the obligation to give discovery. The Applicants argued that even though they recognized at paragraph 7 .24 of the Judgment that the Court had to make a finding in relation to the Respondents response, no finding was in fact made by this Court or the lower Court on the fact that the Respondents did not have the documents in question. 5.6 Being dissatisfied with the judgment of this Court of 14th December 2021, the Appellants filed a Notice of Appeal advancing two grounds of appeal namely that: 1. The Court of Appeal erred in law and fact when it declined to conclusively adjudicate on the re-launched (second) Rl4 application for a Further and Better List and holding that it was res judicata and an abuse of Court process: i) The Court of Appeal erred in law and fact when it declin ed to determine the Appeal, qua, the Second application for Discovery on the merits as full Discovery is critical to ensure that justice is achieved in civil litigation; and ii) The Court of Appeal erred in fact and law when, on the basis of res judicata, it abdicated its duty to adjudicate on th e burden which is placed on the Respondents i.e. Sanmukh Ramanlal Patel and First Alliance Bank Zambia Limited by the provisions of Order 24/7 RSC. 2. The Cour t of Appeal erred in law when it misconstrued the ratio decidendi on Res Judicata in the Judgment of the High Court for Zambia in the case of Valentine Shula Musakanya and Edward Jack Shamwana V Attorney General. 5.7 Th e Applicants went on to argue that their second ground of a rgument is that the appeal has a likelihood of succeedin g. They relied on the Supreme Court decision in the case of Bidvest Food Zambia where it was held that: 'Turning to Section 13(3)(c) of the Court of Appeal Act, we must make the point that as regards the requirement for R l 5 prospect of success the wording employed by that section is not very different from that used in the Civil Procedure Rules (CPR) 52. 7(l)(a) of England and Wales. In thatjurisdiction, permission to appeal is granted only where the appeal has a real as opposed to fanciful, prospect of success as explained by Lord Woof MR in Swain v Hillman. Given what we have earlier stated regarding what we consider to be the altered role of the Supreme Court following the establishment of the Court of Appeal, and given also the combination in the Zambian situation of the criteria for grant of leave to appeal premised on prospects of success must be used warily. The whole philosophy behind restricting appeals to the Supreme Court as we have earlier in this Judgment explained it, as well as the purpose and spirit of Section 13 of the Court of Appeal Act are in a way undermined by subsection 13(3)(c). as is the case in other jurisdictions such as the United Kingdom and the United States, it is not and cannot be the proper role of the Supreme Court to routinely correct errors made by lower courts. Section 13(3)(c) could have this contradicting effect. It is in this sense that the relevant arms of government are called upon to reconsider Section 13(3)(c) of the Court of Appeal Act with a view to realigning the section to the overall purpose and spirit of the Act ... Rl6 Our view, therefore, is that while Section 13(3)(c) provides a standalone basis for granting leave to appeal against judgment of the Court of Appeal, it should be resorted to very sparingly. If used liberally, the purpose of the restriction of the appeals contemplated in section 13 of the Court of Appeal Act would be grossly undermined. A judgment of the lower court may raise some doubt as to its rationalization, application of legal principles, or some . aspects of it. Those misapprehensions or misapplications or lingering doubts as to its correctness may, however, not be sufficiently weighty to justify an appeal. Indeed, there are many appeals that are arguable and have reasonably good prospects of success merely because the Court of Appeal missed a point, or where the court clearly did not direct itself to all the evidence bearing on an issue, and yet, the proposed appeal may not enjoy sufficient prospects of real, eventual success to justify the intervention ·of this Court. · It may well be that there may be niggling doubts about the correctness of some aspects of the Court of Appeal judgment. The refusal of leave to appeal against a judgment of the Court of Appeal should not be regarded as an endorsement of the judgment complained of and all its alleged imperfections, nor should it be viewed as giving judicial imprimatur to otherwise wrong decisions. Rl7 Yet, it is not this court's role to correct each and every such error. We reiterate Lord Bingham's earlier quoted statement in the case of R v Secretary of State for Trade and Industry Exp. Eastaway. When infallibility of the human mind, even at the highest level of adjudication, is weighed against the benefits of inability finality of litigation, the latter should assume the latter should assume the first position.' 5.8 The Applicants submitted that the appeal was fit to be considered under Section 13(3)(c) of CAA. 5.9 The Applicants went on to submit that this Court observed at paragraph 7.24 of the Judgment as follows: 'We therefore, believe that once the party so requested denies being or ever having been in possession, custody, or control of the required documents, it remains for the Court to determine the issue one way or the other. It the Court is satisfied with the response by the requested party, the matter is brought to a closure in relation to the application for discovery.' 5.10 The Applicants submitted that this Court did not however determine the issue that remained despite making the said observation, and like the lower Court, the Applicant argued that this Court concentrated only on res judicata and considered the issue to be conclusive. Rl8 5.11 The Applicants argued that the unfortunate effect of the Judgment of this Court entails ignoring the principle of discovery as a cornerstone of civil litigation. They submitted that the Judgment sends a message that if a litigant manages to conceal documents, such litigant can get away with it without having to satisfy the burden placed on him to prove that such documents were relevant. It was argued that the scope of the application on the Court below was much wider and the particular documents specified in the second application were different, yet the Court used an affidavit filed in compliance with the previous application to determine that the Respondents had complied. 5.12 The Applicant went on to argue that this Court arrived at an erroneous conclusion in its Judgment at paragraph 7.25 which is at page J 17 of our Judgment, when we found that the learned Judge had allowed a second application for Further and Better List of Documents and Discovery when the factual position was that the lower Court only allowed the first application filed on 11th August 2017 whose Ruling was delivered on 21st October 2019. 5.13 They went on to submit that the second application filed was for dismissal of the matter but the lower court declined to dismiss the matter and instead extended time within which to comply. They argued that the third application (which was the second application) for Further and Better List of Documents R19 and Discovery was declined. They argued that the net effect of their submission is that the appeal has real prospect of success. 5.14 It was submitted that in arriving at our decision, we relied on the case of Valentine Shula Musakanya case which they said was distinguishable from this case. The Applicants submitted that in the Shamwana case, the Attorney General was on firm ground when he raised the plea of res judicata because prior to moving the High Court by way of petitions, both Applicants had moved the High Court seeking the same reliefs under different causes. It was argued that this case is distinguishable as it relates to the provisions of Order 24/7 RSC which governs Discovery and Inspection adding that raising a second application for Further and Better List of Documents cannot be res judicata as was the case in the Shamwana case. The Applicants conceded that deploying the application in a piecemeal fashion could be undesirable but cannot be deemed to be fatal. 6.0 ARGUMENTS OPPOSING THE APPEAL 6.1 The Respondents heads of argument opposing the motion were filed into court on 25th January 2022. In their preliminary, an argument was raised touching on the propriety of the motion before Court. The Respondents contended that the Motion was not compliant with Section 13(3) CAA which stipulates the grounds upon which leave to appeal may be granted. R20 6.2 Reference was made to the Supreme Court case of BP Zambia Plc vs Yuyi Mubita Lishomwa, Hastings O'brien Gondwe and Singumbe Keith Mutupo3 wh ere the Court h eld that: 'We have considered the appellant's submission on this argument and notably State Counsel Malambo did not address us on this point. We take the view that since the Notice of Motion is basically what moves the Court, it is important that the same is clear and that the grounds of the application should be contained therein. It is, therefore, mandatory that Rule 48(7) is adhered to. In this case we note that although the Notice of Motion indicates that the grounds are contained in the affidavit, the grounds were not included in the affidavit in support. In any case, it would be wrong to enumerate the grounds in the affidavit as the same ordinarily contains the facts in support of the application.' 6.3 The Respondents contended that the Applicants' motion was incompetently before Court as it did not comply with the provisions of Section 13(3) CAA which provides for the grounds upon which leave to appeal may be applied for. 6.4 The Respondents also argued that there is no significant reason compelling the grant of leave to appeal to the Supreme Court in this matter adding that the Supreme Court should only be resorted to sparingly following the introduction of the Court of Appeal in this jurisdiction. R21 6.5 The Respondents relied on the English case of R v Secretary of State Exp, Eastaw ay (Lord Bingham)4 where it was stated that: 'In its role as a Supreme Court the House must necessarily concentrate its attention on a relatively small number of cases recognized as raising legal questions of general public importance. It cannot seek to correct errors in the application of settled law, even where such are shown to exist. ' 7 .0 ARGUMENTS IN REPLY 7.1 The Applicants rebutted the Respondent's arguments by filing arguments in reply on 3 rd March 2022 . In the said submissions, the Applicant argued that it was not necessary to regurgitate what is contained in Section 13(3) CAA as that would not afford the Court the chance to properly scrutinize the intended appeal. It was further argued that the Motion before Court properly complies with the Court of Appeal Rules, (CAR) which prescribes the form a Notice of Motion should take. 7.2 It was further argued that the questions which the intended appeal seeks to settle are of public importance as it will settle the jurisprudence on the discovery procedure where one party fails to disclose documents in its possession when it has been requested to do so. R22 7 .3 The Applicants relied on the English case of The Queen on the Application of Compton vs Wiltshire Primary Care Trust5 where the Court noted that a matter is of general public importance if it among other things involves the elucidation of public law by higher courts, in addition to the interest of parties. 8 .0 DECISION OF THIS COURT 8.1 We have carefully considered the motion and the submissions of the parties in this matter. There are two broad considerations to determining the motion before us. The first issue will be to consider the preliminary issue on the propriety of the Notice of Motion before us. The second issue will be to deliberate and consider if the Notice of Motion has raised valid grounds for grant of leave to appeal to the Supreme Court. 8.2 The contention of the Respondents is that the Notice of Motion does not comply with Se ction 13(3) CAA the provision which spells out grounds for grant of leave to appeal. The Applicants on the other hand have responded by submitting that the Notice of Motion does in fact comply with Form III o f CAR which requires among other things to state an order or relief that an applicant is seeking and the grounds on which that order is being sought. 8.3 A critical examination of Section 13(3) CAA clearly shows that it is not the intention of the said provision to outline the specific R23 and particular wording of what should be in the Notice of Motion. The provision merely seeks to provide a guiding framework for the Applicant and for the Court to consider and determine the motion before it, as to whether the particular grounds raised in a given motion do meet the said threshold. 8. 4 The Court may have to be satisfied that the in tended appeal brings out any of the grounds in the substance of facts before the Court for it to grant an Applicant leave to appeal. The provision simply sets out guidelines and not what ought to be contained in the Notice of Motion word for word. For the said reason, we see no merit in the issue raised by the Respondent on the propriety of the Notice of Motion before Court. 8.5 This then brings us to th e crux of the matter before us, the determination of whether the application for leave to appeal to the Supreme Court for Zambia meets the threshold of Section 13 of the Act. The contention hinges on the consideration of the Applicants' application for Further and Better List of Documents and Discovery made in the High Court and adjudged by that Court as being res judicata having been previously determined upon by that Court. This Court equally upheld the decision of the lower Court as being sound, agreeing with the lower Court that the matter was res judicata. R24 8 .6 The relevant provisions of Section 13(3) CAA provides that: 'The Court may grant leave to appeal where it considers that- (a)The appeal raises a point of law of public importance; (b) ... (c) The appeal would have a reasonable prospect of success; and (d) There is some other compelling reason for the appeal to be heard." 8. 7 The background to this issue as summarized by this Court's earlier Judgment of 14th December 2021 from pages J14 to J16 under Appeal No. 183 /202 1 between the same parties on this very issue, among others, is as we observed and stated that: ' ... upon the first application in the Court below, being made by the Appellant on 11 th August, 2017, the Court rendered a ruling on 21 st October, 2019 by which it ordered the Respondents to make and serve the Appellants with further and better list of documents pursuant to Order 24 rule 11(2) and to make and an affidavit as required by Order 24 rule 7 of the Rules of the Supreme Court 1999 edition. The Respondents complied with the two Court orders in November 2019 but did not file an affidavit relating to some of the specified documents. R25 This prompted the Appellants to file summons to dismiss the action but the Court granted the Respondents a ten day extension of time within which to comply with its earlier order. In response to that extension, the Respondents, by affidavit dated 14th July, 2020, and deposed to by the 1st Respondent occurring at page 185 (1) of the Record of Appeal, averred in paragraph 4 as follows: 'That I do state the Plaintiffs do not have and have not had at any time in their possession custody or power the specific or particular documents or classes of documents mentioned in paragraph 6 of the affidavit of 11th August 2017 except those which were filed before Court and more so contained in further and better Plaintifjs list." Dissatisfied with the Respondent's position, the Appellants relaunched the application for an order for a further and better list of documents and discovery of particu Zar documents and production for inspection by summons and affidavit in support dated 16th October, 2020. The affidavit in opposition was filed into Court on 9 th December, 2020 by which the Respondents re-iterated R26 their earlier position that they had disclosed all the documents in their possession, custody or control. To the re-launch of the application as stated in paragraphs 7.18 and 7.19 above, the learned Judge responded that the issues were res-judicata and abuse of court process and dismissed it accordingly with costs. In view of what we have earlier said above about the applicability of the doctrine of res-judicata to interlocutory matter, we are of the view that Order 24 rule 7(2) of the Rules of the Supreme Court 1999 edition does not give licence to a dissatisfied party to keep renewing the application before the same Judge in perpetuity. Sub-rule (2) is very clear, firstly, it is discretionary and secondly, it allows for subsequent and not multiple applications after the first one.' 8.8 In addition to the above said background as summ arized in our earlier appeal Judgment between the parties, we add th at in that appeal, one of the grounds of appeal that we determined was the issue of repeated applications for discovery of documents. Ground 2 of the appeal in particular was couched as follows: 'the learned puisne judge erred in law and fact when she found that the Appellants application was res-judicata R27 and an abuse of Court process in circumstances where Order 24 rule 7(2) of the Rules of the Supreme Court of England 1999 edition (White Book) permits repeated applications until discovery is given by the opposite party ... ' 8. 9 Having been unsuccessful on appeal in the above matter on account of res judicata, the Applicant now seeks leave of this Court to appeal to the Supreme Court on the basis that the appeal raises an important issue of law, particularly around the procedure and jurisprudence of how a party which refuses to disclose documents in its custody ough t to be treated. While we agree in principle, that the question on procedure around discovery and production of documents during trial is an important issue of law, we are of the view that there are no compelling reasons for the Supreme Court to clarify as there are no lacunaes in the provisions relating to procedure around discovery and production of documents in Court. In the Applicant's first application made on the 11 th Au gust in the Court below, the Applicant made a general request for production and discovery of wide r anging documents, following which the Respondents complied by filing a further list of documents in th eir custody. The Applicants were not satisfied with the documents produced and applied to dismiss the Respondent's action. The lower Court instead, gave a 10 days extension to the Respondents to comply with the provisions of Order 24 rule 7(2) following which the Respondents complied by filing an affidavit dated 14th July 2020 aforesaid in which R28 they deposed that they did not have in their possession, custody or power, the specific or particular documents or class of· documents requested by the Applicant. By this procedure, the Respondents had complied with the procedure for production and discovery of documents but the Applicants went ahead to make another application with an attempt to make the Respondent file further documents and the trial Court and this Court viewed such subsequent application as res judicata. 8.10 Based on the foregoing, we are settled that the circumstances of this case are such that the Court below adequately guided that the procedure and the method employed by the Applicants was an abuse of Court process as the Applicants had been bringing their grievances in piecemeal thereby rendering their subsequent application res-judicata. There is thus no point of law of public importance warranting consideration by the Supreme Court as envisaged under Section 13(3) CAA other than an attempt by the Applicant to disguise a well settled matter all the way to the apex Court. 8.11 We had earlier guided in the appeal decision between the parties that Order 24 rule 7(2) RSC does not give licence to a dissatisfied party to keep renewing the same application in perpetuity as the provision is discretionary and could only be used for subsequent applications for better list and discovery. R29 8 .12 In our. earlier decision, we concluded that the doctrine of res judicata applied to both continuing proceedings before the same Judge or fresh causes before a different Judge. In the circumstances, we find no reason to allow the Applicant's motion for leave to appeal to succeed. 8.13 We repeat the holding of the Supreme Court in the case of Mpongwe Farms Limited v Dar Farms and Transport Limited6 where it was categorically stated that the doctrine of res-judicata does not consider the correctness or otherwise of the decision but whether the issue was determined. 9.0 CONCLUSION 9.1 For the foregoing reasons, the Applicant's application for leave to appeal to the Supreme Court for Zambia is unsuccessful. We award costs to the Respondent to be paid forthwith by agreement and in default to be taxed. C. F. R. Mchen a DEPUTY JUDGE PRESIDENT ~-~ . COURT OF APPEAL JUDGE . ~~a rp e -Ph i i~ COURT OF APPEAL JUDGE R30