Burden Mfungwe and Anor v Yota International Limited (Application No. 02,03/2021) [2021] ZMCA 280 (23 March 2021)

IN THE COURT OF APPEAL OF ZAMBIA Application No. 02,03/2021 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: BURDEN MFUNGWE ROBERT MFUNGWE (As a Estate of Meckwello Mfungwe) AND APPELLANT INTENDED INTERESTED PARTY YOTA INTERNATIONAL LIMITED 1 ST RESPONDENT MOSHEN ZABAD HAIDER 2ND RESPONDENT IRFAN SOLEMAN NARBHANDHI 3RD RESPONDENT Mchenga DJP, Majula and Siavwapa, JJA On 15th March, 2021 and 23rd March, 2021 For the Appellant For the Intended Interested Party Mr. B. Mosha of Mosha & Co. Mr. W. Mwandila of OMM Banda & Co. For the 1s t Respondent Ms. K. Mwila of Tutwa S. Ngulube & Co. For the 2 nd Respondent Mr. C. Sianondo of Malambo and Co. RULING MAJULA JA, delivered the Ruling of the Court Case referred to: R2 1. Konkola Coppermines PLC vs Nyambe & Others CAZ NOM 58 of 2018 2. R vs Secretary of State for Trade and Industry Exp parte Eastaway (2001) 1 ALL ER 27 3. Fratelli Locci Sr. Estraxion Minesal ' vs Road Development Agency (SCZ Application No 8/ 06/ 2019) 4. Savenda Management Services Limited vs Stanbic Bank (Z) Limited (SCZ Selected Judgment No 10 of 2018) 5. Kekelwa Samuel Kongwa and Meamui Georgina Kongwa (SCZ/ 8/5/2019) Legislation referred to: Court of Appeal Act, No 7 of 2016 1.0 PRELUDE 1. 1 This is an application for leave to appeal to the Supreme Court as well as for joinder of the Intended Interested party. We shall first deal with the application for leave to appeal to the I i Supreme Court. 2.0 APPLICANT'S CASE 2 .1 In the affidavit in support of this application sworn by Burden Mfungwe, he deposed that on 26 th January 2021, the Court of Appeal delivered a judgment concerning Stand No. 33323, Lusaka which was in favour of the respondents. That being R3 dissatisfied with the judgment, he is desirous to appeal to the Supreme Court. 2.2 In the written arguments filed in support of the application for leave to appeal, Mr. Mosha submitted that the intended appeal has raised legal questions that are of public importance in line with section 13(3) of the Court of Appeal Act. 2.3 It was contended that the applicant has also demonstrated reasonable prospects of success. To reinforce his arguments, the case of Konkola Coppermines PLC vs Nyambe & Others1 was called in aid in where we held inter alia that the intended appeal must reveal reasonable prospects of success and it must raise points of law of public importance. 2. 4 It was argued in conclusion that in view of the fact that stand 33323 Lusaka was sold without the consent of the High Court, the Supreme Court will have an opportunity to guide on the law and will look at whether a property can be sold without the legal requirement for the consent of the High Court in certain instances. He went on to argue that the court will consider the administration of estates and 1n particular section 19(2) of the Intestate Succession Act. 3.0 RESPONDENT'S CASE 3.1 The respondent's opposed the application and to this end, an affidavit in opposition sworn by Irfan Suleman Narbhandhi was filed on 16 th February 2021 together with skeleton R4 arguments. The gist of his evidence is that the contract of sale and the certificate of title (exhibits ISN 1 (a) and (b)) show that the applicant sold the property as a registered owner. That there is, therefore, nothing new that the intended appeal will bring as all issues pertaining to the contract of sale were considered by this Court. 3.2 It was contended that the intended grounds of appeal do not disclose any prospects of success to warrant a grant of leave to appeal. 3.3 In the skeleton arguments filed in opposition Mr. Sianondo submitted that before leave to appeal is granted by this court it is important to understand the role of the Supreme Court in the dispensation of justice. To emphasize his point Mr. Sianondo adverted to the case of R vs Secretary of State for Trade and Industry Exp parte Eastaway2 where Lord Bingham of Cornhill made the following comments: 3.3.1 «In its role as a supreme court the House must necessarily concentrate its attention on a relatively small number of cases recognised 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." 3.4 Counsel argued that the Court of Appeal 1s therefore positioned as a filtering process to ensure that only appeals RS which raise issues of jurisprudential importance are allowed to proceed to the Supreme Court and not appeal which merely seeks to correct errors in the application of settled law. 3.5 He submitted that in casu, the intended appeal does not fit into the criteria upon which leave to appeal must be granted on the basis that the law is settled in matters of contract and land law. 3.6 On the basis of the foregoing arguments, counsel urged us to dismiss the application for leave to appeal to the Supreme Court. 4.0 HEARING OF THE APPLICATION 4. 1 When the m a tter came up for hearing of the application on 15th March 2 021, counsel intimated that they would place reliance on the documents that were filed in support of their respective positions. Brief oral submissions were made to augment. 5.0 DECISION OF THE COURT 5.1 We have considered the applications, affidavit evidence, and the rival arguments by the learned counsel. It is important to understand a t the outset that appeals to the Supreme Court are no longer a matter of right. Leave must be sought and granted by the Court of Appeal before an applicant can file an appeal. This position is in line with section 13( 1) of the Court of Appeal Act and was authoritatively restated by the Supreme R6 Court in the case of Fratelli Locci Sr. Estraxion Minesal vs Road Development Agency3 where it was observed: 5.1.1 ((Appeals to the Supreme Court are now no longer a matter of right. Leave must be sought from the Court of Appeal, and if not granted by that court, from a single judge of this court." 5.2 The rationale for restricting appeals to the Supreme Court was eloquently elucidated in the case of Savenda Management Services Limited vs Stanbic Bank (Z) Limited4 where it was stated thus: 5.2.1 ((The resources of the courts are overstretched and if it were otherwise the doors of justice would be open to busybodies whose only aim is to delay the inevitable execution of a judgment. .. " We surmise, in this regard, that only weighty issues 1n the most deserving of cases should be relegated to the court of last resort. 5.3 Be that as it may, the circumstances under which leave to appeal to the Supreme Court can be granted are set out 1n section 13(3) of the Court of Appeal Ac,t. This section enacts as follows: 13. (3) considers that- The Court may grant leave to appeal where it (a) the appe al raises a point of law of public importance; R7 (b) N/ A; the appeal would have a reasonable prospect of success; (c) or there is some other compelling reason for the appeal to be (d) heard. 5.4 On the meaning of a point of law of public importance , we have applied our minds to the authority of Kekelwa Samuel Kongwa and Meamui Georgina Kongwa5 where it was observed: 5.4.1 « .. . 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 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. " 5.5 We have painstakingly scrutinized the' intended grounds of appeal and we are of the considered view that the legal points under section 19 of the Intestate Succession Act which the appellant intends to raise were adequately addressed in our judgment. The law is settled on this matter and there 1s nothing of public importance that has been demonstrated to require the appeal to be elevated to the apex court. R8 5.6 We also do not have any trepidation in holding that there 1s neither a reasonable prospect of success of the intended appeal nor are there any compelling reasons for leave to be granted. 5.7 We accordingly find that the appellant has not met the threshold required for him to be granted leave to appeal to the Supreme Court as set out in section 13(3) of the Court of Appeal Act. The application is accordingly dismissed for lack of merit. 5.8 Turning to the application for joinder, it follows that since the application for leave to appeal has failed, it would be otiose to deal with the arguments in relation to this application. In a nutshell, both applications are dismissed. 5. 9 Costs follow the event, to be taxed if not agreed. C. F. R. Mchen a DEPUTY JUDGE PRESI ·············~P . .................. . B ,.-i,i ~ ~jula COURT OF APPEAL JUDGE ................ J ......................... . M. J. Siavwapa COURT OF APPEAL JUDGE