Chillerton Group Limited v Rudra Copper Limited (CAZ/08/291/2025) [2025] ZMCA 142 (26 November 2025)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/29 1/2025 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 2NOV 2025 CHILLERTON GROUP LIMITED APPLICANT AND RUDRA COPPER LIMITED RESPONDENT CORAM: Honourable Mr. Justice Justin Chashi, JA in Chambers ON: 26th November 2025 For the Applicant: (1) M. Mwenye, SC and E Mwitwa, Messrs Mwenye Mwitwa Advocates (2) L. Mwamba and B. Stephen, Messrs Mwamba & Milan Advocates (3) 0. Sambo, Messrs Emmanuel & Onesimus Legal Practitioners For the Respondent: (1) L. T. Chilinda (Mrs), Messsrs James & Doris Legal Practitioners (2) P. Banda (Ms), Messrs G. M Legal Practitioners RULING Cases referred to: 1. Zambia Consolidated Copper Mines Investment Holdings Plc V Muyangwa Mufalali & 141 Others -SCZ Appeal No. 238 of 2013 2. John Mukoma Kasanga & Others v Development Bank of Zambia & Others - CAZ Appeal No.s 59 of 2020 and 970f 2019 F L!111111 -R 2- 3. Magnum (Zambia) Ltd v Basit Quadri (Receivers/Manager) & Another (1981) ZR, 141 4. Robert Mbonani Simeza (Sued in his capacity as Receiver/Manager) & Another v Ital Terrazo Limited - SCZ Appeal No. 244 of 2022 5. TIB Development Bank Limited & Another v Box Board Tanzania Limited & Others - Misc. Civil Application No. 165 of 6. Julian Adoyo Ongunga v Francis Kiberenge Abano Migori - Civ Appeal No. 119 of 2015 7. Aristogerassimos Vengelatos & Another v Metro Investments Limited & 3 Others - SCZ Selected Judgment No. 35 of 2016 Rules referred to: 1. The Supreme Court Practice (White Book) 1999 1.0 INTRODUCTION 1.1 The Applicant herein, on 201h June 2025, filed an application in this Court, for stay of execution of a default Judgment, which was entered in the court below on 171h June 2025, pending an application to set aside the said default Judgment. -R 3- 1.2 The application was made pursuant to Order 59/14 (3) of The Rules of the Supreme Court (RSC) and was accompanied by an affidavit and skeleton arguments. On 28th June 2025, I granted an ex parte order for stay of execution, pending inter partes hearing. 1.3 Before I could hear the parties on the aforestated application, the Applicant on 9th July 2025, filed a notice of motion to raise a jurisdictional issue. 2.0 PRELIMINARY ISSUE 2.1 The preliminary issue was raised pursuant to Order 59/14 (4) RSC and it was for the determination of the following issue: "Whether the High Court has jurisdiction to make any orders including the Judgment in default in view of the fact that the Respondent herein is in Receivership." 2.2 The notice was accompanied by an affidavit and skeleton arguments. According to the Applicant, this issue was raised in the court below and the court refused to hear the application, because there was already a default -R 4- Judgment. That the jurisdictional issue has not been heard and the lower court's position is that it is improperly before it, since it was filed before the filing of a defence. 2.3 The Applicant averred that given the aforestated, there are special circumstances justifying the raising of the issue before this Court. That a jurisdictional issue can be raised at any stage and before any court, in which an order made without jurisdiction is being discussed. 2.4 It was further averred that the issue raised is anchored on the fact that the Respondent has sued in its own name and capacity when in fact it is in receivership. The Applicant produced and exhibited the notice of appointment of Receiver and the PACRA print out to that effect. 2.5 According to the Applicant, there are special circumstances, which make it impracticable to apply or maintain the issue of jurisdiction in the court below, as the court has declined or refused to hear the application. It was contended that the issue of jurisdiction can be raised at any stage in the proceedings, even before this Court. -R 5- 2.6 The Applicant relied on the case of Zambia Consolidated Copper Mines Investment Holdings Plc v Muyangwa Mufalali & 141 Others,' where the Supreme Court held as follows: "The legal position that an issue not raised before a trial court cannot be raised for the first time on appeal does not apply where the issue is one questioning the very authority or jurisdiction of the court to have heard the matter, in the first place, for in the absence of jurisdiction to hear the matter, the ensuing decision is a complete nullity and no appeal can be against it on the merits." 2.7 It was the Applicant's submission that a court cannot ignore an issue of jurisdiction raised on its record, because it goes to the root of the whole matter even as it relates to collateral proceedings. 2.8 The Applicant further submitted that, it is trite law that a company in Receivership has no locus standi to bring an action independent of its Receiver. Reference was made to -R 6- the case of John Mukoma Kasanga & Others v Development Bank of Zambia & Others2, where the Court of Appeal held that: "The day to day operations of the company are under the sole control of the Receiver and manager who also assumes the power to sue and to be sued on behalf of the company." 2.9 Further reliance was placed on the case of Magnum (Zambia) Ltd v Basit Quadri (Receiver/Manager) & Grindlays Bank International Zambia Ltd', where it was held as follows: "A company under receivership has no locus standi independent of its receiver. As long as a company continues to be subjected to receivership, it is the Receiver alone who can sue or defend in the name of the company. Thus on the preliminary issue, I hold that legal proceedings in the instant case have been irregularly commenced, because in law, the plaintiff company which is under receivership is -R 7- precluded from suing its receiver/manager. Accordingly, the action in its present form is dismissed." 2.10 The position in the Magnum case has been adopted with approval by the Supreme Court in various cases, prominent amongst them the cases of Robert Mbonani Simeza (Sued in his capacity as Receiver/Manager) & Another v Ital Terrazo Limited4 and TIB Development Bank Limited & Another v Box Board Tanzania Limited & Others.5 2.11 On the effect of commencing an action without the requisite locus standi, my attention was drawn to the Kenyan case of Julian Actoyo Ongunga v Francis Kibepenge Abano Migori6, where Mrima J, stated as follows: "Further, the issue of locus standi is so cardinal in a civil matter since it runs through to the heart of the case. Simply put, a party without a locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus standi -R 8- relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a court acting without jurisdiction. Since it all amounts to null and void proceedings." 2.12 It was contended that the court has no jurisdiction to hear a matter brought by a plaintiff who has no locus standi. It was submitted that the court below has no jurisdiction to hear the matter and to make the necessary Orders. Reliance in that respect was placed on the case of Vengelatos & Vengelatos v Metro Investments Limited & Others', where the Supreme Court made the following statement: "... Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before Judgment is given. It can be discovered from the foregoing position of the law, that the absence ofjurisdiction nullifies whatever decisions follows from such proceedings..." mBa -R 9- 2.13 The Applicant prayed that the court finds that the High Court has no jurisdiction and dismiss the action before the High Court and set aside all orders made by the High Court. 3.0 ARGUMENTS IN OPPOSITION 3.1 In opposing the preliminary issue, the Respondent filed a combined affidavit in opposition to the application for stay of execution of the interlocutory Judgment in default and in opposition to notice of motion to raise jurisdictional issues. Since I have to dispose of the jurisdictional issue first, I will only recapitulate the assertions relating to the jurisdictional issues. 3.2 The affidavit was deposed to by Dr Chintu Y. Mulendema, the Receiver/ Manager of the Respondent, having been appointed on 18th June 2024. It was asserted that the proceedings were commenced on 9th May 2025, and service was effected on the Applicant. 3.3 According to the Respondent, the Applicant raised preliminary issues in the court below challenging the validity of the proceedings on the basis of want of -R 10- jurisdiction, but neglected to file its defence and appearance 3.4(cid:9) It was asserted that the Applicant only filed its defence and appearance on 17th June 2025, after a Judgment in default had been entered against it. According to the Respondent, the preliminary issue before the High Court has not yet been determined. That the reasons advanced by the Applicant for bringing this application are not special nor compelling, to justify an Order to uphold the preliminary issue, when no ruling has been rendered. 3.5 It was contended that, the application is a mere ploy to delay the court from making any progress in the proceedings and ought to be dismissed as this Court is not a court of first instance. That the application amounts to a multiplicity of actions and forum shopping. 4.0 ANALYSIS AND DECISION 4.1 I have considered the notice to raise the preliminary issue, the affidavit evidence and the arguments by the parties. The first issue I should deal with is whether there are special and/ or compelling reasons, why I should entertain -R 11- and determine the jurisdictional issue. To begin with, it is not in dispute and I agree with the Applicant that a jurisdictional issue can be raised at any stage of the proceedings either in the court below or in this court as the case is now. 4.2 I note that the jurisdictional issue was raised in the court below and the learned Judge refused to hear it, as there was a default Judgment. According to the learned Judge, he could only hear the issue if the default Judgment was set aside and the Applicant was allowed to file a defence. In my view, the approach by the learned Judge was flawed. The fact that there was a Judgment, was the more reason he should have entertained the preliminary issue as being post Judgment and not to make it precedent to the determination of the application to set aside the default Judgment. 4.3 In view of the aforestated, I am of the view that there are special and compelling reasons why I should determine the preliminary issue as the learned Judge wrongly refused to entertain the application. -R 12- 4.4 Indeed the issue is jurisdictional as it relates to locus standi. I am guided by the Magnum case, where it was clearly stated that a company under receivership has no locus staridi independent of its receiver as it is the receiver alone who can sue or defend in the name of the company. 4.5 I further note that in opposing the preliminary issue, the Respondent in its affidavit in opposition and skeleton arguments, gave a lacklustre response and did not by any means address the jurisdictional issue, which was being raised by the Applicant. 4.6 The Respondent in fact acknowledged that it is under receivership and even exhibited the deed of appointment as receiver and manager dated 18th June 2024, made long before the commencement of the action in the court below. The Respondent however makes no attempt to explain why the action was commenced in its name and not in the name of the receiver/ manager. 4.7 Given the aforestated, I resolve the preliminary issue in favour of the Applicant, that the court below had no jurisdiction to make any Orders including the default -R 13- Judgment, in view of the fact that the Respondent is in receivership. The Respondent herein has no locus standi and therefore all the proceedings in the court below are null and void. 4.8 In line with the action, which was taken in the Magnum case, the action in the court below in cause no. 2025/HK/ 134 is accordingly dismissed. Costs to the Applicant. Same are to be default of agreement. J. CHASHI COURT OF APPEAL JUDGE