Finsbury Investments Limited v Antonio Ventriglia and Ors (Application No. 75/2021) [2023] ZMCA 376 (23 November 2023)

IN THE COURT OF APPEAL Application No. 75/2021 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: FINSBURY INVESTMENT LIM COURT OFIP APPELLANT F AND 23 NOV 2023 ANTONIO VENTRIGLIA \CLER °(;OURT 1ST RESPONDENT MANUELA VENTRIGLIA (cid:9) 50067, WB 2ND RESPONDENT RAJAN LEKHRAJ MAHTANI 1ST ALLEGED CONTEMNOR PHESTO NDOLOLO MUSONDA 2ND ALLEGED CONTEMNOR JIMMY KALUNGA 3 ALLEGED CONTEMNOR CORAM: KONDOLO SC, NGULUBE, BOBO-BANDA JAA On 911 March 2023 and 23rd November, 2023 For the Appellant Mr. J. Sangwa, SC of Messrs Simeza Sangwa & Associates and Mr. D. Chakoleka of Messrs Mulenga Mund as hi For the Respondents: Mr. S. Mambwe & Mr. A. Siwila of Messrs Mambwe, Siwila & Lisimba, Advocates, Mr. C. Sianondo of Malambo & co. and Mr. K Khanda of central chambers R U L I N G ON NO CASE TO ANSWER M. KONDOLO delivered the ruling of the Court; CASES REFERRED TO: 1. Hamsworth v Hamsworth [1987] 3 ALL ER 816 2. Chiltern District Council v Keane [1985]. (cid:9) (cid:9) R2 of 23 3. BP Zambia Plc v Yuyi Mubita Lishimwa & Others SCZ/ 72/2007 4. Mander v Falke [1891] 3 Ch. 488 5. Mwewa Murono v The People (2004) ZR 207 6. The People v The Principal Resident Magistrate Ex Parte Faustin Kabwe and Aaron Chungu (2009) ZR 170; SCZ/ 17/2009 LEGISLATION REFERRED TO: 1. The Supreme Court Rules, White Book, 1999 Edition 1. BACKGROUND 1.1. The Applicants moved the Court against the alleged Contemnors for an order of committal for contempt. The application was made pursuant to Order 52 rule 4 sub-rule 1 and Order 45 Rule 5 (b) (iii) of the Rules of the Supreme Court (White Book) and The Inherent Jurisdiction of this Court together with all Enabling Provisions of Law. 1.2. They were accused of disobeying the exparte order issued by this Court on 4th December, 2020. The exparte order stayed execution of the ruling of a single judge of this Court dated 29th March, 2019. The inter partes hearing is yet to be heard. R 2 of 23 1.3. The contempt proceedings commenced with the Respondents R3of23 calling 4 witnesses. 2. SUMMARY OF APPLICANTS EVIDENCE 2.1. The Applicants' first witness Godfrey Chonde (PW1) told the Court that he is a Satellite Trucking Supervisor for Miloto Transport situated at Zambezi Portland. 2.2. He testified that on 26th November, 2021 he was informed of fracas and pandemonium at the main gate which seemed likely to result in damage to property and vehicles. 2.3. PW1 Proceeded to use cameras to view and record what was going on and he saved the images on a memory stick ("AV2"). 2.4, The flash drive was played in Court and he identified one of the individuals in it as Jimmy Kalunga (3rd Alleged Contemnor AC3) in the midst of an angry crowd and seemed to be discussing with the police and some other individuals. 2.5. PW1 further showed the court a still image in which he identified Phesto Musonda (2nd alleged Contemnor AC2) speaking to the press outside the gate of Zambezi Portland. 2.6. Further images showed the angry mob trying to break into the premises and also showed a person with a bleeding wound inflicted on him during the commotion. R3 of 23 R4 of 23 2.7. The second witness was the chief security officer at Zambezi Portland Cement (PW2) who told the Court that he was informed that there were some people at the gate who wished to speak to him. 2.8. He went to meet them and they introduced themselves as Phesto Musonda (AC2) and Jimmy Kalunga (AC3) the Chief Executive Officer (CEO) and the Deputy CEO respectively, of Zambezi Portland Cement. They instructed him to open the gate as they had come for work. AW 1 told them that there was a Court order so they couldn't enter the premises. 2.9. PW2 Told the Court that there was a large crowd causing confusion and a crowd gathered after AC3 raised his voice. After a discussion, the officer in charge of the police guarding the plant asked AC2 and AC3 to leave. 2.10. PW3 was Osward Musonda a sales executive security officer employed by Zambezi Portland Cement. He was informed that there were people outside the gate and he went there and found AC2 and AC3 talking to PW2. 2.11. PW3 was taking photographs and AC3 asked who he was and PW2 identified him whereupon AC3 told him that he would be the first to be fired once they came in. R4 of 23 R5 of 23 2.12. He later saw A2 and A3 talking to a police officer in the office and later came out and drove away. 2.13. PW4 was Danielle Ventriglia the operations director at Zambezi Portland Cement and he stated that the 1st and 2nd Respondents were his parents. 2.14. He stated that on 16th November, 2022 the branch Manager of First Alliance Bank informed him that a document signed by Mr. Rajan Mahtani (AC 1) had been delivered to the bank instructing the bank to change signatories to both Kwacha and US$ accounts held with the bank. 2.15. The branch manager told PW4 that when he enquired from the banks' head office how they should proceed, he was advised to block the account until things were resolved. 2.16. Upon enquiry, PW4 was furnished with a printout from the PACRA showing that the shareholding structure of Zambezi Portland Cement Limited had been changed from his parents' names to Finsbury Investments Ltd (Appellant) and Italterazo Limited whisit himself, his parents and Mr. G. Litana's names had been changed to names he could not remember. R5of23 R6 of 23 2.17. He was shown the new list of directors (AV3) and the letter from AC3 to the Bank (AV6). He explained that the letter referred to a Court of Appeal Judgment and to a confirmation from PACRA. 2.18. He testified that the blocking of the account disrupted business as both outward and inward business could not be conducted. Some customers were asking for refunds and they could not pay ZRA and ended up paying a penalty fee causing the company a lot of embarrassment. 2.19. PW4 was asked in cross examination who the shareholders were in that moment and he stated that it was his parents and the current directors were himself, his parents and Mr. Litana. He added that VAT was paid on the 16th of every month, 2.20. In re-examination PW4 explained that after intervention from his lawyers PACRA reverted the documentation to the status quo [ante] as the case was still pending before the Court of Appeal. He said the process took about 5 days. 2.21. The matter was adjourned for submissions on No Case to Answer, R6of23 R7of23 3. NO CASE TO ANSWER SUBMISSIONS 3.1. Alleged Contemnors Submissions 3.2. Counsel for the alleged contemnors filed undeniably illuminating submissions which were also quite verbose and frequently repetitive out of which we shall repeat only the salient parts. 3.3. The Alleged contemnors commenced their arguments by submitting that, when the Applicant's witnesses have concluded testifying, an alleged contemnor has the right to make submissions on whether or not he has a case to answer. Several cases were cited in this regard. 3.4. It was submitted that the contempt proceedings against the Alleged contemnors be dismissed because the essential elements of civil contempt had not been established namely that; a. The Applicants failed to prove that the ex parte order of 4th December 2020, had the requisite penal notice. b. The Applicants failed to prove that the ex parte order of 4th December 2020, which is alleged to have been disobeyed by the Respondents, was R 7 of 23 R8of23 served on the Respondents and that the Respondents had full knowledge of what was prohibited by the said order. c. The allegations against the Respondents, contained in the Notice of Motion for contempt dated 31s' December 2021, are not clear. d. The Applicants failed to prove that the Notice of Motion for committal dated 311t December 2021, was served on the Respondents; and e. Further or in the alternative, the Applicants failed to prove the allegations contained in the Notice of Motion of 31st December, 2021. 3.5. The Penal Notice & Service of the Ex Parte Order of 4k" December, 2020 3.6. We shall not rehash the arguments under this head for reasons that shall be explained in our decision. 3.7. Lack of Clarity of the Grounds For Committal in The Notice Of Motion 3.7.1. It was submitted that it was not enough to explain the nature or particulars of the grounds for committal in the R8 of 23 R9 of 23 supporting affidavit because they must be contained within the four corners of the Notice. That setting out the grounds in the affidavit was in breach of the rules as it is mandatory for the grounds to be clearly spelt out in the Notice. 3.7.2. Several English cases were cited including the case of Hamsworth v Hamsworth (') and Chiltern District Council v Keane (2) 3.7.3. The Alleged contemnors also cited the case of BP Zambia Plc v Yuyi Mubita Lishomwa & Others (3) where the Supreme Court stated that the Court is not moved by the affidavits or skeleton arguments but by the notice of motion or summons. 3.8. The Applicants failed to prove that the Notice of Motion for committal dated 311t December 2021, was served on the Respondents; 3.8.1. Under this head, it was submitted that in the case of an application for committal, personal service of the notice of motion is mandatory. 3.8.2. The Alleged contemnors relied on Order 52, Rule 4 (2) RSC which states that evidence of personal service must be provided. The case of Mander v Falke (4) was cited to R 9 of 23 RiO of 23 reinforce the argument. It was submitted in this regard that the mere appearance of an alleged contemnor was not a waiver of failure to serve documents on him. 3.9. The Applicants failed to prove the allegations contained in the Notice of Motion of 311t December, 2021. 3.9.1 It was submitted in relation to AC that PW4 who testified in relation to the PACRA documents did not state that it was AC 1 who caused the Registrar to make changes to the list of directors at PACRA. 3.9.2 It was further observed that the ruling of the single judge of 29th March 2019 and the expar'te order of 4th December 2020 which allegedly stayed the ruling of 19th March 2019 and is alleged to have been disobeyed were not produced in Court. It matters not that the order and ruling are sitting somewhere in the record but contempt proceedings stand on their own and the ruling and order constituted evidence which should have been produced. 3.9.3 The Alleged contemnors submitted that PW4 did not explain why the changes to the shareholding complained of, which were sanctioned by the order of the single judge R 10 of 23 R11 of 23 of 29th March, 2019 amounted to a breach of the Order of 4th December, 2020. 3.9.4 It was argued that the alleged contemnors could not be committed to prison simply because they held a different opinion of from the Applicants on the effect of the exparte order of 4th December, 2020 on the Order of the single judge of this Court of 29th March, 2019. 3.9.5 With regard to AC2 and AC3 it was submitted that no evidence was led against them. 3.9.6 The Alleged contemnors concluded by stating that, "The contempt proceedings are designed to secure compliance with the decisions of the Court. However, in this case a finding that the Respondents have a case to answer will transform contempt proceedings into an instrument of harassment." 4. APPLICANTS' SUBMISSIONS IN REPLY 4.1. The Applicants addressed the issues raised by the Alleged contemnors in the following manner; 4.2. The Applicants failed to prove that the ex parte order of 4th December 2020, had the requisite penal notice. R 11 of 23 R12of23 4.2. 1. The Applicants response to this was that this issue was exhaustively addressed by a full panel of this court in parallel contempt proceedings involving most of the same parties, under application number 48 of 2021. 4.2.2. Secondly, that the alleged contemnors could not be served with the ex parte order as they are natural persons and only agents of the Appellant in the appeal and their actions had been advancing the interests of the Appellant Company. 4.2.3. We were urged to stand by this Court's ruling of 8th September, 2022. 4.3. The allegations against the Respondents, contained in the Notice of Motion for contempt dated 31st December 2021, are not clear. 4.3.1. It was submitted that, AC being Chairman of the Appellant Company sought to perfect the single judge's order of 29th March, 2019 and caused the register of the members of Zambezi Portland Cement Limited as well as the list of directors to be altered. R 12 of 23 R13 of 23 4.3.2. That the details of the dictates of the single judge's order are contained in the grounds upon which the motion was sought. 4.3.3. With regard to AC2 and AC3 it was submitted that the particulars of the motion were clearly set out in the Motion. 4,3.4. That in the company of organized thugs, they attempted to enter the premises of Zambezi Portland Cement for the purpose of taking over management at the said institution. 4.3.5. That they have been put to good notice and evidence was led to support the allegations against them as they had even been appointed as CEO and Deputy CEO. 4.3.6. It was submitted that the single judge's order of 29th March 2019 emanated from the ruling of 29th March 2019 and could therefore not stand on its own. That a stay of the ruling automatically stayed the Order. R 13 of 23 I R14 of 23 4.4. The Applicants failed to prove that the Notice of Motion for committal dated 31st December 2021, was served on the Respondents 4.4.1. It was submitted that personal service was actually effected on AC 1 who acknowledged receipt by letter dated 3rd January, 2022. 4.4.2. That AC2 and AC3 were served by the Ndola subordinate Court on 5th January, 2022. 4.5. The Applicants failed to prove the allegations contained in the Notice of Motion of 3111 December, 2021. 4.5. 1. It was submitted that sufficient evidence had been led to find the alleged contemnors with a case to answer. 4.5.2. The case of Mwewa Murono v The People (5) was cited where it stated that; "A prima Fade case does not mean proving each and every ingredient of the offence charged, if there is evidence to prove one element, then there is a prima facie case." 4.5.3. It was finally submitted that not placing the alleged contemnors on their defenses will materially turn a blind eye on their alleged breaches of this very Court's Order R 14 of 23 / and the abuse and harassment that was occasioned at Zambezi Portland Cement Limited by their actions. R15 of 23 S. ALLEGED CONTEMNORS REPLY 5.1. The Alleged contemnors' reply stated that this Court's decisions in application No. 48 of 2021 were per incuriam and nothing prevents this Court from revisiting them on the basis of the alleged contemnors' submissions in casu. 5.2. We shall not reproduce the very detailed arguments advanced by the alleged contemnors but take note of them. 6. DECISION AND ANALYSIS 6.1. We have considered the well-researched arguments advanced by the parties. 6.2. We earlier on indicated that we would not rehash the Appellants submissions on the questions of the lack of a penal notice being displayed on the Order of 4th December, 2020 and the alleged lack of proof that the said Order was served on the contemnors. 6.3. The Appellant stated that these two issues were in fact dealt with and determined as a preliminary issue in a ruling R 15 of 23 R16 of 23 delivered by Chashi J on 8th September, 2022 under application No.48 of 2022. 6.4. We note that the contempt proceedings addressed in the said application are a near mirror image of the matter before this Court in that the alleged contempt, with regard to the alleged assault on the premises of Zambezi Portland Cement Limited arose from the same set of facts and the alleged breach of the same order. The matter was determined with finality by the said ruling of 8th September, 2022. 6.5. Counsel for the Respondents expressed surprise that the alleged contemnors were revisiting these arguments and submitted that they should have appealed the ruling of 8th September, 2022. 6.6. The Alleged contemnors on the other hand accepted that they had not exercised their right of appeal. It was however submitted, that was basically water under the bridge, which they could not revisit but nothing prevented them from revisiting the arguments because the legal position arrived at by this court on the subject issues were per irtcuriam. 6.7. The Alleged contemnors opined that this matter was independent from the matter before the panel led by Chashi R 16 of 23 R17 of 23 J as it was a different case. That nothing prevented this Court from revisiting and correcting its earlier decisions where it agreed that they were made per incuriam. It was opined that this was one such instance where this Court had not taken the law into account and ended up incorrectly exercising its discretion when it obviated the requirement for a penal notice and dispensing with personal service. 6.8. Having considered the arguments advanced by the Alleged contemnors, we hold the view that the ruling of 81h September, 2022 was on terra firma and not per incuriam at all and we do not intend to revisit the two issues. 6.9. On the issue of the Notice of Motion not clearly stating the grounds for committal we would say that this submission is quite startling because over and above this issue equally having been determined by the ruling of 8th September, 2022, the Notice of Motion filed on 31st December 2021 cannot be any clearer than it was. The notice was supported by an affidavit which put the grounds listed in the notice in perspective by exhibiting relevant documents as well as soft copies of video evidence. R 17 of 23 IV R18 of 23 6. 10. In the case of BP Zambia Plc v Yuyi Mubita Lishomwa & Others SCZ/72/2007 cited by the Alleged contemnors, the issue raised was that the notice did not conform to the rules which required the grounds to be stated in the notice but the Applicant had instead stated as follows; "AND TAKE FURTHER NOTICE that the grounds for this application are contained in the affidavit in support filed herewith." 6.11. The circumstances in the above cited case are completely different from those in casu where the notice actually lists the grounds upon which this Court was moved. 6.12. We would borrow from the case of Hamsworth v Hamsworth (supra) cited by the Alleged contemnors where Lord Woolf said as follows; "I only give a short judgement of my own to emphasise one point and draw attention to two other points. What I would emphasise is that in proceedings for contempt the court should always have in mind the fact that the liberty of the subject is involved. However, it should not allow that fact to produce a result which R 18 of 23 / unnecessarily makes a mockery of justice." (emphasis ours) R19 of 23 6.13. We opine that it would be nothing short of a mockery of justice to insist, in these circumstances, that the alleged contemnors were not sure of the charges they were facing. 6.14. On the issue of whether or not enough evidence has been led to put the alleged contemnors on their defence, we shall begin by referring to the case of The People v The Principal Resident Magistrate Ex Parte Faustin Kabwe and Aaron Chungu (6) in which, incidentally, the accused persons were represented by State Counsel Mr. J Sangwa now representing the alleged contemnors herein. Sakala CJ delivered the decision of the Court as follows; "The applicants appealed against the ruling of the High Court. In Zambia, the procedure to be followed in criminal matters is set out in the Criminal Procedure Code CAP 88 of the Laws of Zambia, Section 206 of the code reads: '206. If at the close of the evidence in support of the charge, it appears to the Court that a case is not R 19 of 23 R20 of 23 made out against the accused person sufficiently to require him to make a defence, the Court shall dismiss the case, and shall forthwith acquit him.' The use of the phrase 'If (cid:9) it appears to the Court' in the section is not without any significance. The learned Principal Resident Magistrate in his Ruling was '. satisfied that the prosecution has made out a prima facie case on each one of the counts....' The expression 'prima facie is from Latin. According to various English Dictionaries, among many others, the expression means: on its first appearance; by first appearance; by first instance; at first view; on its face; the first flush; and from first impression. We agree with the submission by the Solicitor General that there is no requirement under section 206 of the Code that the Court must give reasons for acquitting an accused person; that it must merely appear to the Court. The converse, therefore, must also be true that where the Court finds an accused with a case to answer, it must merely appear to the Court that a case has been made out against the accused. R 20 of 23 R21 of 23 In our considered view, a findinq of a case to answer is based on the Court's feeling or impressions and appearance of the evidence. But above all, the finding if a prima facie case is not a final verdict. In the case of Harrison v Department of Security (3), (Also cited in Archbold page 407, 1999 ed) the Court stated: 'Magistrates are not obliged to give reasons for rejecting a submission of no case to answer' We agree with this proposition of the law because a finding of a case to answer is not a final verdict. However, a finding of no case to answer is a final verdict and therefore a Magistrate would be required and obliged to give reasons...." (emphasis ours) 6.15. Reverting to the case at hand, according to PW3, AC2 and AC3 informed him that they were CEO and Deputy CEO, respectively of Zambezi Portland Cement Limited. They could only have assumed such purported positions by being appointed by the directors of ZPC who were aware of the order. The evidence shows that AC2 and AC3 were embedded with a trouble making crowd and a prima facie case against them is apparent. R 21 of 23 R22of23 6. 16. PW4 informed the Court that AC 1 wrote a letter to First Alliance Bank which crippled the operations of ZPC. AC 1 is the Chairman of the Appellant company and the letter was written within a short period of the changes being effected at PACRA in apparent defiance of the ex parte Order of 41h December, 2022, 6.17. The alleged contemnors state that ZPC is not mentioned anywhere in the ex parte Order of 4th December, 2022 but the fact remains that control of ZPC was a key element of this litigation. The effect of the Ruling of 29th March 2019 was to transfer control of ZPC but the ex parte order of 4th December, 2020 stayed the said Ruling and maintained the status quo until the inter partes hearing. 6.18. The arguments advanced by the alleged contemnors trying to differentiate between the Ruling and Order both of 29t March, 2019, is a classic case of splitting hairs and is really neither here nor there, because the meaning and import of the ex parte order was quite clear and uncomplicated. R 22 of 23 R23 of 23 6.19. In the premises it is our feeling and inclination that a prima facie case has been established against AC 1, AC2 and AC 3 and they are consequently found with a case to answer for contempt of Court for disobeying the ex parte order of this court dated 4th December, 2022. M. M. KONDOLO, Sc COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE (cid:9) A. M. BANDA-BOBO COURT OF APPEAL JUDGE R 23 of 23 (cid:9)