Finsbury Investment Limited v Antonion Ventriglia and Anor (APPEAL NO. 117/2018; APPLICATION 80/2020; CAZ/08/126/2018) [2025] ZMCA 164 (4 December 2025)

IN THE COURT OF APPEAL CAZ/08/126/2018 HOLDEN AT NDOLA (CIVIL JURISDICTION) APPLICATION 80/2020 APPEAL NO.117 /2018 BETWEEN: FINSBURY INVESTMENT LIMITED APPELLANT AND ANTONIO VENTRIGLIA 1 ST RESPONDENT MANUELA VENTRIGLIA 2ND RESPONDENT CORAM: KONDOLO SC, NGULUBE, BANDA-BOBO JAA On the 20th day of August, 2025 and 4 th December, 2025. For the Appellants : Mr. J. Sangwa, SC. & Mr. S. Banda and Mr. C. TChongwe of Messrs Simeza Sangwa & Associates; : Mr. D. M. Chakoleka and Mr. P. Chomba of Messrs Mulenga Mundashi Legal Practitioners : Mr. P. S. Chilembo, Dr. A. Ngenda and Mr. N. Chibeleka of Messrs RASO Chambers : Mr. M. Nkunika of Messrs ZS Chambers For the Respondents: Mr. S. Mambwe and Mr. A. Siwila of Messrs Mambwe, Siwila & Lisimba Advocates : Mr. S. Sikota SC. and Mr. K. Khanda of Messrs Central Chambers : Mr. C. Sianondo of Messrs Malambo & Company RULING KONDOLO, SC, JA delivered the Ruling of the Court. • R2 of 26 CASES REFERRED TO: 1. Attorney General v Chishimba Kambwili - SCZ/8/15/2020 2. Newton Malwa & Others v Lucky Mulusa & Others (2014) 3. Hadkinson v Hadkinson [1952] 2 All ER 567 (CA) 4. Antonio Ventriglia & One Other v Finsbury Appeal No. 2 of2019 5. JCN Holdings Limited v Development Bank of Zambia (2013) 3 ZR 299 6. Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited [1989] KLR. 19 7 . Zambia National Holdings Limited & The United National Independence Party (UNIP) v The Attorney GeneralSCZ/3/1994 LEGISLATION REFERRED TO: 1. The Supreme Court Rules, White Book, 1999 Edition 2. Court of Appeal Act No. 7 of 2016, Laws of Zambia 3. Constitution of Zambia (Amendment) Act No. 2 of 2016, Laws of Zambia 1. INTRODUCTION 1.1 After considering the Appellants application (Application No. 24) ch allenging the jurisdiction of this Court in this appeal, we posed the fallowing question to the parties; • R3 of 26 "In view of the fact that our jurisdiction is in question, can this Court proceed to hear the rest of the application before the jurisdiction issue is settled?" 1. 2 This ruling arises from the said question. 2.0 BACKGROUND 2. 1 The question posed by the Court to the parties originates from a ruling of this Court on an application in which the Appellant challenged the jurisdiction of this Court arguing that the appeal was improperly before us. 2 .2 In our Ruling dated 18t h November, 2024 (application no. 75 / 2021) on an application by the Appellant, under Order 33 Rule 3 of the Rules of the Supreme Court 1965 (RSC) , we gave a historical account of this long drawn-out matter. In order to provide context, we shall reproduce part of the narration and add on to where we left off to bring it to date. 2. 3 In the main matter, the High Court decided against the Appellant who appealed to this Court and the decision of the High Court was overturned. 2.4 Following success of the Appeal, the Appellant applied for the judgment to be embodied. The Respondents took issue with the draft embodiment order proposed by the Appellant on the grounds that the sum reflecting as payable to them by the R4 of 26 Appellant was different from the sum ordered in the judgement. They further raised issue that the proposed embodiment had introduced a non-party as a beneficiary of the judgment. 2.5 The application was heard by a single Judge who on 28th December 2019 dismissed the Respondents objections, and delivered a Ruling and Order, allowing the embodiment order as proposed by the Appellant. 2.6 On 8 th April 2020, the Court granted an application by the Respondents for leave to appeal to the Supreme Court against the Judgment of 31 st January, 2019 and the Ruling and Order of 29 th March 2019. The Supreme Court on 28th October, 2020 delivered its Judgment dismissing the appeal on the ground that the Court of Appeal had lacked jurisdiction to hear the application for leave to appeal. 2.7 The Appellant reverted to the Court of Appeal, and on 29th October, 2020 moved the Court for an Order for leave to apply for an extension of time in which to apply to set aside or reverse the Ruling and Order of 29th March 2019. 2.8 The application was heard by a single Judge who, on 4 th December, 2020, delivered a Ruling stating that he had RS of 26 declined to grant an application staying his Ruling and Order of 28th March 2019 pending the hearing of an application to the full Court for an order to extend time within which to reverse or discharge his decision to refuse an order for stay. He noted that the application for extension of time was not argued. He opined that it was appropriate to have the Court consider the application for extension of time together with the application for discharge or reversal of his order. He accordingly adjourned the application for consideration by the Court. 2 .9 The same day on 4 th December, 2020 the Respondents applied to the Court, ex parte, to stay execution of the Order of 29 th March, 2019 pending the application to discharge or reverse the said Ruling and Order. The ex parte Order was granted and set for an inter partes hearing seven days later on 11 th December, 2020. 2.10 The day before the inter partes application was to be heard, the Appellant on 10th December, 2020 filed a Motion asking the Court to dismiss the Respondents application for stay of execution for want of jurisdiction. As a consequence, the inter partes hearing set for 11 th December, 2 020 did not take place. R6 of 26 2.11 We considered the application on jurisdiction and on 16th September, 2021 delivered our ruling stating that we were clothed with jurisdiction to hear the Respondents application. 2.12 On 21st September, 2021 the Respondents filed a motion moving the Court for contempt of court against the 2 n d and 3 rd alleged contemnors under application no. 48 of 2021. 2.13 On 30th September, 2021, the Appellant filed a Motion to appeal to the Supreme Court against our ruling of 16th September, 2021 on jurisdiction. 2 .14 On 31st December, 2021 the Respond en ts filed another Motion moving the Court for contempt of court, this time against the 1st, 2 nd and 3 rd alleged contemnors under application no. 75 of 2021. 2.15 On 2 nd February, 2022 , the Respondents moved the Court to stay the proceedings until after the contempt proceedings are concluded. The Respondents application was granted by an order delivered on 13th July, 2022. 2.16 The contempt proceedings commenced and after the Respondents closed their case, the alleged contemnors were found with a case to answer and put on their defence. R7 of 26 2.17 On 27th July, 2023, the Appellant filed an application under Order 33 Rule 3 of the Rules of the Supreme Court 1965 (RSC) responding to the Respondents application to stay execution of the Ruling and Order of 29 th March 2020, on points of law. The application was dismissed by our ruling of 18th November, 2024. 2.18 The contempt proceedings concluded with the alleged contemnors being convicted and the stay of proceedings imposed by our decision of 13th July, 2022 lapsed thereafter. We then returned to the proceedings which had been stayed and issued notices for two outstanding applications; 1. Application for leave to appeal our ruling on jurisdiction dated 16th September, 2021 2. The inter-partes hearing of the stay of execution granted ex-parte on 4 th December, 2020 but disrupted by the Appellants application challenging the jurisdiction of the Court. 2 .19 We heard the application for leave to appeal our judgment on jurisdiction and adjourned for ruling. We then turned to the application for stay of execution and posed the question now under consideration. R8 of 26 2.20 In the meantime, we have since granted the Appellants application for leave to appeal our judgment on jurisdiction. 3 .0 SUBMISSIONS ON THE QUESTION POSED BY THE COURT VIS-. A-VIS THE APPLICATION FOR STAY OF EXECUTION 3.1 The Respondent in the main appeal is the Applicant in this application and the Appellant is the Respondent. We shall maintain the titles by which the parties are addressed in the main appeal. 3.2 Respondents Submissions 3.3 Mr. Sikota SC , on behalf of the Respondent, submitted that all pending applications should wait for the question on jurisdiction to be settled. 3.4 Mr. Mambwe, on behalf of the Respondents, argued that the question posed by the Court was, in this very matter, settled by the Supreme Court, in its judgment following a challenge to this Court's jurisdiction by the Appellant. That it was categorically held that the Court cannot proceed any further when its jurisdiction has been challenged. 3.5 The Respondent filed skeleton arguments on 25th August, 2025 stating that the question posed by the Court hinges on R9 of 26 judicial economy and case management. The case of Attorney General v. Chishimba Kambwili 111 was cited, on where it states that the rationale of case management is based on the concern for judicial economy, which requires that Judges examine the circumstances of a case to determin e if it is worthwhile to allocate scarce ju dicial resources to resolve the moot issue. 3.6 Also cited was the case of Newton Malwa & Others v Lucky Mulusa & Others 121 where it was held that where a common question of law arises in two or more cases before the same court, the court may order any of them to be stayed until determination of any other of them. It was submitted on this authority that the Court can stay proceedings where the ou tcome of other proceedings would have a terminal effect on the stayed proceedings. That similarly, if we proceed to hear the application for stay and the Supreme Court agrees with the Appellant that this court lacks jurisdiction, our proceedings would be null and void and a com plete waste of judicial time. 3 .7 With regard to this Court hearing the contempt proceedings in the face of the Appellants challenge to its jurisdiction, the RlO of 26 Respondent offered the view that it matters not whether a court's decision is right or wrong, parties must obey the order. 3.8 State Counsel Sikota submitted in reply that the Notice of Motion filed by the Appellant under Application No. 24 was challenging this Court's ruling on jurisdiction stating that this Court had no jurisdiction. He quipped that the Appellant cannot have its cake and eat it. 3 . 9 That at the end of it all the issue of jurisdiction had not been settled, otherwise there would not be application no. 24. That in the event that the Appellant succeeded in the High Court, a lot of work would have been done for nothing. 4. APPELLANTS SUBMISSIONS 4 . 1 Mr. Sangwa SC responded by stating that when the Appellant challenged the jurisdiction of this Court to grant the ex parte Order of stay, we proceeded to deliver a ruling stating that we had jurisdiction, and that it was the said ruling that was the subject of Application No. 24 which we had heard earlier on for leave to appeal. Rll of26 4.2 He submitted that our ruling on jurisdiction is a final ruling of this Court and binding on the parties, meaning that the question on jurisdiction had been resolved, and that Application No. 24 and other subsequent applications were heard because we had jurisdiction. 4.3 State Counsel opined that the principle that everything must stop when a jurisdictional challenge is raised only applied to the Court where the challenge is raised and not when the challenge is raised in an appellate court. That the issue was raised and determined by this Court and the ref ore res judicata. 4.4 The Appellant filed written arguments which at paragraph 1 identified the question asked by the court as follows ; "Whether this Court's jurisdiction to hear Application No. 80 of 2020 is suspended or divested by the Applicants pending motion for leave to appeal against the full Courts' Ruling of 16th September 2021 ." 4.5 The Appellant had actually rephrased the question and proceeded to file detailed arguments on that basis, and at paragraph 2 Page 4 of its filed submissions proceeded to state as follows ; R12 of 26 "2. On 20th August 2025, this Honourable Court (Kondolo SC (presiding), Ngulube & Banda-Bobo), invited submissions from the parties on whether its jurisdiction is affected by the Applicants pending motion for leave to appeal against the Full Courts' Ruling of 16th September, 2021. The Courts tentative view is that its jurisdiction is so affected. It lacks the jurisdiction to hear inter-partes, Application No. 80 of 2020, and the Applicants remaining application for leave to apply for the extension of time in which to apply to vary/ discharge the 29th March 2019, consequential ruling, and order." 4 .6 We must at this juncture point out that the Appellant appears to have misunderstood and consequently rephrased the question raised by the Court, which (as per p.14 of the transcript of proceedings) was as follows; "In view of the fact that our jurisdiction is in question, can this court proceed to hear the rest of the application before the jurisdiction issue is settled?" 4. 7 The entire submission by the Appellant flowed from the question it had wrongly rephrased. We have taken note of all the Appellants submissions but shall directly address points that we consider relevant. R13 of 26 4.8 It was submitted that our ruling of 16th September 2021 by which we determined that we had jurisdiction to preside over this matter is binding on the parties and on this Court until it is stayed or set aside. That this Court's jurisdiction was therefore conclusively determined by this Court and its power to preside over the pending applications cannot be suspended because of an application for leave to appeal the ruling of 16th September 2021. Numerous cases were cited in support including Hadkinson v Hadkinson 131 • 4.9 That, interlocutory orders are operative until stayed and the pendency of a leave application does not strip the ruling of its binding force , as to do so would place every interlocutory ruling into a non-binding placeholder and confer on parties a unilateral power to neutralize orders by filing leave motions. 4.10 It was further submitted that this court was not functus officio and that the application for leave did not amount to a stay of execution and in that regard, and having been argued and determined, the issue of jurisdiction was res judicata. 4.11 The Appellant asserted that having held it had jurisdiction and exercised its jurisdiction repeatedly over the same R14 of 26 matter, it was institutionally untenable to assert that this Court's jurisdiction was suspended. According to the Appellant, the contempt of Court proceedings held during the pendency of the application for leave demonstrated that this court had retained jurisdiction to hear applications in this matter. 4.12 The Appellant opined that the "tentative view'' of this Court that it lacked jurisdiction offends Article 118 of the Constitution and public confidence in the administration of justice would be diminished by suggesting that this Courts authority can be suspended by private litigants through procedural maneuvers. That failing to reject our "tentative view'' would be to abdicate judicial authority and to act in breach of the Constitution. 4.13 The filed arguments further stated that the parties are entitled to justice without undue delay and at paragraph 41 page 17 of its arguments stated as follows : "The ex parte order of 4th December 2020 was a textbook holding measure pending inter partes argument. Its survival for nearly five years without testing is, by itself, a constitutional red flag. The tentative view would entrench that delay, converting a R16 of 26 5.4 The entire submission by the Appellant flowed from the question it had wrongly rephrased. We have taken note of all the Appellants submissions in the circumstances, we would ordinarily have made little reference to, but we shall however, directly address points that we consider relevant. 5.5 The question we put to the parties did not at all suggest that we lacked jurisdiction to preside over the matter because the Appellant had filed an application for leave to appeal our ruling of 16th September 2021. 5.6 Retracing the journey leading to this point will be helpful. 5 . 7 It is important to note that we had earlier granted the Respondent an ex parte order staying execution of the embodiment order issued by a single Judge of this Court and an inter part es hearing date was issued for the fallowing week. 5. 8 The day before the inter partes hearing took place, the Appellant challenged the jurisdiction of this Court. The immediate effect of the application was to put off the inter partes hearing on the application for stay and in that moment it all appeared to sit well with the Appellant. We heard the application and adjourned for ruling and delivered our ruling R16 of 26 5.4 The entire submission by the Appellant flowed from the question it had wrongly rephrased. We have taken note of all the Appellants submissions in the circumstances, we would ordinarily have made little reference to, but we shall however, directly address points that we consider relevant. 5.5 The question we put to the parties did not at all suggest that we lacked jurisdiction to preside over the matter because the Appellant had filed an application for leave to appeal our ruling of 16th September 2021. 5 .6 Retracing the journey leading to this point will be helpful. 5 . 7 It is important to note that we had earlier granted the Respondent an ex parte order staying execution of the embodiment order issued by a single Judge of this Court and an inter partes hearing date was issued for the fallowing week. 5. 8 The day before the inter partes hearing took place, the Appellant challenged the jurisdiction of this Court. The immediate effect of the application was to put off the inter partes hearing on the application for stay and in that moment it all appeared to sit well with the Appellant. We heard the application and adjourned for ruling and delivered our ruling R17of26 on jurisdiction on 16th September 2021 , in which we held that we had jurisdiction. 5.9 However, before we delivered our ruling, the Appellant was cited on two separate charges of contempt of Court. 5 .10 When the Court next convened, the Appellant informed the Court that it was seeking leave to appeal our ruling on jurisdiction. 5.11 The Respondent reacted by applying that the proceedings in this matter be stayed until the contempt of court hearings were concluded. After hearing arguments from both parties we delivered a ruling staying the proceedings as requested. There was no application for leave to appeal and the stay of proceedings remained 1n place until the contempt proceedings were concluded. 5.12 The proceedings resumed with the application for leave to appeal our ruling on jurisdiction. We have since delivered our ruling on the application, and on 7 th November, 2025 granted the Appellant leave to appeal. 5. 13 It was after hearing the application for leave to appeal that we posed the question now before us. R18 of 26 5.14 State Counsel Sangwa pointed out that this Court made a final determination that we had jurisdiction to hear the application for stay of execution under which the ex parte order was granted and that is why we proceeded to hear Application No. 24 and other applications. It was further submitted in the filed arguments that declining to hear the application on stay of execution will demonstrate inconsistency on our part because we have heard other applications whilst the question of jurisdiction was pending before us and the contempt of court proceedings have been cited as an example. 5.15 The example of Application No. 24 is a non-argument because it was an application for leave to appeal the said ruling on jurisdiction. To our knowledge, the only other applications that proceeded during the pendency of our ruling on jurisdiction were the application to stay proceedings (which effectively stayed the challenge against jurisdiction), the contempt proceedings for disobeying a Court Order (which cannot be impacted by an application on jurisdiction) and the Appellants application under Order 33 Rule 3 (RSC) which was itself heard as a jurisdictional R19 of 26 issue. Our ruling on Jurisdiction therefore had neither negative nor positive effect on any of the applications heard after the said ruling. 5.16 The Appellant placed a lot of emphasis on the contempt proceedings to justify its argument that we have "jurisdiction" to hear the inter partes application for stay of execution in the face of the challenge against our jurisdiction. 5.17 The contempt of court proceedings arose from alleged disobedience of an order of this Court and can best be described as parallel proceedings, with nothing to do with the merits of the dispute between the parties. Paragraph 13 page 9 of the Appellants own arguments emphasise this point where it submits as follows; "A ruling of a competent court, right or wrong, binds the parties and the court itself unless and until it is stayed, varied or overturned on appeal. This is the rule in Hadkinson v Hadkinson, where Romer LJ stated the "plain and unqualified obligation" to obey Court orders "even if the person affected believes it to be irregular or void" R20 of 26 5.18 Contempt proceedings are criminal in nature and quite distinct from the main dispute between the parties and primarily focus on disobedience of Court orders. They are therefore quite independent of and unaffected by whether or not the Court has jurisdiction. 5.19 It is evident, that none of the applications or matters dealt with by this Court during the pendency of the challenge to its jurisdiction, touched on the merits of the dispute between the parties. They were instead limited to alleged acts of disobedience and questions on jurisdiction. The Appellants arguments in this regard are therefore unfounded and dismissed. 5.20 Further, whilst we agree with State Counsel Sangwa that our ruling on jurisdiction was a final ruling of the Court on that issue and binding on the parties, we might add, it is also binding on lower Courts. It is however, not binding on the Supreme Court and it is common cause that a party dissatisfied by a decision of this Court may appeal to the Supreme Court by utilising the procedure outlined in section 13 of the Court of Appeal Act No.7 of 2016, which is exactly what the Appellant did. R21 of 26 5.21 Whilst the jurisdictional issue was settled by this Court in our ruling of 16th September 2021 the fact remains that the Appellant has challenged our jurisdiction by applying for leave to appeal and as earlier stated, we have since granted the application. 5.22 We wish to clarify that the question we posed to the parties, was not at all suggesting that we lacked jurisdiction but instead asked the question, whether we should proceed to hear the inter partes application for stay of execution in the face of the Appellants challenge to our jurisdiction. 5.23 The evolution of this particular case may be used as a lesson or guide on how to proceed when a court's jurisdiction is challenged. 5.24 Earlier in this matter, under Application 26/2019, the Respondents applied for leave to appeal the main judgment and to appeal an order of a single Judge. The Appellant challenged the jurisdiction of the Court and at page R4 of our ruling, we stated as fallows; "There are no arguments on behalf of the appellant in opposition to these motions. However, on 3rd April, 2019. The appellant did file a Notice of Motion for an • R22 of 26 Order to dismiss the Respondents motions for want of jurisdiction pursuant to the inherent jurisdiction of the Court. The motion is accompanied by skeleton arguments in support which we have duly noted, and consider them to be in opposition to the respondents' applications" (emphasis ours) 5 .25 It is noteworthy that we did not pause to consider the question of jurisdiction on its own but decided to consider it in tandem with the main applications on their merits. We thereafter granted leave to appeal and the Appellants (Respondents in the Court below) duly filed their notice of appeal in the Supreme Court in Antonio Ventriglia & One Other v Finsbury Appeal No. 2 of 2019 14l . 5.26 The Respondents reacted by filing a preliminary objection arising from the jurisdictional issues which had been raised and dismissed by the Court of Appeal. In considering the Respondents application, the Supreme Court cited the case of JCN Holdings Limited v Development Bank of Zambial5l where it held as follows; "It is clear from the Chikuta & New Plast Industries cases that if a court has no jurisdiction to hear and C T R23 of 26 determine a matter, it cannot make any lawful orders or grant any remedies sought by a party to that matter." 5.26 The Supreme Court further quoted from the Kenyan case, Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited 161 as follows; "With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized with the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction . . . . . . . . . Where a court takes upon itself to exercise a jurisdiction, which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given." 5.27 At paragraph 7 .32 page R64 of its ruling the Supreme Court stated as fallows; "Perhaps, we should also take this opportunity to stress that when a preliminary objection is taken by a party seeking to have a court refrain from taking a particular r • R24 of 26 course of action in relation to a matter, particularly where such an objection is of the nature of a jurisdictional challenge, such an objection must be dealt with at once. There is no option for the court to choose to defer the revelation of its mind upon the objection to the main judgement or ruling, unless, of course, such deference is only for the purpose of giving the reasons for having discounted the objection in question. We are indeed, of the firm and settled view that proceeding in any other way would be defeating the very purpose for which the preliminary objection will have been taken." 5.28 We note that the earlier jurisdictional questions raised in this appeal both in the Court of Appeal and the Supreme Court, were raised as preliminary objections, whilst in casu, the jurisdictional issue arises from an application for leave to appeal. The fact remains, however, that the Appellants notice of appeal challenging our Ruling of 16 th September 2021 raises a jurisdictional question. Further, as earlier stated we have since granted leave to appeal to enable the question on jurisdiction to be settled by the Supreme Court. 5 .29 In the case of Zambia National Holdings Lim ited & The United National Independence Party (UNIP) v . The Attorney General 171 the Supreme Court stated that in one sense the t ... ,. \, I • R25 of 26 term jurisdiction should be understood as the authority which the Court has to decide matters that are litigated before it. 5.30 In agreeing with the cited authorities it is our considered view that it would be folly for a Court to proceed with a matter where its jurisdiction is not settled. The Appellants challenge to our jurisdiction by filing an application for leave to appeal requires the issue to be settled by the Supreme Court before we make any decisions or orders on the merits. 5.31 As shown by the cited cases, the underlying reason for a Court "downing its tools" and not proceeding in the face of a challenge to its jurisdiction, is to avoid the risk of Courts making orders and taking action that would amount to nothing, if it is finally held that the Court lacked jurisdiction when such order was made. It is our considered view that this rationale holds true at whatever moment it is raised during the course of litigation. 5.32 We are faced with a situation where a party insists that we do not have jurisdiction over this appeal but at the same time insists that we proceed to hear th e inter partes application for stay of execution by exercising what • \ ' • R26 of 26 obviously in its view, is our purported jurisdiction. We hold the view that the Appellants desire is untenable. 5.33 In the premises, we take the position that proceeding to h ear the inter partes hearing on the stay of execution before the question of jurisdiction is determined with finality would be both inadvisable and improper. The application on the inter partes hearing is therefore adjourn ed pending the Supreme Court determining the App ellants appeal again st our ruling of 16th September , 2020. z.:?. ...... l ....... ~ ........ . M. M. KONDOLO, SC COURT OF APPEAL JUDGE P. C. M, NGULUBE COURT OF APPEAL JUDGE ...... ~ •..•........ A. M. BANDA-BOBO COURT OF APPEAL JUDGE , ✓ I 0 4 DEC 2025