Finsbury Investments Limited v Eastern and Southern African Trade and Development (APPLICATION 81/2023) [2023] ZMCA 403 (14 December 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPLICATION 81/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: FINSBURY INVESTMENT LIMITED APPLICANT AND 4 C', EASTERN AND SOUTHERN AFRICA TRADE AND DEVELOPMENT RESPONDENT Coram: Makungu, Sichinga and Ngu lube, JJA On the 31st day of October, 2023 and 14th day of December, 2023 For the Applicant: Mr. P. Chomba with Mr. D. M Silavwe both of Messrs Mulenga For the Respondent: Mr. C. J. Mumba with Mr. C. P. Chula, both of Messrs Mundashi Legal Practitioners. Chibesakunda and Co. RULING Makungu, J. A delivered the ruling of the Court. Cases referred to: 1. Leopold Walford (z) Limited v. Unjfreight (1985) Z. R. 203 2. Standbic Bank Zambia Limited v. Savenda Management Services Limited 2016/ CAZ/ 08/040 3. D. E. Nkhuwa v. Lusaka Tyre Services Limited (1976) Z. R 110 4. Barclays Bank PLC v. Jeremiah Njovu and 41 others SCZ/09/21/2019 5. Kekeiwa Samuel Kongwa v. Meamui Georgina Kongwa SCZ/8/05/2019 6. Citibank Zambia Limited v. Suhayi Dudhia SCZ 8/08/2022 7. Ziatan Zlatko Anautovic v. Stanbic Bank Zambia Limited SCZ/ 08/14/2020 8. Bidvest Food Zambia Limited & Others v. CAA Import and Export Limited SCZ Appeal No. 56 of 2017 9. Dar Farms Transport Limited v. Moses Nundwe, Lima Bank (in Liquidation) Lukanga Investment Development Limited and Mpongwe Limited SCZ Appeal No. 46/2014 10. Standard Chartered Bank v. John Banda SCZ Appeal No. 9412015 Legislation referred to: 1. The Court of Appeal Act No. 7 of 2016 of Laws of Zambia 1.0 INTRODUCTION ii On 12th June, 2023, the applicant filed a Notice of Motion for leave to appeal to the Supreme Court against this Court's judgment dated 30th May, 2023. On 271h September, 2023 it filed an ex-parte summons for an order to stay execution of the same Judgment pending the hearing and determination of the said Notice of Motion for leave to appeal. We decided to hear both applications inter-partes on the same date. 2.0 BACKGROUND 2.1 Cause Number 2019/HP/0288 was commenced by the applicant by way of writ and statement of claim on 5th March, 2019 and a defence was filed on 8th May, 2019. On 5th November, 2019 the respondent raised some preliminary -R2- issues, the gist of which was whether the action should not be dismissed for abuse of Court process, for being statute barred and for failure to comply with orders for directions. The issue of an arbitration agreement between the parties was also brought up. 2.2 On 26th May, 2020, the High Court delivered a ruling dismissing the preliminary issues and ordering that the matter should come up for trial on 29th and 30th September, 2020. Leave to appeal was granted. 2.3 The appeal was filed a day late on 261h June, 2020 without leave of Court. On 11th September, 2020, the applicant filed summons for an order to dismiss the appeal for irregularity. The application was heard by a single Judge of this Court who delivered a ruling on 6th August, 2021 dismissing the appeal for incompetence as it was filed a day late, without leave of the Court below. 2.4 On 6th September, 2021, the respondent filed before the Court below an application for an order for extension of time within which to appeal. On 29th November, 2021 the applicant filed a notice of motion to set aside the said application for an -R3- extension of time on the ground that the lower Court had no jurisdiction to entertain it. The application was opposed. 2.5 On 17th February, 2022 the Court below delivered its ruling wherein it found the application for extension of time to be incompetent because determining the said application in its view would be tantamount to reversing the dismissal of the appeal by the single Judge of this Court. 2.6 The respondent lodged an appeal against the ruling of 17th February, 2022, on six grounds. The main ground was that the Court erred by not hearing and determining the application for extension of time within which to file a notice and memorandum of appeal on its own merits. 2.7 We heard the appeal and determined it on its own merits on 30th May, 2023. Our decision was based on the case of Leopold Walford (Z) Limited v. Unifright' to the effect that breach of a regulatory rule is curable and not fatal depending on the nature of the breach and the stage of the proceedings. 2.8 We also relied on the case of Stanbic Bank Zambia Limited and Savenda Management Services Limited' where we held inter alia that section 25 of the Court of Appeal Act is not mandatory as Order 13 of the Court of Appeal Rules, 2016 -R4- confers discretion on the Court, for sufficient reason, to extend the time in which an appeal can be filed. 2.9 We found that the lower Court failed to apply the correct legal principles in determining the application for extension of time, which principles were elucidated in the cases of D. E. Nkhuwa v. Lusaka Tyre Services Limited' and Stanbic Bank Zambia Limited v. Savenda Management Services.' 2.10 We held that the lower Court had the requisite jurisdiction to hear and determine the application for an extension of time because the dismissal of the appeal by the single Judge for incompetence did not oust such jurisdiction. It was as though the notice of appeal was never filed. Our determination was also because the defect was still curable. We therefore set aside the lower Court's order dismissing the application for an extension of time and ordered the same Judge to hear the application inter-partes. 3.0 AFFIDAVIT IN SUPPORT OF THE MOTION FOR LEAVE TO APPEAL TO THE SUPREME COURT 3.1 The above-mentioned affidavit was sworn by Sokwani Peter Chilembo the legal counsel for Mahtani Group of Companies of -R5- which the applicant is a part. He gave the history of the matter as stated in the preceding paragraphs. 3.2 He stated that he had been reliably informed by the applicant's advocates that the intended appeal raises a point of law of public importance, has reasonable prospects of success and there are compelling reasons why it should be heard by the Supreme Court. The draft notice of appeal and memorandum of appeal are exhibited collectively as SC4. The proposed grounds of appeal contained in the draft memorandum of appeal are as follows: 1. That the Court of Appeal erred in law and fact when it held that the High Court did not lose its jurisdiction to hear and determine the respondent's application for an extension of time within which to file the notice of appeal and memorandum of appeal notwithstanding the dismissal of the appeal sought to be relaunched; and 2. That the Court of Appeal erred in law and fact when it held that the dismissal of the respondent's appeal on 26th June, 2020 was for a breach of a regulatory rule and that the High Court could proceed to hear the -R6- application for an extension of time within which the said appeal could be relaunched, a position contrary to the precedent set by the Supreme Court. 4.0 AFFIDAVIT IN OPPOSITION TO NOTICE OF MOTION FOR LEAVE TO APPEAL TO THE SUPREME COURT 4.1 The above-mentioned affidavit was sworn by Edward Sampa the Principal Legal Officer in the respondent company. In short, he stated that the applicant has not demonstrated that the intended appeal has reasonable prospects of success, raises a point of law of public importance and/or that there are compelling reasons for it to be heard by the Supreme Court. 4.2 APPLICATION FOR A STAY 4.3 We must mention at this juncture that we do not have to summarise the affidavits and the arguments relating to the application for a stay pending determination of the motion for leave to appeal because, in this ruling, we shall determine the motion for leave to appeal. 5.0 ARGUMENTS IN SUPPORT OF THE APPLICATION FOR LEAVE TO APPEAL -R7- 5.1 According to the written arguments filed on 20th September, 2023, which were relied upon during the hearing, it was submitted that the motion for leave to appeal has prospects of success in light of the case of Barclays Bank PLC v. Jeremiah Njovu and 41 others' where it was held that: "Once an appeal is dismissed, whether on merit or on a technicality, such an appeal can neither be re- launched, reviewed or resuscitated." 5.2 The applicant's counsel submitted further that the Supreme Court has on several occasions pronounced itself on the meaning of "public importance". In the case of Kekeiwa Samuel Kongwa v. Meamui Georgina Kong Wa5 it was held inter alia that: "... For an appeal to satisfy the element of public importance under section 13 of the Court of Appeal Act, it must raise a legal question with a public or general character rather than one that merely affects the private rights or interests of the parties to the dispute." 5.3 That the point of law of public importance which the Supreme Court should determine in this matter is whether a party may -R8- revive an appeal that has been dismissed either on its merits or on a technicality. 5.4 On the issue of prospects of success of the intended appeal, it was submitted that this Court faulted the High Court for its refusal to delve into the merits of the respondent's application for an extension of time within which to file a notice of appeal and memorandum of appeal. 5.5 Nevertheless, the High Court had no such jurisdiction as the application for an extension of time was dismissed by a single Judge of this Court and so was the appeal. Based on a jurisdictional issue, the intended appeal has reasonable prospects of success. 5.6 Counsel referred us to the case of Citibank Zambia Limited v. Suhayl Dudhia6 where it was clarified that once a Judge loses jurisdiction over a matter, that Judge cannot create or recreate that jurisdiction. 5.7 That in the case of Ziatan Zlatko Anautovic v. Stanbic Bank Zambia Limited' the Supreme Court found that the jurisdictional issue mounted by the applicant constituted a point of law of public importance and met the threshold set under section 13 (3) (a) of the Court of Appeal Act. -R9- 5.8 (cid:9) In light of the authorities cited, we were urged to grant leave to appeal. 6.0 ARGUMENTS IN OPPOSITION TO THE APPLICATION FOR LEAVE TO APPEAL 6.1 The skeleton arguments in opposition to the application for leave to appeal were filed on 3rd November, 2023. In these arguments, counsel for the respondent referred us to Section 13 of the Court of Appeal Act, which outlines the requirements for leave to appeal to the Supreme Court, stating that under this section, the applicant will have to demonstrate that its appeal raises a point of law of public importance, has prospects of success or that there are other compelling reasons for the appeal to be heard. Counsel took the view that a perusal of the applicant's affidavit and skeleton arguments in support of the application for leave to appeal does not demonstrate any prospects of success on appeal. 6.2 That the applicant has expressed its desire to have the Supreme Court correct an alleged error made by the Court of Appeal but precedent reveals that this is untenable. The case of Bidvest Foods Zambia Limited and Others v. CAA, Import and Export Limited' was cited on the principle that the Supreme -RiO- Court does not exist to correct errors, misapprehensions or misapplications of the law made by the Court of Appeal. That even if the Court of Appeal missed a point, made a wrong conclusion or applied a wrong principle, these are not reason enough to justify intervention by the Supreme Court. 6.3 (cid:9) That in any case, the judgment of the Court of Appeal dated 301h May, 2023 was not erroneous as the Court considered the applicant's arguments on the Barclays Bank case and it was not persuaded by them. It also clarified the ruling of the single Judge dated 6thAugust, 2021. Hence there is no point of law of public importance. 6.4 It was submitted further that leave to appeal is granted very sparingly and certainly will not be granted where a party contends that the Court of Appeal erred in law. We were urged not to grant leave to appeal. 7.0 ARGUMENTS IN REPLY 7.1 The arguments in reply filed on 3rd November 2023, were as follows: That contrary to the respondent's assertion that this Court adequately addressed all the issues raised on appeal, the Court did not address the jurisdictional issues raised by the -Ri 1- (cid:9) applicant. This is contrary to the established principles in the case of Citibank Zambia Limited v Suhayl Didhia6 where it was enunciated that a jurisdictional issue once raised must be determined on its merit before the court can proceed with the substantive hearing of the matter. 7.2 Counsel further argued that even if this Court dealt with the issues that the applicant intends to raise in its appeal before the Supreme Court, the same can never be a ground on which leave to appeal can be refused as the Court has to consider the provisions of section 13 of the Court of Appeal Act. 7.3 (cid:9) Citing the cases of Barclays Bank Plc v. Jeremiah Njovu and 41 Others4 and Dar Farms Transport Limited v. Moses Nundwe, Lima Bank (in Liquidation) Lukanga Investment Development Limited and Mpongwe Limited,9 counsel for the applicant argued that this Court is functus officio as far as the issue of the respondent's appeal is concerned because it was dismissed for failure to obtain leave to appeal. 7.4 To counter the respondent's argument that the intended appeal does not have reasonable prospects of success as it does not meet the threshold established in section 13 (3) of the Court of Appeal Act, counsel submitted that the role of the Supreme -R12- (cid:9) Court in hearing the appeal intended to be filed by the applicant is not restricted to correcting errors as argued by the respondent. On the contrary, the appeal shall allow the Supreme Court to set the correct precedent on whether a party whose appeal has been dismissed whether on its merits or a technicality can apply for an extension of time in the lower court to re-launch the same appeal. 7.5 Counsel cited a passage from the Bidvest Foods Zambia Limited and Others v. CAA, Import and Export Limited8 case, which reads: "The policy of restricting appeals to review of the lower court's decision is founded not only on the need to economize the use of resources. It is also founded on the belief that lower courts bear the main responsibility for the conduct of litigation and its outcome. Appeal courts must defer to lower court's decisions, unless a decision is clearly wrong, in the sense that it is contrary to established principles or that no reasonable judge could have reached the conclusion in question." -R13- 7.6 In light of the above holding, counsel contended that leave to appeal is warranted in this case because there is need for the Supreme Court to clarify the position on whether an appeal dismissed for breach of a regulatory rule can be resuscitated by way of restarting the appeal process before the High Court. 7.7 Therefore, this Court should grant the application for leave to appeal. 8.0 ANALYSIS AND DECISION 8.1 We have considered the affidavit evidence and the arguments made by counsel on behalf of the concerned parties. Section 13 (3) of the Court of Appeal Act provides the threshold that appeals to the Supreme Court are supposed to meet. It states that: "The Court may grant leave to appeal where it considers that— (a) the appeal raises a point of law of public importance: (b) -R14- (c) the appeal would have a reasonable prospect of success; or (d) there is some other compelling reason for the appeal to be heard." 8.2 The question we ask ourselves is whether the intended appeal raises a point of law of public importance deserving the consideration of the Supreme Court. In the case of Bidvest Food Zambia Limited and Others v CAA Import and Export Limited', the Supreme Court elaborated on what consists of a point of law of public importance following the decision of the Supreme Court of Kenya in Hermanus Philipus Steyn v. Giovanni Grecchi Ruscone where a matter of general public importance was described as follows: "The importance of the matter must be public in nature and must transcend the circumstances of the particular case so as to have a more general significance. Whether the matter involves a point of law, the applicant demonstrates that there is uncertainty as to the common good that such law should be clarified so as to enable courts to administer that law, not only in the case at hand, but other cases in the future.... A question of general importance is a question which takes into -R15- account the wellbeing of a society in the first proportion..." 8.3 In the case of Kekeiwa Samuel Kongwa v. Meamui Georgina Kongwa5 the Supreme Court held inter alia that: "... For an appeal to satisfy the element of public importance under section 13 of the Court of Appeal Act, it must raise a legal question with a public or general character rather than one that merely affects the private rights or interests of the parties to the dispute." 8.4 The Supreme Court went on to state that: "An intended appellant ought to demonstrate that the point of law raised is a substantial one, the determination of which will have a significant bearing on the public interest." 8.5 The above authorities need no more elaboration. The applicant contends that the important question of law arising from the peculiar facts of this case, which deserves the consideration of the Supreme Court, as can be discerned from the proposed grounds of appeal which are reproduced above (see Paragraphs 3.3 and 3.4) could be summarised as follows: whether a party -R16- may revive an appeal that has been dismissed either on its merits or on a technicality. 8.6 (cid:9) We take note that, on the facts of this case, there is no dispute that after the dismissal of the appeal by the single Judge of this court for incompetence, the respondent made an application in the court below for an extension of time within which to file the appeal before this Court. That application was dismissed for incompetence. 8.7 In our judgment dated 30th May, 2023, we held that the High Court had jurisdiction to hear and determine the application for an extension of time within which to appeal because the dismissal of the appeal by the single Judge for incompetence did not oust such jurisdiction. It was as though the notice of appeal was never filed. In our view, the failure to obtain leave to appeal from the lower court was a curable defect. We based our decision on the set principles in the case of Leopold Walford (Z) Limited v. Unifright1 to the effect that a breach of a regulatory rule is curable and not fatal depending on the nature of the breach and the stage of the proceedings. We further relied on the case of Stanbic Bank Zambia Limited and Savenda Management Services Limited where we held inter alia that -R17- (cid:9) section 25 of the Court of Appeal Act which provides for appeals to be made within 30 days of the judgment is not mandatory as Order 13 of the Court of Appeal Rules, 2016 confers discretion on the Court, for sufficient reason, to extend the time in which an appeal can be filed. 8.8 The respondent in this case filed the appeal only a day late and that was excusable by any standards. The applicant applied for dismissal of the appeal about three months after the notice of appeal and memorandum of appeal were filed. This means that the proceedings were at a stage at which a correction of the defect could be allowed, in view of the Leopold Walford (Z) Limited case supra. We are further fortified by the case of Standard Chartered Bank v. John Banda,'° where the Supreme Court stated as follows: "We think rules of court should indeed serve a definitive purpose and we are not to apply them using a rigid approach without regard whatsoever to the consequences of any delayed rectification of their breach. In case of breach of rules that do not result in any real or serious prejudice or negative consequences to any party, the court does surely retain the discretion -R18- always as to what order would best meet the justice of the situation." 8.9 (cid:9) Based on the above principles of law we do not see any point of law of public importance that should be determined by the Supreme Court. 8.10 On the issue of the intended appeal having prospects of success, the applicant referred us to the cases of Barclays Bank PLC v. Jeremiah Njovu and 41 Others' and Dar farms Transport Limited v Moses Nundwe & 3 Others,9 where the Supreme Court guided that once an appeal is dismissed, whether on merit or on a technicality, such an appeal cannot be re-launched. We have reflected on these authorities and we opine that the same can be distinguished from the present case in that the said appeals were dismissed for breach of mandatory rules of Court. Whereas, in casu, the breach was of a regulatory rule which is curable as alluded to above. It is trite law that every case must be dealt with on its own merits. 8.11 For the foregoing reasons, we do not accept the applicant's submission that the intended appeal has reasonable prospects of success. There being no compelling reason for us to grant -R19- (cid:9) r 1' leave to appeal, we find the application for leave to appeal unmeritorious. 8.12 Under the circumstances, the application for stay of execution of the judgment dated 30th May, 2023 becomes otiose. 9.0 CONCLUSION 9.1 All in all, the application for leave to appeal is bereft of merit and dismissed. We order costs for the respondent to be taxed in default of agreement between the parties. C. K. MAKUNGU COURT OF APPEAL JUDGE D. L. Y SICHIN COURT OF APPI A, SC AL JUDGE P. C. M NGULUBE COURT OF APPEAL JUDGE -R20-