Finsbury Investments Limited And Ors v Zambezi Portland Cement Limited (APPEAL N0.37 /2024) [2025] ZMCA 26 (25 February 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA .__.~1..., c:.---- APr ....,,.(,.t.)u APPEAL N0.37 /2024 - ;i.11~ 2 5 FEB 2025 1,1:~, ""~ _,,,,/ ~ R'=GJs, R ( .2 , _~, P,7 ~ ,......, ... ( Civil Jurisdiction) BETWEEN: FINSBURY INVESTMENTS PETER KANAGANAYAM RAJAN MAHTANI AND 1 sT APPELLANT 2ND APPELLANT 3RD APPELLANT ZAMBEZI PORTLAND CEMENT LIMITED RESPONDENT Coram: Makungu, Banda-Bobo and Muzenga, JJA On the 6 th and 25th February 2025 For the appellants: Mr. M. Nkunika with Mr. K Samiselo both of ZS Legal Practitioners & Mr. S. Banda of Simez Sangwa & Associates For the respondent: Mr. A. Siwila & Mr. S. Mambwe both of Messrs. Mambwe Siwila & Lisimba Advocates JUDGMENT MAKUNGU JA, delivered the judgment of the Court. Cases referre d to: 1. Celtel Zambia Limited v Zambia Revenue Authority 2010/ HPC/ 668 2 . Gret stone Mince Technical Service Limited and Chi-Africa Mining Limited & another CAZ Appeal No. 16 of 2023 3. Zambia Revenue Authority v T and G Transport (2007) Z. R 13 J1 4. Engen Petroleum Zambia Limited and Evans Chilukusha and Others CAZ App 50/2021 5. Investment Bank PLC v Build It Hardware Limited and Yousuff Essa SCZ No. 3 of 2013 6. Antonio Ventriglia and Another v Finsbury Investment Limited SCZ Appeal No. 2 of2019 Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 2. The High Court Act, Chapter 28 of the Laws of Zambia Other Authorities referred to: 1. Halsbury's Laws of England, Vol 3 7, 4th Edition Paragraph 438 1.0 INTRODUCTION 1.1 We first h eard this appeal on 15th October 2024 in Kabwe, however, before judgment could be delivered, two of the panel m embers left the Court and this necessitated a re-hearing of the m atter on 6 th February 2025. 1.2 This is an interlocutory a ppeal against the entire ruling of the Honourable Mr. Justice D. Musonda of the High Court at Ndola delivered on 29 th September 2023 . 1.3 In that ruling, the learn ed Judge dismissed the 3 rd , 4 th , and 5 th defendants' motion for an order to stay all the proceedings in cause number 2015 / HN/89 pending the determination of an application by the Ventriglias as 1st and 2 nd respondents 1n appeal number CAZ/ 117/2018 to stay execution of the J2 ruling and order of the Court of Appeal of 29 th March 2019. The order dated 29 th March 2019 embodies the Court judgment in the s aid appeal. The stay of proceedings if granted would be pending h earing and hearing and determination of that application before the Court of Appeal for leave to apply for extension of time in which to apply to the full Court to set aside the said order and ruling embodying the judgment. The lower Court dismissed the a pplication for lack of jurisdiction. 1.4 In cause number 20 15/ HN/89 the respondent herein was the plaintiff while the defendants were Leasing Finance Company Limited, Finance Bank Zambia Limited, Finsbury Investments Limited , Peter Kanaganayam, and Rajan Mah tani (Dr). 1.5 In CAZ/ 117/2018, Finsbury Investments Limited was the Appellant, while Antonio Ven triglia and Manuela Ventriglia were the first and second respondents, respectively. 2 .0 BACKGROUND 2 .1 In appeal number 117 /2018, the Court of Appeal overturned a High Court judgment dated 18th May 2018, which declared the responden ts as the only shareholders of Zambezi Portland Cement Limited . 2 .2 A single judge of the Court of Appeal settled the order embodyin g the judgment of the Court pursuant to Order 10 J3 rule 23 (4) of t he Court of Appeal Rules . Th e order em bodying th e judgment which appears at page 137 of the record of appeal indicates inter alia that: IT IS ORDERED AND ADJUDGED, by the Court of Appeal th at: "(a) The appellants appeal is allowed and the judgment of the High Court dated 18th May 2018 is set aside, (b) The register of members of Zambezi Portland Cement shall accordingly be restored, if any changes have been made, to show that the appellant holds 58% of shares of Zambezi Portland and Ital Terazzo Limited holds 42% of shares, (c) The appellant shall within ninety (90) days from the date of the judgment pay to the respondents the sum of Five Hundred and Eighty Thousand Kwacha (580,000) in re-d e nominated currency for the five Hundred and Eighty Million shares transferred to the appellant; (d) The sum of Five Hundred and Eighty Thousand Kwacha (580, 000) in the re-denominated currency shall attract interest at the short-termjvced deposit rate from date of the Writ until judgment and thereafter a t t wo (2) per centum until final payment." 2 .3 The respondents wer e dissatisfied with the judgment, ruling and order embodying the judgment. They sought leave to app eal t o th e Supreme Court which was granted. However, J4 their appeal was later dismissed by the Supreme Court on a technicality. 2 .4 The respondents later reverted to the Court of Appeal and sought an order to stay execution of the ruling and order of the Court of Appeal of 29th March 2019, pending the hearing and determination of their application for leave to apply for the extension of time in which to apply to set aside the said ruling and order. 2 .5 The application was r efused by the single Judge and renewed before the full Court. On 4 December 2020, the full Court granted the respondents an ex-parte order staying the execution of the order of 29 March 2019, pending an inter partes h earing on 11 December 2020. It is unclear whether the inter-partes h earing took place. 2 .6 In cause number 2015/ HN/089 the plaintiffs main claim relates to the sums of ZMW185,204,22 .76 and USD 30,020,218.09 which the plaintiff Zambezi Portland Cement Limited alleges were illegally paid by the management of the company th at was in place between December 2012 and April 2015. 2 .7 On 30th March 2023, the defendants in cause number 2015 / HN/ 089 a pplied before the lower Court for a stay of proceedings p ending th e hearing and determination of the m atter that is before the Court of appeal under cause number 117/20 18. The main ground being that the legality of these p ayments cannot be resolved unless the question of JS shareholdin g in the plaintiff company is determined by the Court of Appeal. 2 .8 The plaintiff argued before the lower court that the parties in CAZ/ 117/2018 are different from the parties 1n 2015/HN/089. Furth er the parties in the High Court matter have no interest in th e company membership dispute in the said appeal. 2 . 9 It was further argued that the defendant's argument relating to the au thority of m ajority shareholders over the company was earlier challenged. The challenge was dismissed by the Supreme Court. Under the circumstances, raising it again was not only an abuse of court process but a refusal to accept the decision of the Supreme Court on the Matter. 3 .0 THE LOWER COURT'S DECISI ON DATED 29TH SEPTEMBER 2023, APPEALED AGAINST 3 .1 Upon hearing the application to stay proceedings, the lower Court firstly considered whether it had the necessary jurisdiction to handle the application. 3 .2 The court looked a t Order 19 rule 3(3) and (4) of the High Court (Amendment) Act, 2020 which proscribe the filing of interlocutory applications fourteen days before the commencem ent of trial yet gives the court discretion which discretion is not subj ect of an interlocutory appeal, to entertain an interlocu tory application, which with reasonable J6 diligence could not have been m ade before the time specified in sub rule (3). 3 . 3 The Court below found that the a pplication before it was filed on 30 th March, 2023 less than ten days b efore trial on 5 th April 2023 . Since the matter was based on the appeal which has been pending in the Court of Appeal since 2020, the application to stay proceeding, with reasonable diligen ce, could have been made before the 14 days trial period elapsed instead of waiting until only six days before trial to launch it. 3.4 Consequently, the application was dismissed with costs for lack of jurisdiction. The trial was set for 8 th November 2023, at 09:00 hours. 4 .0 THE APPEAL 4 .1 The appellants have since appealed against the above ruling on the following grounds as indicated in the m emorandum of appeal on record: 1 . The learned Judge was wrong in law by holding that he had no jurisdiction to determine the appellants' application as set out in the Notice of Motion dated 3()th March 2023. 2. The learned Judge misdirected himself on the law by ignoring the nature and scope of the application set out in the Motion dated 3()th March 2023. J7 3. The learned Judge misapplied order 19 rule 3(3) and (4) of the High Court Rules. 4. The ruling of the learned Judge was wrong at law and ought to be set aside and replaced with an order that all the proceedings in cause number 2015/HN/89, be stayed until after the decision of the Court of Appeal No. 11 7 of 2018 on the application to stay execution of the Ruling and Order of 29 March 2019, pending the hearing and determination of the application for leave to apply for the extension of time in which to apply to the full Court to set aside the Order and Ruling of 29 March 2019. 5 .0 HEADS OF ARGUMENT 5.1 Both parties filed written heads of arguments on 15th February 2024 and 19th March 2024 respectively. which they relied on at the appeal h earing. They also made viva voce arguments at the hearing. We have read and considered the arguments. However, we shall not summarise the written heads of argument in this segment of the judgment. We shall only refer to the relevant portions of the arguments in our analysis and determination. J8 6.0 RE-HEARING OF THE APPEAL 6.1 At the re-hearing of the appeal, counsel for both sides relied on their respective heads of argument. 6.2 Mr. Nkunika Counsel for the appellant orally submitted that the lower Court had the jurisdiction to entertain the application for a stay of proceedings but decided to determine issues that were not before it instead of determining whether to stay the proceedings pending hearing of the appeal. 6 .3 On the question of whether the application was caught under the provisions of Order 19 rule 3 (3) and (4) of the High Court rules. Counsel took the view that order 19 was inapplicable to this case which started in 20 15 way before the rules were amended in 20 18. He further argued that a stay of proceedings does not seek to further the hearing of the matter. Based on section 24 of the Court of Appeal Act, this Court can substitute the decision of the lower Court with its own decision to ensure that there is no multiplicity of actions. Mr Banda co-counsel for the appellant urged us to dismiss grounds 1 to 3 as they were based on Order 19 of the High Court Rules which does not apply. 6 .4 Mr. Samiselo also counsel for the appellant added that the law does not operate retrospectively. He cited the High court case of Celtel Zambia Limited v Zambia Revenue Authority1 as persuasive authority on the principle that if the law where to operate retrospectively the wording of the statute must state so. J9 6 .5 Mr. Siwila counsel for the respondent augmented his written submissions by referring us to the case of Gret stone mince Technical Service limited and Chi-Africa Mining Limited & another2 to advance the argument that the appellant adopted a wrong procedure and this Cou rt is constrained to deal with the merits of the appeal for procedural impropriety and want of jurisdiction. 7 .0 ANALYSIS AND DETERMINATION 7 . 1 We have carefully considered the record of appeal and the arguments made by counsel on behalf of the concerned parties. We shall first address grounds 1 and 3 of the appeal together as they raise jurisdictional issues. 7 . 2 In support of the first ground of appeal, counsel for the appellant submitted that the failure to comply with the relevant rules of the Court does not, in itself, deprive the Court of jurisdiction to hear and determine the matter on its merits. Rather, such failure renders the matter irregularly before the Court. Counsel further contended th at Order 19, Rules 3(3) and (4) of the High Court (Amendment) Rules, 2020(HCR), which the trial judge relied upon in dismissing the matter, does not affect the Court's jurisdiction. Therefore, the judge's finding that he lacked jurisdiction to determine the appellant's application was erroneous. 7 .3 On the other hand, counsel for t he respondent argued that despite the lower court's conclusion that it lacked jurisdiction to entertain the application for an order of stay of proceedings JlO pending appeal, the Court proceeded to determine the application and u ltimately dismissed it. Counsel submitted that even if we were to accept the appellant's arguments under the first ground of appeal, the appeal should still fail because the appella nt did not obtain leave to appeal against the interlocutory order made by the lower Court in chambers. 7 .4 It was further submitted on behalf of the respondent that beca use the appellant did not apply for leave to appeal, no leave was granted by the lower court in its ruling of 29th September 2023 , nor at any time thereafter, and no leave was obtained from a single judge of this Court, the Court is deprived of jurisdiction to hear the appeal. 7 .5 In response, counsel for the appellant contended that because the ruling subject to this appeal was delivered in open Court , th e requirement to obtain leave does not apply. 7 . 6 Turning to the third ground of appeal, counsel for the appellant contended that Order 19, Rules 3(3) and (4) HCR, is inapplicable in this case as the matter was initiated in 2 01 5 , and the amendment does not have retrospective effect. The respondent has conceded this point, acknowledging that Practice Direction No. 1 of 2020 clarifies that Statutory Instrument No. 58 of 2020 does not apply retrospectively. 7 . 7 Despite this concession, the r espondent argued that the appeal against the ruling of the lower Court dismissing the motion for a stay of proceedings was procedurally improper. Jll Counsel contended that the appellant should h ave ren ewed the application for a stay before this Court, rather th an appealing the lower Court's decision. 7 . 8 We shall now address the jurisdictional issu es raised by th e r espondent on the two grounds. These issu es are twofold: firstly, whether th e appellant was required to obtain leave before bringing this appeal, and secondly , wheth er the application should h ave been brought by way of renewal, rath er than by appeal. 7 .9 Regarding appeals from Judges' Chambers, Section 23(1)(e) of the Court of Appeal Act provides: "An appeal shall not lie from an order made in chambers by ajudge of the High Court or by a quasi judicial body or f rom an interlocutory order or interlocutory judgment made or given by a judge of the High Court or by a quasi-judicial body, without the leave of that judge or quasi-judicial body or, if that has been refused, without the leave of a judge of the Court." 7 .1 0 Although the ruling of the Court below, dated 29th September 2023, emanated from a chamber application, it was deliver ed in open Court as stated by counsel for the appellant. We find that this does not alter the nature of the ruling. Despite its delivery in open Court, the ruling r etains its character as an order made from chambers tha t does not fin ally dispose of J12 the matter, and as such , an a ppeal is only permissible with leave of the Court as per Section 23 of the Court of Appeal Act. 7 . 11 Further, as aptly submitted by counsel for the respondent, an application for a stay of proceedings is an interlocutory one. In this r egard, Halsbury's Laws of England on page 438 states: "Although an order staying proceedings may have the character of a final order, it is nevertheless an interlocutory order and therefore an appeal lies to the Court of Appeal only with leave." 7 . 13 In the case of Zambia Revenue Authority v T and G Transport3 , the Suprem e Court held that: "The requirement of leave to appeal goes to the jurisdiction of the Court of Appeal." 7 . 14 Further, in the case of Engen Petroleum Zambia Limited v Evans Chilukusha and Others4 , this Court directed that when a High Court denies an application for a stay of execution, the correct procedure is for the appellant to renew the application before a single judge of the Court of Appeal, rather than appealing. 7. 15 Similarly, In the case of Investment Bank PLC v Build It Hardware Limited and Yousuff Essa4, the Supreme Court stated: J13 "By lodging an appeal rather than a renewed application before a sing le judge, the procedure adopted by the appellant was therefore wrong, and this appeal is bound to fail on that basis alone." 7 .16 We must state that the p r ocedu re elucida ted in the Engen Pe troleum and Investment Bank Pie cases supra applies to both cases of stay of execu tion of judgm ent and stay of proceedings. 7 . 1 7 We are therefore of th e firm view th a t , as the ruling of the Court below was interlocu tory, th e appellant ought to have r enewed th e application before a single judge of this Court, rather than appealing. The cases of Engen Petroleum and Investment Bank PLC v Build It Hardware Limited and Yousuff Essa3 supra apply. 7 . 18 The appellants further contraven ed , Order X, Rule 2(1) of the Court of Appeal Rules, 2016 which stipulates: "An application to a single judge shall be made by notice of motion or summons within fourteen days from the date of the decision complained of." 7 . 19 Th e above provisions are clear and the appellant ought to have renewed th e application before a single judge of this Court within 14 days of th e decision m a de by the High Court. 7 .20 Therefore, we find that th e a ppeal is incompetently before the Court and we have no jurisdiction to determine it on its J14 m erits. We are guided by the decision in Antonio Ventriglia and Another v Finsbury Investment Limited5 , where the Suprem e Court h eld: "Jurisdiction is everything, and without it, a Court has no power to take one more step." 8 .0 CONCLUSION 8 . 1 All in all, the appeal is dismissed for incompetence with costs to be taxed in default of agreem en t. COURT OF APPEAL JUDGE A. M. BANDA-BOBO COURT OF APPEAL JUDGE K. MUZENGA COURT OF APPEAL JUDGE JlS