Finsbury Investments Limited v Eastern and Southern African Trade and Development Bank and Anor (APPEAL NO. 92/2024) [2025] ZMCA 65 (9 May 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 92/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: FINSBURY INVESTMENTS LIMITED APPELLANT AND EASTERN AND SOUTHERN AFRICAN TRADE AND DEVELOPMENT BANK RESPONDENT ATTORNEY GENERAL AMICUS CURIAE CORAM: Chashi, Makungu and Banda-Bobo, JJA ON: 23rd April and 9TH May 2025 For the Appellant: (1) S. P Chilembo, N Chibeleka and B . M Ngulube, Messrs RASO Chambers (2) P. Chomba, Messrs Mulenga Mundashi Legal Practitioners For the Respondent: P. S Mwanza, Messrs Chibesakunda & Co. For the Amicus Curiae: K. Chipulo, Senior State Advocate, Attorney General's Chambers JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. Antonio Ventrigilla and Manuel Ventriglia v The Eastern and Southern African Trade and Development Bank (2010) ZR, Vol 1, 486 -J2- 2. Stanbic Bank v Micoquip Zambia Limited - SCZ Appeal No. 18 of 2015 3 . Anderson Kambela Mazoka & Others v Mwanawasa & 2 Others (2005) ZR, 138 Legislation referred to: 1. The Constitutional Court Act, No 8 of 2016 Rules referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia 2. The Supreme Court Practice (White Book) 1999 Others Works referred to: 1. Black's Law Dictionary, 8 th Edition, Brian A. Garner, Thomson West 2 . The Role and Procedure of Amicus Curiae in Court Proceedings and Its Implications in Zambia, Tobbius Hamunkoyo - Wagon Media 1.0 INTRODUCTION 1.1 This is an interlocu tory a ppeal again st the Ruling of Honoura ble Mrs Justice S . Ka unda Newa deliver ed on 2 3 rd January 2 0 24. 1.2 In the s aid Ruling, the learned Judge granted the Appellant , who is the p laintiff in the court b elow, an Order for exten sion of time for filing the notice of a ppeal -J3- and memorandum of appeal in respect of the learned Judge's Ruling of 26 th May 2020. 1.3 In addition, the learned Judge granted an Order for joinder of the Attorney General as amicus curiae. 2 .0 BACKGROUND 2. 1 The brief background to this case, which we shall restrict to matters relevant to this appeal is that, the Appellant commenced an a ction in the court below on 5 t h March 2019, by way of writ of summons claiming the following reliefs: (i) Damages for conspiracy (ii) Damages for wrongful interference (iii) Interest (iv) Any other re lief the court may deem fit 2.2 On 11 th November 2019, the Respondent as the defendant in the court below, raised five (5) preliminary issues. One of the issues raised was "whether the action by the plaintiff should be terminated for violating the Diplomatic Immunities (Common Market for Eastern and Southern African Trade and Development Bank) Order, Statutory Instrument No. 123 of 1992. " -J4- 2.3 After exhaustively considering the arguments by the parties, the learned Judge in h er Ruling delivered on 26th May 2020, took into consideration the Supreme Court case of Antonio Ventrigilla and Manuel Ventriglia v The Eastern and Southern African Trade and Development Bank1 . In that case, it was held that the immunity granted to the Respondent was not absolute and did not extend to commercial matters. 2.4 The learned Judge went on to qu ote comprehensively from the Antonio Ventriglia 1 case and made a finding that the claims before the court arose out of a commercial transaction and that, the immunity granted to the Respondent under Statutory Instrument No. 123 of 1992, h aving been found by the Supreme Court in the Antonio Ventriglia 1 case to be restricted, where the treaty bodies are engaged in commercial transactions, the case before her was not distinguishable from the Antonio Ventriglia 1 case. 2.5 According to the learned Judge, that being the position, she was bound by the Supreme Court decision. It was -JS- on that basis that the learned Judge dismissed the preliminary issue. 2.6 On 24th April 2023, the Attorney General made an application for joinder to the proceedings as amicus curiae, pursuant to Order 14 / 5 ( 1) of The High Court Rules 1 (HCR) and Order 15/ 6 (2) (b) of The Rules of The Supreme Court2 (RSC) . The grounds on which the application was premised were as follows: (i) The State has a direct and sufficient interest in the subject matter of the appeal; (ii) That the State be permitted to express its views as it is the entity that granted the Appellant immunity from suit in Zambia; (iii) The appeal concerns issues which affect the prerogatives of the State and also which are matters of the public policy; (iv) That this being an issue of immunity from suit in Zambia, the State must speak with one voice. -J6- 2. 7 After hearing the application by the Attorney General on 14th June 2023, the learned Judge deferred the Ruling, to be determined together with the application by the Respondent, for extension of time within which to appeal the Ruling of 26th May 2020. 2.8 In the Ruling of 23 rd January 2024, which is the subject of this appeal, the learned Judge first considered the application for an Order for extension of time. After granting the Order, the learned Judge then proceeded to render a Ruling on the application by the Attorney General. 2.9 Again, the learned Judge made extensive reference to the Antonio Ventriglia 1 case, as she did in the Ruling of 26 th May 2020. In addressing the contention by the Appellant that the court was functus officio in relation to the issue of immunity, having determined the same in the Ruling of 26 th May 2020, the learned Judge was of the view that the contention was made before the granting of the extension of time within which to appeal. That therefore the contention had been overtaken by the granting of extension of time within which to appeal. -J7- 2.10 The learned Judge opined that sufficient basis had been advanced for the application, being that the Attorney General has interest in the subject matter of the suit as it wishes to air its views on the question of the immunity, which it did not have opportunity to do, as it was not a party to the Antonio Ventriglia 1 case. It was on that basis that th e learned Judge granted an Order for joinder of the Attorney General as amicus curiae in the proceedings. (The underlining is ours for emphasis) 3.0 THE APPEAL 3.1 Disenchanted with part of the Ruling, the Appellant has appealed to this Court, advancing two grounds as follows: (i) The learned Judge erred in law and fact when she joined The Attorney General as amicus curiae in the proceedings, notwithstanding that the court had become functus officio, on the issue of immunity of the Respondent after the Ruling dated 26th May 2020; -JS- (ii) The learned trial Judge erred in law and fact, when she held that a sufficient basis had been advanced in the application to join as amicus curiae, as it was not a party to the case of Antonio Ventriglia v Eastern and Southern African Trade and Development Bank without considering the principles of stare decisis. 4.0 ARGUMENTS IN SUPPORT OF THE APPEAL 4.1 At the hearing, Counsel for the Appellant relied on the heads of argument which they augmented with brief oral submissions. In arguing the first ground, the Appellant's contention was that, the High Court had no jurisdiction to join the Attorney General as amicus curiae, to the appeal, having rendered its Ruling on 26th May 2020. That following the said Ruling, the High Court became functus officio with any issue related to the immunity of the Respondent. 4.2 The Appellant drew the attention of the court to Order 14/5 (1) HCR, which grants the High Court inherent jurisdiction to join a party to the proceedings provided -J9- the party can demonstrate sufficient interest in the outcome of the matter. According to the Appellant, the provision suggests that the party shall be added to the proceedings either before or at the hearing. Our attention was drawn to the case of Stanbic Bank v Micoquip Zambia Limited2 , which provided guidance on when a party can be joined to an appeal. 4.3 According to the Appellant, a party can only be joined to proceedings , after a Judgment or Ruling has been delivered, if there is an appeal or an application for a review. That in the absence of both, there was no basis for joining the Attorney General. That at the time the Ruling was being delivered, there was no appeal before this Court, as the Respondent filed the notice of appeal and memorandum of appeal on 24 th February 2024. 4.4 As regards the second ground, it was the Appellant's contention that the Attorney General did not provide sufficient basis to be added to the proceedings as amicus curiae. That in view of the Antonio Ventriglia 1 case, the doctrine of stare decisis dictates that all decisions of the superior courts shall be binding on -JlO- lower courts. That this was not the proper case for the Attorney General to be joined as all matters relating to the immu nity were resolved in the Antonio Ventriglia 1 case, which decision was followed in the court's Ruling of 26th May 2020. 5.0 RESPONDENT'S ARGUMENTS IN OPPOSITION 5 . 1 The Respondent did not file any arguments. Counsel for the Respondent indicated that they will leave it to the court to make a determination. 6 .0 AMICUS CURIAE ARGUMENT'S IN OPPOSITION 6 . 1 Counsel for the amicus curiae relied on the heads of argument filed into Court on 29th July 2024, which h e augmented with brief oral submissions. In response to the first ground, it was submitted that the court below r igh tly took into consideration the case of Stanbic Bank v Micoquip Zambia Limited2 , wherein the Court stated as follows: "Where there is no appeal or application for review, there is no basis for joining the Appellant to the proceedings which are in any event at the end." -Jl 1- 6 .2 According to the Respondent, the court below was on firm ground when it noted that, at the time the Attorney General made its application, the court was delivering a ruling on extension of time within which to appeal; that as such the court was not functus officio. According to the Respondent, the Micoquip Zambia Limited2 case was distinguishable as in that case there was no pending appeal, whilst in casu, there was an application involving an appeal. Having granted the application, the court correctly concluded that the argument that it was functus officio had been overtaken by the Ruling on the application for extension of time. 6.3 The Respondent further submitted that the intended appeal clothed the court below with the requisite jurisdiction. Our attention was drawn to Order 15/ 16/ 17 RSC, which provides for application to add, substitute or strike out parties, in emphasising that an application can be made after Judgment, so long as anything remains to be done in the action. 6.4 In response to the second ground, it was submitted that it was appropriate to include the Attorney General as an -J l2- amicus curiae, so that it could express its views and present its arguments as one of the founding m embers of the Respondent. According to the Respondent, it has commenced an appeal in the Court of Appeal in which it is contending that the Antonio Ventriglia 1 case was decided per incuriam. 6.5 It was further submitted that stare decisis does not operate to prevent a court from r eh earing a case and considering an issue on appeal, that it had previously decided or joining a party. 6.6 According to the Respondent, this matter is of broad public interest and as su ch the Attorney General is entitled to be joined as a party to proceedings in a private suit, whenever it m ay affect the prerogatives of th e State. 7 .0 ANALYSIS AND DECISION 7. 1 We have considered the record and in particular the Ruling being impugned and the arguments by the parties. The first ground attacks the learned Judge's decision to join the Attorney General to the proceedings, when according to the Appellant, the court h ad become -J13- functus officio} after delivery of its Ruling of 26th May 2020. Attendant to that was the pivotal argument based on the Micoquip Zambia Limited2 case, that at the time the Attorney General made its application and at the time it was joined, there was no appeal pending before the Court of Appeal. From the onset, it is evident that the application by the Attorney General for joinder was made pursuant to Order 15/6 (2) (6) RSC and not Order 15 / 6 / 1 7 RSC. The latter is therefore not applicable to this matter. We shall revert to this issue in due course. 7 .2 It is evident that after the court's Ruling of 26th May 2020, the Respondent intended to appeal to the Court of Appeal. It was in that respect that an application was made for extension of time within which to appeal. It is also evident that at the time the Attorney General made its application, its intention as clearly demonstrated in its summons, affidavit in support and skeleton arguments was to be joined to the appeal and not the proceedings in the court below. 7. 3 An appeal in civil matters is launched by filing of a notice of appeal in accordance with Order 10 / 3 ( 1) CAR. -Jl4- There is no evidence in this matter that this was done. We note that tactfully the learned Judge deferred the Ruling on j oinder and only handed it down after granting the extension of time. The granting of the Order for extension of time cannot be equated to an appeal, when the notice of appeal and memorandum of appeal have not been filed into court. 7.4 The Micoquip Zambia Limited2 case, is instructive on when a party can be joined to an appeal. In that case the Supreme Cou rt had this to say: "We therefore agree with the Appellant that there is merit in the first ground of appeal that the application for joinder was incompetent because it was made long after the Judgment had been de livered between the Respondent and Jes and in any event there was no appeal as Jes had failed to meet the condition for the appeal nor was there any application for review. It follows also that the second ground of appeal must inevitably succeed because the court be low had become functus officio as the -JlS- Judgment had been de livered and there was no pending appeal or review to warrant the joinder." 7.5 Premised on the Micoquip Zambia Limited2 case, the application for joinder before the learned Judge was incompetently before her and she also had become functus officio as there was no application for review before her nor an appeal pending before this Court. The Order for joinder of the Attorney General is therefore accordingly set aside. 7. 6 The first ground having succeeded, the second ground becomes otiose. 7.7 Before we leave this matter, we wish to observe that of late there has been a number of applications by persons wishing to be joined as amicus curiae to proceedings. Curiously these applications are being made under Order 14/5 (1) HCR and Order 15/ 6 (2) (b) RSC as was the case in this matter. These provisions clearly deal with applications for joinder of a party to a suit and have no bearing on applications relating to amicus curiae. -J16- 7 .8 The learned authors of Black's Law Dictionary1 define amicus curiae as follows: "A person who is not a party to a law suit, but who petitions the court or is requested by the court to file a brief in the action, because that person has a strong interest in the subject matter." 7.9 In h is article dated 8 th October 2024, th e learn ed author, Tobb iu s Hamunkoyo, titled - The Role and Procedure of Amicus Curiae in Court Proceedings and Its Implication in Zambia2 , h ad th is to say: "The Amicus Curiae, or {friend of the court), plays an important role in court proceedings by providing expertise and perspectives that may not be fully represented by the litigants .... The primary function of an amicus curiae is to assist the court in making decisions that are balanced and guided by broader legal principles. We should understand that amici are not parties to the proceedings and do not represent the interests of either side .... " -Jl 7 - 7 .10 In the case of Anderson Kambela Mazoka & Others v Mwanawasa & 2 Others3 , the Supreme Court emphasized that the role of the amicus curiae is distinct from that of litigants. The court went on to highlight that amici are not additional parties, but merely assist the court by clarifying intricate legal points to facilitate informed judgments. 7. 11 In short, what the afore stated means is that the court has the discretion to admit or permit and not join amicus curiae, control and regulate their participation. They are not parties to the case, and they are therefore not expected to take over arguments of the parties. 7. 12 In view of what we have stated, it is inappropriate the ref ore for applications to be made under Orders 14 / 5 (1) HCR and 15/6 (2) (b) RSC , which are restricted to parties. Applications for amicus . . cunae 1n our jurisdiction fall under common law and should be treated as such, with the exception of the Constitutional Court, where there are provided for by statute under Section 12 of the Constitutional Court Act (CCA) . -J l 8 - 8.0 CONCLUSION 8.1 The appeal having succeeded, we order that costs in this appeal in favour of the Attorney General. o be taxed in default of agreement. ~5 : : ~ OURT OF APPEAL JUDG~ J . C SHI C. KeMAKUNGi COURT OF APPEAL JUDGE A. M. BANDA-BOBO COURT OF APPEAL JUDGE