Kalymnos Processing Limited and Anor v Konkola Copper Mines (In Liquidation) (Application 60/2023; CAZ/08/454/2022) [2023] ZMCA 429 (2 October 2023)

lN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) CAZ/08/454/2022 Application 60/2023 BETWEEN: KALYMNOS PROCESSING LIMITED ALBERTINA KASHIBA ·~tlC OF lA "JRI 0~ A. PP .. 1•< Appellant 2 11d Appellant AND KONKOLA COPPER MINES PLC (IN LIQUIDATION) Coram: Mchenga DJP, Banda-Bobo and Sharpe-Phiri, JJA on 20th September 2023 and 2 nd October 2023 For the Appellants: Mr. L. Yeta of Central Chambers & Mr J. Sinkala of Justin Legal Praclitioners For the Respondent: Mr. N. Chaleka of Messrs ECB Legal Practitioners RULING Cases referred to: 1. Evans Milimo v Zambia Daily Mail and Attorney General, Appeal No. 24 of 202.l, CA 2 . New Horizon Printir1g Press Limited V Waterfield Estates Limited Commissioner of Lar1ds {2012) Vol. I. ZR f<eqislation referred to: 1. Court of Appeal Rules, Statutory Instrumer1t No. 65 of 20 I 6 2. f-ligh Court Rules, Clw.pter 27 of the Lows ofZamhia 3. Rules of the Supreme Courr. of England (White Book) 1999 Edition Rl 1. INTRODUCTION 1.1 This is a Ruling on a Preliminary Objection brought by the Appellants on 19 September 2023 to the Respondent's application to set aside a Mareva injunction granted by Ngulube, Jon 30 June 2023. 2. BACKGROUND TO THE MOTION 2.1 The brief background to this matter is that the Appellants brought an application for a Mareva injunction before a single Judge of this Court on 27 April 2023. The summons was heard by the single Judge in the absence of the Respondent. By ruling dated 30 June 2023, the Judge granted the injunction pending determination of an inter parte application. 2.2 The Respondent brought an application before the single Judge to stay the ex-parte Mareva injunction which was declined by the Judge by Ruling of 20 July 2023 on the basis that the Respondent had already filed an application before the same Judge on 7 July 2023 to set aside the ex-parte Mareva injunction. 2.3 Before the Judge could hear the Respondent's application to set aside the Mareva injunction, the Appellants raised a preliminary objection to the Respondent's application to set aside. Counsel for the Appellants argued that the hearing of Mareva injunction application was a scheduled inter-parte hearing and as such the R2 application to set aside the Ruling of 30 June 2023 ought to go to the full bench of the Court and not to a single Judge. 2.4 By Ruling of 31 July 2023, the single Judge upheld the preliminary objection of the Appellants' counsel and held that she did not have jurisdiction to entertain the Respondent's application to set aside the Ruling of 30 June 2023 and dismissed it accordingly. 2.5 This prompted the Respondent to file a Motion before the full Court on 10 August 2023 to set aside the Ruling of the single Judge of 30 June 2023. The Motion was set for hearing on 20 September 2023, however the Appellants filed a :-l"otice of Motion to raise a preliminary objection on 19 September 2023 which was served on the Respondents' Advocates a few minutes before hearing. We provided the Respondents an opportunity to respond to the preliminary objection and the Appellants having a right of reply and thereafter we would render our ruling. This is therefore our Ruling on the same. 3. NOTICE OF MOTION TO RAISE PRELIMINARY OBJECTION 3.1 The Appellants' Notice of Motion to raise preliminary objection was filed on 19 September 2023 and made pursuant to Order VII Rule l of the Court of Appeal Rules as read together • .,.;th Order 2 Rule 2, Order 33 and Order 14A of the Rules of the Supreme Court of England 1999 Edition. It was anchored on the following 2 grounds, namely: R3 l. Whelher the RespondEmts' applicaiion ought riot. be set aside Ji>r irregularity; 2. 1,v'het.h.l:'r I.his llonourablc Court ouyht not e:>.punge paragraph 9, 10- (i),(ii), (iii), (iv), (v), (ui), (ix, (x), (x.ii), 11, 12, 13, 14, 15, 16, 17, 18, 20, 22, 23, 24 a.nd 27 of the affidavit in support filed 1 ()<i: Auyust 2023 by the Hespondent on rill:' grounds that the same contain e_,ctra.neow; matter by 1.1. Iay of irrl:'leva11L/ unrelaled matters, object.ions, le9a/ arguments, opinions, conclusions arid hearsay l:'Videru.:e::> 3.2 In support of the Motion, the Appellants filed an affidavit in support deposed to by Lubosi Yeta, the Advocate with conduct of the rnatter on behalf of the Appellants. He deposed that they had filed an application for a Mareva injunction to stop the Respondent frmn extcrnali:;:ing and/ or selling off its assets pending determination of the main appeal which was filed on 27 April 2023. That the said application was made ex-parte but the single . Judge of this Court ordered for it to be heard inter-pa.rte on 22 May 2023. That the sumrnuns was subsequently served on the Respondent with notice of the hearing. 3.3 That on the return date, the Respondent did not appear before Court and the single Judge inquired whether the Respondent had been served ·which service was confirmed by the Appellants and the single Judge proceeded to determine the matter and rendered a Ruling on 30 ,June 2023 granting the :V1areva injunction ex-parte until in ter-parte determination. R4 3.4 That following same, the Respondent filed an application to set aside the Mareva injunction on 7 July 2023 before the single ,Judge, but by the Ruling of 31 July 2023, the single Judge dismissed the application on account of lack of jurisdiction to entertain the said application. In the said Ruling, the single Judge determined that the prior Ruling of 30 June granting the Mareva injunction had been made inter-parte and it had therefore become functus officio. 3.5 The Respondent filed a motion on 10 August 2023 before the full bench of this Court. The Appellants raises issue and contends that the Respondent did not bring this application \\'ithin the stipulated 10 days and neither did it obtain leave to file the application out of time. That in any event, there had been inordinate delay to bring this application. 3.6 That it is the Appellants' position to challenge the Respondent's application to discharge the Appellants' Mareva injunction on the ground that it is irregUlarly before Court and that notwithstanding, the paragraphs 9, 10 (i) ,(ii), (iii), (iv), (v), (vi), (ix, (x), (xii), 11, 12, 13, 14, 15, 16, 17, 18, 20, 22, 23, 24 and 27 of the affidavit in support filed on 10 August 2023 were extraneous to the matter. 4.0 AFFIDAVIT IN OPPOSITION TO MOTION TO RAISE PRELIMINARY OBECTION 4. l The Respondent filed an affidavit in opposition on 21 September 2023 contending that the single Judge in her Ruling of 30th June 2023 was very categorical that the Mareva injunction had been RS granted ex-parte pending inter-pane hearing and the Respondent's actions thereafter were premised on the said Ruling. 4.2 Further, upon the Respondent being served with the supposed Mareva injunction, it realized that the Appellants had hidden material facts from the single Judge hence the application to set aside the ex-parte Mareva injunction which was made on 7 July 2023. 4.3 That the said application was made as an independent application with the intention of alerting the single Judge of this Court 011 material facts hidden from the Court and prompting the said Court to set aside the Mareva injunction Ruling. The said application was however made inter-parle and heard on 20 July 2023. At the said hearing, the Appellants sought an adjournment with a view to raise a preliminary objection. The single Judge of this Court then rendered a Ruling on 20 July 2023 in which she was very categorical that the Mareva injunction Ruling had been made ex parte 4.4 Due to the setting aside of the application made at the instance of the Respondent, the Court was obligated to hear the said application which the Court set to hear on the 27 July 2023 in its Ruling of 20 July 2023. That before the setting aside application could be heard, the Appellants filed a motion to raise a preliminary objection on the 24 July 2023 and advanced the argument that the Mareva injunction Ruling was in fact heard inter-parte and that the R6 single Judge had no jurisdiction to enlertain the application to set aside the same as it ought to be made to the full Court. 4.5 The single Judge of this Court heard lhe preliminary objection on 31 July 2023 and upheld the objection. She ruled that she had no jurisdiction to enterlain the application to set aside the Mareva injunction as the same should have been made to the full Court. 4.6 That exactly 9 days after the said Ruling, on the 10 August 2023 the Respondent launched a motion before the full Court to set aside the ex-parte Mareva injunction Ruling and took out an application to stay the same pending determination of the notice of motion before this Court. That the Respondenl's main motion and stay application were cause listed to be heard on 20 September 2023 but that on this date, the Appellants notified the Court that they had filed another application to raise preliminary objection and that this Court directed the same preliminary objection to be heard first. This is the correct sequence of facts conlrary to what the Appellants were attempting to portray. 4.7 That the Notice of Motion filed before the full Court on 10 August 2023 is to set aside the ex-parte Mareva injunction for failure by the Appellants to make full and frank disclosure of material facts to the single Judge. 4.8 Until the 31 July 2023, the single Judge was categorical that it would hear the Respondenl inter-parte when she reviewed and reversed this posilion. That if there is therefore to be any computation of time, the time started running on the 31 July of R7 2023 when the single Judge of this Court reviewed its decision and in any event had the Respondent moved the full Court or applied to file the motion before the full Court out of time, the same would not have been tenable as the single Judge issued clear orders of the Court that there was a pending inter-parte hearing. 4.9 That the contents of paragraphs 15 and 16 of the affidavit in support which the Appellants seeks to assail are not extraneous but contain facts which the Appellants have gone to great lengths to hide from this Court. 5.0 APPELLANTS' AFFIDAVIT IN REPLY 5.1 The Appellants filed their affidavit in reply on 22 September 2023 in which they clarified that the sequence of events is as tabulated in their earlier affidavit in support save to add that the single Judge duly acknowledged the accidental omission and rectified its record to the extent of replacing "ex'' with "inter" which was innocently omitted from the Ruling of 30 June 2023. 5.2 The Appellants reiterated that the single Judge noted that the Respondent herein was served and for reasons known to themselves, they did not show up without any reasonable excuse tendered to date. That the Respondent has attempted to shift the blame to the single Judge when as a matter fact they did not even attempt to conduct a search to see what had transpired in the proceedings at the return date to their own detriment. That the R8 Appellants disclosed the material facts relevant to the issue presented before the single Judge as required. 5.3 The Appellants contended that as a matter of fact, the computation of time started running from the 30 June 2023 when the Ruling granting the Mareva injunction was rendered. The Appellants further repeated the contents of its earlier affidavit. 6.0 ARGUMENTS BY PARTIES 6. l The parties filed skeleton arguments on diverse dates in support of their respective position, same will only be reproduced and or referred to where necessary. 7. 0 ANALYSIS AND DECISION OF THIS COURT 7.1 The Appellants' main point of contention under the first ground in their Notice of Motion is whether the Respondent's application ought to be set aside for iITegularity, particularly, that the application to the full Court to set aside the Mareva injunction was not filed within 10 days of the single Judge's decision. 7.2 The Appellants placed reliance on several authorities, including the provisions of Order 59 Rule 14 sub rule 12 of the Rules of the Supreme Court of England 1999 Edition (White Book) which requires as follows: R9 '~n appeal to the full court against a decision of a single Lord Justice (where such appeal lies as of right) is by afresh application made within 10 days of the single Lord Justice's determination ... The ten (10) day period runs from the date on which the single Lord Justice gave his decision and the application by way of appeal to the full Court must be set down within that ten (10) day period." 7.3 Our quick response in relation to this ground is premised on the guidance we had previously provided in our Ruling under the case of Evans Milimo v Zambia Daily Mail and Attorney General Appeal No. 24 of 2021. In that case, the Respondent challenged the Appellant's Notice of Motion for allegedly having been brought out of time contrary to provisions of Order 59/ 14/41 RSC. We held at page Rl4 of the Ruling as follows: "We agree with Counsel for the Respondent that Section 9(b) of the Court of Appeal Act does not provide for a time frame within which an application thereunder can be made. However, this Court has in numerous decisions guided that such an application, as the one in this matter, should be made within a reasonable timeframe. We have guided that 14 days would be reasonable time. We have noted the Respondent's arguments regarding Order 59/14/41 RSC. We are of the view that the import of this Order has been misapprehended. Our reading of this Order is that it relates to appeals and not an application such as the one before us. This not being an appeal, our view is that it does not apply." R 10 7.4 In this regard, we reiterate the aforesaid view in relation to the Appellants' first ground in their notice of motion in this action. The said Order 59 Rule 14 subrule 12 of the White book relied on by the Appellants relates to appeals whereas the application before us is not an appeal. The main Motion before us relates to an application to set aside a ruling of a single Judge brought pursuant to Section 9 (b) of the Court of Appeal Act. The said section empowers the full Court to vary, discharge or reverse an order or decision in a civil matter given by a single Judge of the Court. 7.5 There is no time frame provided for bringing an application such as this one under Section 9(b) of the Court of Appeal Act. Therefore, the argument by the Appellants' Counsel that an application to set aside a decision of a single Judge ought to be brought before a full Court within 10 days is totally misconceived. We have guided in our previous decision mentioned above that the application must be brought \Vlthin a reasonable time. \Ve have also said that 14 days from the date when the decision is made by the single Judge would be a reasonable timeframe. This, however, would depend on the circumstances of each case. 7 .6 The question therefore before us is whether the application to set aside the decision of a single Judge was brought to the full Court within a reasonable period. The facts of this case reveal that the application for a Mareva injunction brought by the Appellants was heard in the absence of the Respondent. A ruling granting the injunction was given on 30 June 2021. The Judge indicated that it would be heard inter-parte at some later date. R11 7. 7 The several Rulings of the learned single Judge of this Court show that the Judge undoubtedly indicated that the Ruling granting the Mareva injunction on 30 June 2023 was made ex-parte pending inter-parte hearing. 7.8 The Respondent proceeded on this assumption that it would be heard inter-parte at some point. However, the learned single Judge changed her position in her subsequent Ruling of 31 July 2023, after being satisfied that the Respondent had been given notice of the hearing of the Mareva injunction. 7. 9 Given that the Respondent expected to be heard iraer-parte after the ruling of 30 June 2021 and 20 ,July 2021, it is not reasonable to have expected the Respondent to have filed an application to the full Court v.iithin 14 days from 30 June 2023. It was only after the hearing of the application to set aside and following the Court ruling of 31 July 2021, that the Respondent became aware that it was required to apply to the fuJl bench. 7. 10 The Respondent filed a Motion to the full bench on 10 August 2021, 9 days after the last Ruling of the single Judge. We are of the view that the Respondent cannot be faulted for proceeding in the manner it did. We find that it took appropriate steps ,v;thin a reasonable time given the peculiar circumstance of the case herein. The first ground in the Notice of Motion therefore fails. 7 .11 The further contention by the Appellants is whether this Court ought to expunge the Respondent's paragraphs 9, 10 (i),(ii), (iii), (iv), R 12 (v), (vi), (ix, (x), (xii), 11, 12, 13, 14, 15, 16, 17, 18, 20, 22, 23, 24 and 27 of the affidavit in support of motion filed on 1011o August 2023 for being extraneous by way of containing irrelevant, unrelated matters, objections, legal arguments, opinions, conclusions and hearsay evidence. In augmenting this ground, the Appellants relied on the provisions of Order 41 Rule 5 of the White Book 1999 Edition, which provides in part that: "Contents of affidavit (0.41, r.5) (1) Subject to- (a) (e) ... an affidavit may contain only such facts as the deponent is able of his own knowledge to prove. (2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof." 7.12 This issue of the manner and content of affidavits has been a subject of judicial pronouncements since time immemorial. There is clear guidance from the authorities on what the affidavit filed before the Courts ought to contain. 7.13 For instance, the High Court in the case of New Horizon Printing Press Limited V Waterfield Estates Limited Commissioner of Lands opined at pages 274 to 274 as follows: "1 agree that it is highly undesirable for advocates to file affidavits relating to contentious matters (See Chikuta v Chipata Rural Council (5)). However, in view of the fact that the essential facts RB relating to this application are not contentious, I will not expunge the affidavit by Ms. Chimuka. " 7.14 Further, several decisions in this jurisdiction have relied on the provisions of Order 5 of the High Court Rules which provide for the form and content of an affidavit to be filed before that Court. Of particular interest, Order 5 Rules 15 and 16 of the HCR provide as follows: "15. An affidavit shall not contain extraneous matter by way of objection or prayer or legal argument or conclusion. 16. Every affidavit shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true." 7. 15 In the present case, we have had the opportunity to review the affidavit in support of the motion filed on 10 August 2023 by the Respondent, and to carefully dissect the specific paragraphs sought to be challenged by the Appellants. We have no reason to question the belief or factual perception of the contents therein as deposed by the deponent, Celine Meena Nair, the provisional liquidator of the Respondent. 7. l 6 The said paragraphs constitute a factual account of events as she perceives them herself and believes them to be. \Ve find no real basis upon which to expunge the said paragraphs from the affidavit in support of the application. This ground also lacks merit and is dismissed accordingly. R 14 ' . 7 .1 7 The entire motion for the Appellants fails for want of merit and is dismissed as such with costs to the Respondent. DEPUTY JUDGE PRESI ~ , - - -~ -~ A. M. Banda-Bobo· ~ - Sharpe-hlri COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE R 15