Fox Motors Spares Limited v Khalid Gulan Mohammed Saleh and Anor (Appeal No 55/2017) [2017] ZMCA 493 (31 October 2017)

(Civil Jurisdiction) BETWEEN: Appeal No 55/2017 KHALID GULAN MOHAMMED SALEH COMPANY LIMITED 1 ST RESPONDENT 2ND RESPONDENT CORAM : Mchenga,DJP, Chishimba and Kondolo, JJA pt August, 2017 and 31s t October, 2017 For the Appellant: Mr. M. Mutemwa , SC of Messrs Mutemwa & Associates For the Respondent: Mr. G . D. Chiban gula of Messrs G. D. C. Chamber s and Mr. K. Kaunda of Messrs Ellis & Co. RULING CHISHIMBA, JA, delivered the Ruling of the Court CASES REFERRED TO: 1. 2. 3. 4 . 5. 6 . 7. 8 . 9 . Kalyoto Muhalyo Paluku Vs. Granny's Bakery Limited and Oth ers? QQ6) Z. R. 11 9 Arthur Nelson Ndhlovu and Another Vs. Al Shams Building Material Company Limited and Another (2 002) Z. R. 48 Philips Vs. Copping (1 935) 1 K. B. 15 J amas Milling Compan y Limited Vs. Imex International, PTY Lim ited Suprem e Court Judgment No. 2 0 of 2002 Za mbia Reven ue Authority Vs. Hitech Trading Company Limited SCZ JudgmentNo.40of 2 000 Sai Physioth erapy Clinic Inc. Vs. Kuch er [201 5] ONCA (Ontario Court of Appeal) 7 11 Sable Transport Limited Vs. The Commissioner of Lands and Attor n ey General Appeal No, 132/201 4 Zulu Vs. Avonda le H ousing Proj ect Limited (1982) ZR l 7 2 Augustine Ka p e mbwa Vs. Dann y Maimbolwa a nd Attorney Gener al SCZ Judgm ent Number 4 of 1981 ~ s -R2- 10. Banda Vs. Chief Immigration Office SCZ Judgment No. 16 of 1994 11. Kenmuir Vs. Hattingh (1974) Z. R. 162 12 . Mususu Kalenga Building Limited, Winnie Kalenga and Richmans Money Lenders Enterprises (S. C. Z. Judgment No. 4 of the 1999) 13. Barclays Bank Zambia Plc Vs. Zambia Union of Financial Institution and Allied Workers SCZ Judgment Number 12 of 2007 14. Daniel Mwale Vs. Njolomole Mtonga (Sued as Administrator of the Estate of the Late Gabriel Siwonamutenje Kapuma Mtonga) and The Attorney General (SCZ Judgment No. 25 of 2015) 15. Crossfieled and Sons Limited Vs. Tanian [1900] 2 Q. B. 629 16. Zambia Telecommunications Company Limited Vs. Aaron Mweene Mulwanda, Paul Ng'andwe SCZ Judgment No. 7 of 2012 17. Zambia revenue Authority Vs. Hitech Trading Company Limited SCZ Judgment No. 40 of 2000 18. Re Tarling [ 1979] 1 ALL ER 981 19. Falker Vs. Scottish Imperial Insurance Company (1886) 34 Ch 234 20. G. F. Construction Limited Vs. Rudnap (Z) Limited and Another (1999) ZR 21. Ndongo Vs. Moses Mulyango, Roostico Banda SCZ Judgment No. 4 of 22. We~y Mulungushi Vs. Catherine Bwale Mizi Chomba (2004) Z. R. 96 (SC) 23. Gideon Mundanda Vs. Timothy Mulwani and The Agricultura l Finance Co. Limited and S. S. S. Mwiinga (1987) Z. R. 29 (SC) 24. Mobil Oil Zambia Limite d Vs. Lotto Petroleum Distributors Limite d ( l 977)ZR 336 25. Ladd v Marshall (1954) 3 ALL ER 745. LEGISLATION AND OTHER WORKS REFERRED TO: 1. The Court of Appeal Act No. 7 of 2 01 6 2. The Rules of the Supreme Court of England (White Book) 1999 Edition 3 . Halsbury's Laws of England 3 rd Edition, Volume 22. 4. Snell's Principles of Equity, 20th Edition, Sweet and Maxwell, 1966 5. Halsbury's Laws of England 3 rd Edition, Volume 36 6. Lands Act, Chapter 184 of the Laws of Zambia I L I t ' -R3- The Appellant, pursuant to Section 24 (l)(b)(i) and (ii) of the Court of Appeal Act, raised a motion to adduce further / fresh evidence on appeal. According to the supporting affidavit, after delivery of the High Court Judgment dated 6 t h October, 2016 , the Appellant came across documentary information through a 'whistleblower'. The documentary evidence reveals that at the date of the contract between the parties on 28th December, 2002 , the 1st Respondent was not eligible to own land in Zambia. The 1st Respondent was a mere holder of an Entry permit dated 25th March, 2003 until 23rd March, 2012 when he was issued with a Zambian National Registration Card. The entry permit possessed by the 1st Respondent at the d ate of the contract merely allowed the 1st Respondent to enter and re-enter and to remain in Zambia and engage only in the occupation of Director. A non-Zambian national can only legally own land if he is either a permanent/ established resident or has obtained consent of the President in writing under his hand. The Applicant deposed that the new evidence could not be discovered with reasonable diligence as the sale agreement b etween ' I • -R4- the parties had not reached the stage of securing State Consent to assign. The status of the 1st Respondent was concealed to the Appellant and the Court below. The new evidence raises the question of whether or not the contract can be enforced by specific performance or otherwise. The 1st Respondent opposed the motion to adduce further /fresh evidence in his affidavit dated 28th August, 2017. The Respondent states that the appellate Court should not interfere with the finding of fact made by the Court below that the Appellant and the 1st Respondent entered into a legally binding contract of sale. Further, that none of the parties questioned the legality of the contract of sale in the Court below. The application was an attempt to raise new issues that were not raised in the Court below for determination. In respect of the entry permit, the 1st Respondent states that he had submitted all the relevant documents pertaining to his residence in Zambia to Messrs Sharpe and Howard Legal Practitioners. This included the entry permit, whose life span was extended on 21 st March, 2003. Further, that the Entry Permit is a public document issued by an official at the Immigration Department which is readily accessible and available for inspection by any member of the public ' ' -RS- including the Applicant. In addition, that he was legally competent to enter into a contract of sale dated 28th December, 2002 which does not per se transfer ownership of property as a lleged by the Appellant. On 23rd March, 2012, the 1st Respondent was issued with a Zambian National Registration Card which qualifies him to own land in Zambia. By virtue of h aving been issued with a Zambian National Registration card on 23 rd March, 2012, legally qualifying him to own land in his name, the alleged defect or irregularity if any on his part has s ince been cured. At the time of trial and on the date the Judgment granting an Order for specific performance of the contract of sale was delivered on 6 th October, 2016, the 1st Respondent had the legal capacity to own land as a citizen of Zambia. The alleged further /fresh evidence could have been discovered by the Applicant with reasonable due diligence on its part having been submitted to Messrs Sharp and Howard Legal Practitioners. Therefore, the application does not meet the required threshold test to warrant the Court to grant an Order to adduce further evidence. The evidence will not affect the Judgment in anyway and which does not raise any questions of enforceability of the contract of sale. . ' -R6- The Applicant in the affidavit in reply dated 29th August, 2017, states that entry permits do not expire but merely cease to b e valid where the holder fails to either; enter the country within 6 months of issuance, or the holder is absent from the country for a period of more than 6 months without notification to the Immigration Department of his return or absence from Zambia for a period of more than 12 months. The lifespan of the entry permit was not extended on 21 st March, 2003. The Applicant further states that a contract of sale for la nd qualifies as a memorandum in writing. The irregularity 1n issue cannot be cured retrospectively. Therefore the further evidence raises a point of law. The Applicant could not with due diligence have discovered that the 1st Respondent was not eligible to own land as h e had carried himself as though he was eligible . The Appellant filed into Court skeleton arguments dated 21 s t July, 2017. The Appellant argued that the evidence sought to be produced raises a question of law namely; whether or not a non Zambian, who is neither an established or permanent resident can enter into a legally binding agreement to purchase land without the President's consent in writing? I ' -R7- The Appellant s u bmits th at s u ch an agreement is illegal, and cannot be en forced by specific performance, or any other means as th e 1st Respondent did not meet the requirements of Section 3 (3) of the Lands Act. We were referr ed to th e case of Kalyoto Muhalyo Paluku Vs. Granny's Bakery Limited and Others <11 where the Supr eme Court discussed the categor ies of persons who may own land in Zambia. The Ap pellant contends that it is not precluded from p r odu cing the intend ed evidence because a point of law can be raised a t any stage of the proceedings. We were refer red to the case of Arthur Nelson Ndhlovu and Another Vs. Al Shams Building Material Company Limi ted and Another <2J in which the Suprem e Court stated t h at there can be no estoppel against a statute. We were fur ther referred to the case of Philips Vs. Copping <3J where the Court stated that illegality once brought to the attention of the Court supersedes any question of pleadings. It is the Appellant's contention that t he 1st Appellant was not eligible to own land in Zam bia at the time the contract of sale was executed. Further, that th e 1st Respondent was only issued with a National Registration Card on 23rd March, 2012. -R8- The App ella n t subm itted that the motion is anchored on the p r ovisions of Section 24 (l)(b)(i) and (ii) of the Court of Appeal Act as well as Order 59/ 10/ 18(2) of the Rules of the Supreme Court of England (White Book) 1999 Edition. Reference was made to a passage from Halsbury's Laws of England 3 rd Edition at paragraph 1670 where th e learned authors state that a Judgment may b e rescinded if new evidence is discover ed that would have had a material effect on th e decision of the Court provided the evidence is new a n d could not be d iscover ed with reasonable diligence. A position stated by th e Supreme Court in the cases of Jamas Milling Company Limited Vs. Imex International PTY Limited f4J a nd Zambia Revenue Authority Vs. Hitech Trading Company Limited f5J. It was the Appellant's submission that the fact that the evidence could , with diligence, h ave been discovered is not necessarily a bar to the a dmission of fresh evidence . We were r eferred to the Canadian case of Sai Physiotherapy Clinic Inc. Vs. Kucher f6J wh ere the Court allowed fresh evidence to be admitted notwithstanding the fact that the evidence was not necessarily fre sh eviden ce. Th e evidence was admitted as it was relevant to an ongoing action as the Respondent in that case intended to pursue a counter -R9- claim. The Appellant submitted th at the Supreme Court on 6 th April, 201 7 admitted fresh evidence in the case of Sable Transport Limited Vs. The Commissioner of Lands and Attorney General f7J. The Appellant urged the Court to admit the fresh evidence. Th e 1s t Respondent in the heads of argument in response dated 28 th August, 2017 , argued that t he lower cou rt having found as a fact that the Appellant and the 1st Respondent had entered into a legally binding contract, the appellate Court ought not to interfere with this findings of fact made by a trial Court. We were drawn to the attention of the following cases; Zulu Vs. Avondale Housing Project Limited (81, Augustine Kapembwa Vs. Danny Maimbolwa and Attorney General f9l, Banda Vs. Chief Immigration Office f10J and Kenmuir Vs. Hattingh r111. The decisions in the above cited cases was to the effect that an appellate Court will only interfere with findings of fact tha t are either perverse or not supported by any evidence. The 1s t Respondent argued that the a lleged non-eligibility of the 1st Respondent to own land in Zambia was never raised in the Court below and cannot be raised on appeal. The cases of Mususu Kalenga Building Limited, Winnie Kalenga and Richmans Money Lenders Enterprises (1 21, Barclays Bank Zambia Plc Vs. Zambia Union of Financial -R10- Institution and Allied Workers (131, Daniel Mwale Vs. Njolomole Mtonga (Sued as Administrator of the Estate of the Late Gabriel Siwonamutenje Kapuma Mtonga) and The Attorney General f1 4J Crossfieled and Sons Limited Vs. Tanian f1 5J and Arthur Nelson Ndhlovu and Another Vs. Al Shams Building Material Company Limited and Another f2J were cited where the Court h eld , in respect of issues not raised in the Court below, that they may not be raised on appeal. The Respondent argued that the application by the Appellant to adduce further evidence does not meet the test for introduction of fresh evidence before a n appellate Court. Further, that the nature of fresh evidence is that it is evidence which a party could not have put forwa rd at trial on the ground that the same was not accessible. We wer e referred to the cases of Zambia Telecommunications Company Limited Vs. Aaron Mweene Mulwanda, Paul Ng 'andwe f16J, Zambia revenue Authority Vs. Hitech Trading Company Limited f17J, Re Tarling flBJ and Falker Vs. Scottish Imperial Insurance Company f1 9J where the Court laid down the criteria employed by an appellate Court when determining whether or not to admit fresh evidence. Further, the Appellant drew ou r attention to the provisions of Order 59/ 10/9 of the Rules of the Supreme Court of England (White Book) 1999 Edition wh ich -R11- stipulates the conditions to be met before fresh evidence is adduced on appeal. The Appellant argued th at the case of Jamas Milling Company Limited Vs. lmex Int ernat ional PTY Limited f4J cited by the Appellant is distinguishable from the facts in casu as the entry permit in issue was submitted to Messrs Sharp and Howard Lega l Practitioners. Further it was readily accessible at the Immigration Department as a public document. It was contended that the purported fresh evidence is not material and would not have affected the decision of the Court. At the time the lower Court granted an order for specific p erformance, the 1s t Respondent qualified to own land in Zambia . Further , that the alleged non-eligibility of the 1s t Respondent does not render the contract of sale dated 28th December, 2002 illegal, null and void but merely unenforceable. The appellant fortified its argument by citing the case of G. F. Construction Li mit ed Vs. Rudnap (Z) Limited and Anot her r201 where the Court held that the absence of an Investor's licence did not render the contract illegal or null and void. The contract in issue was rendered irregular and curable. -R12- The 1st Respondent contended that being a holder of a National Registration Card, he is eligible to own land in Zambia. Fur ther, that by the time th e Cour t granted the Order for specific performance the alleged eligibility of the 1st Respondent was cured. In addition, the 1st Respon dent argu e d t h at a contract of sale by its nature does not transfer ownership of property. We were referred to the case of Ndongo Vs. Moses Mulyango, Roostico Banda f2 1J where the Court echoed the decision in G. F. Construction Limited Vs. Rudnap (Z) Limited and Another r2 01when it stated that; "We take judicial notice of the fact that a Contract of Sale of Land does not per se transfer ownership of land to the buyer. Much more is required. There must be a deed of assignment executed by the parties which must be lodged with Registrar of Lands together with the necessary consents or licences. " Our attention was also drawn t o the cases of Wesley Mulungushi Vs. Catherine Bwale Mizi Chomba f22J and Kalyoto Muhalyo Paluku Vs. Granny's Bakery Limited and Others r11 in which the Court discussed eligibility to own land in Zambia and the conveyancing procedure of ownership of land. It was su bmitted that parties to the contract ought to be presumed to contemplate a legal rather than an illegal course of . ' -R13- proceedings as the contract in issue 1s capable of being fulfilled without breach of the law in line with the Supreme Court holding in Gideon Mundanda Vs. Timothy Mulwani and The Agricultural Fi nance Co. Limited and S . S . S . Mwiinga f23J. Counsel went on to argue that the 1st Respondent ought to be protected as an innocent purchaser for value without notice. We were referred to a passage from Snell's Principles of Equity, 20t h Edition, at page 44 where the learned authors discuss the issue of an innocent purchaser for valu e without notice. The 1s t Respondent submitted that the Appellant has not demonstrated material evidence to warrant the grant of an order to admit the a lleged fresh evidence on appeal. The Court was u rged to dismiss the motion for lack of merit. The Appellant filed skeleton arguments in reply. It was argued that the Appellant did not raise the issue touching on the 1st Respondent's entry permit and eligibility to own land as it was unaware of these facts until after the Judgment of the High Court. Further, that the status of the 1s t Respondent raises the issue as to whether the contract entered into between the Appellant and the 1st Respondent can be specifically enforced. . ' -R14- The Appellant contended that the authorities cited by the 1st Respondent in relation to pleadings are distinguishable from the facts in casu as the fresh evidence raises question s of law. Further, that the App ellant disputes th e 1st Respondent's assertion that he submitted a ll documents to Messrs Sharp and Howard Legal Practitioners. The transaction in issu e did not reach the stage of secunng state consent to assign. In addition, that the assertion by the 1st Respondent is not supported by evidence. It was further argued that the 1st Respondent in fact objected to the evidence by Tiziana Marrieta the Advocate in respect of the conveyancing transaction at the time. Consequently Tiziana Marrieta's witness statement was expunged from the record. The Appellant contended t h at the fact the documents are public documents does not necessarily entail that the Appellant would have discovered the evidence or known the status of the 1s t Respondent. Further, that contrary to the 1st Respondent's contention, entry permits had no validity period under th e repealed Immigration and Deportation Act. The Entry permits are invalidated by the occurrence of events stipulated under the said repealed Act. . ' -RlS- The Appellant argued that at the time the contract in issue was executed the 1st Respondent was not eligib le and as such the contract did not qualify as a memorandum in writing as envisaged by the Court in the case of Wesley Mulungushi Vs. Catherine Bwale Mizi Chomba t22J. We were referred to the case of Mobil Oil (Zambia) Li mited Vs. Lotto Petroleum Distributors Limited f24J where the Court stated that a contract relating to land ought to be evidenced in writing. It was the Appellant's argument that the contract in issue was defective and incurable as the 1st Respondent's status cannot be cured retrospectively by stretching his purported current status. Our attention was drawn to a passage in the Halsbury's Laws of England 3 rd Edition, Volume 36 where the learned authors state that a Court will not enforce an illegal contract by way of specific performance. The Appellant contended that the fresh evidence sought has met the threshold as it is relevant and material. Further, that the evidence raises a point of law and illegality, being an abrogation of the statutory provisions on ownership of land. We have considered the motion raised by the Appellant to adduce further fresh evidence on appeal. We have also considered - R16- the a uthorities a nd submission advanced by the learned State Counsel and the respective Advocates. The Appellant seeks to adduce further /fresh evidence on appeal. It is contended that the further / fresh evidence sought to be adduced is relevant and material. It is evidence that could not have been discovered with due diligence and raises a point of law. The principle considerations upon which the appellate Court will grant leave to introduce or adduce fresh evidence on appeal are as follows; (i) Where by exercise of reasonable diligence such evidence could not have been discovered in time to be used at trial. (ii) Where it is reasonably clear that if the evidence had been available at trial, it would have had a material effect or an opposite result. (iii) The evidence proposed is reasonably credible. Fresh evidence is evidence that existed at the time of the trial but for other reasons could not be put before the Court or was previously undiscovered. Section 24( l)(b)(i) of the Court of Appeal Act provides that; -Rl 7- ''the Court may, on the hearing of an appeal in a civil matter where interest of justice Order the necessary or expedient in production of a document exhibit or other thing connected with the proceedings, the production of which may be necessary for the determination of the matter". the For further / fresh evidence to be adduced at the appellate stage pursuant to Section 24( l)(b)(i) of the Court of Appeal Act, there must b e specia l grounds which justify the introduction of evidence. To establish specia l grounds the Supreme Court in the decisions cite d by Counsel for the Applicant on a dducin g of fresh evidence on appeal, h ave stated that, the applicant must satisfy the three conditions. Tha t the evidence could not be obta ined with due diligence a t trial; that the evidence must b e such that it would have h a d a n impact on the result of the case a nd that th e evidence is cr edible . Whilst this court h as the d iscretion to a llow a party to adduce fresh evid en ce, th e principle of finis litium should n ot be lightly disregarded, After Judgment of a matter heard on m erits, ordinarily no furthe r eviden ce will be allowed to b e a dduced on appeal unless the condition s stated above h ave been m et. The ra tionale b eing that wh en a litigan t h as obtained Judgment in court, h e is . ' - R18- entitled by law not to be deprived of that judgment without very solid grounds. Hence the latin maxim "Interest Reipublicae ut finis litium" meaning it is in the interest of the public that litigation must come to an end. The issue is whether the applicant has shown that the evidence could not have been obtained with reasonable diligence; secondly, that the evidence would probably have had an important influence on the result of the case though it need not be decisive; thirdly, the evidence must be credible though not incontrovertible . We refer to the case of Ladd v Mar shall r2s1. In respect of reasonable diligence, it is not sufficient that reasonable diligence was exercised by the Legal Advisers, the party himself must have exercised reasonable diligence. It is trite that evidence not called at trial but sought to be adduced on appeal as fresh evidence is necessarily regarded with caution, as it may be coloured or prompted by a knowledge of what happened in the Court below. We refer to the notes appearing in Order 59/10/14 of the Rules of the Supreme Court 1999 Edition. We have perused the documentary evidence being sought to be adduced, attached to the affidavit in support of the motion. The -R19- further evidence which the Appellant 1s seeking to adduce comprises the following; (a) The 1st Respondent's National Registration Card number 310098/ 10/ 1 dated 23rd March, 2012. (b) The entry permit dated 25th March, 2003 held by the 1st Respondent permitting him to enter and re-enter into and remain within Zambia until the holder becomes a citizen by registration. The gist of the argument by the Appellant being that the 1st Respondent was not a permanent resident or established resident. A non-Zambian National can only legally own land if he is a permanent or established resident or has obtained consent of the President in writing. The Appellant submits that this new evidence could not have been discovered with due diligence as the sale had not reached the stage of securing State Consent to assign. The status of the 1st Respondent was concealed to the Appellant. This raises the issue of whether the contract of sale can be enforced b y way of an order of specific performance or otherwise. . ' -R20- The issue is whether the evidence that the 1st Respondent was non Zambian National, could not with due reasonable diligence have been discovered at trial and whether it would have h ad a material impact or effect on th e holding by the Court below. In respect of the first issue , we are of the view that the eviden ce that the 1st Respondent was holder of a mere Entry Permit at the time of the contract of sale dated 28th December , 2002 is evidence that could have been obtained or discovered with reasonable diligence on the part of the Applicant. The evidence was read ily available and by exercise of due reasonable diligence at trial it could have been obtained. The p a rties to th e contr act of sale were represented by the firm of Messrs Sharpe & Howard Legal Practitioners. As regards the second condition of m aterial impact on the decision by the Court below, the applicant h as raised a point of law a nd illegality. That the 1st respondent was not eligible to own land in Zambia therefore specific p erform ance is unen forceable . The 1st Respondent on the other h a nd argu e d in the first instance that the issue of non-eligibility to own land in Zambia was n ever raised in the Court below. We are of the view that the .. ' ' \ , .. -R21- issue raised is a point of law, which can be raised even if it had n ot been raised in the Court below. The 2 n d argument was that the Court below made a findin g of fact that there was a legally binding contract of sale entered into between the Appellant and 1st Respondent therefore, we cannot interfer e with the finding unless it was perverse or made u pon a misappreh ension of facts. We are of the view that at this stage, we are s imply d ealing with an application to addu ce fresh /further evidence and not dealing with the merits or substance of the m a in appeal. The argument at this stage is premature and is a point for determination on a ppeal of the matter. Thus we shall restrict ourselves to the conditions to be fulfilled or established by an applicant in order to be allowed to adduce fresh evidence on appeal. In reverting back to the second condition to b e satisfied, that the evidence must h ave material impact on the d ecision of the Court below; it is not in contention that the Court below h eld that ''the parties on 28th October, 2002 entered into a legally binding contract of sale". -R22- The Learned State Counsel's bone of contention is that b ecause the 1st Respondent was not a Zambian or Esta blished Resident at the time of the Contract of Sale he is not eligible to own land in Zambia and could not therefore h ave entered into an agreement/ contract of sale. We have considered the effect or impact of the fresh/further evidence sought to be adduced on the holding by the Court that the contract was legally entered into by the Appellant and 1st Respondent. The applicant seems to suggest that because the 1st Respondent was not a Zambian he could not even enter into a con tract to purchase land or property. It is trite that capacity to enter into a contract of sale of land must be distinguished with ownership of property by way of assignment and all n ecessary incidentals such as Presidential consent to assign. We are of the view that the fact that the 1st Respondent was not a Zambian as at date of contract of sale, did not prevent him from entering into a contract of sale to purchase a property. It is trite that a contract of sale does not per se transfer ownership of the land to the buyer. Much more is r equired, such as assignment, ' i' f) II -R23- necessary State Consent/ Presidential Consent and lodgment of assignment. In the case of Gideon Mundanda r231, the Supreme Court stated that; ''the application for permission t o subdivide and presidential consent are not matters which are usually expected to be subject of litigation uncertain or otherwise, and the need to obtain such consent is not in itself a ground for refusing to grant an Order of Specific Performance of contracts for sale of land ... should come to court with evidence that if the Order they seek is made in their favour, all necessary consent will be granted. " Further in the case of G. F Construction Limited Vs Rudnap Zambia Limited and Another r201, it was held that; "An absence of an Investor's licence does not render a Contract illegal, null and void but merely unenforceable and that it is an irregularity which is curable. " The issue of enforceability is a matter for the main appeal and will not be delved into. In conclusion, we a re of the view that the Appellant h as n ot satisfied the conditions that th e evidence they seek to introdu ce could not have been d iscovered with reasonable diligence and a dduced a t tria l. Secon d ly, th e sought evidence will n ot have had a materia l effect on the decision of the Court b elow. Simply stated, it -R24- is not evidence which will materially a lter the basis of the holding by the court in respect of the contract of sale. For the forgoing reasons, we accordingly dismiss the motion r a ised. The appeal shall be heard on the 6 th of November, 20 17 at 09:00 hours. Costs follow the event. C. F. R. Mchenga DEPUTY JUDGE PRESIDENT COURT OF APPEAL F. M. Chishimba M. M. Kondolo, SC COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE