Lusaka Premier Health Limited and Anor v Murray and Roberts Construction Limited (SCZ NO. 8/30/2023) [2023] ZMSC 23 (13 December 2023)

Rl BETWEEN: LUSAKA PREMIER HEALTH LIMITED FINSBURY INVESTMENTS LIMITED 1 ST APPLICANT 2ND APPLICANT And MURRAY AND ROBERTS CONSTRUCTION LIMITED KADDOURA CONSTRUCTION LIMITED 1 ST RESPONDENT 2ND RESPONDENT Coram: E. M. Hamaundu, JS For the Applicants: Mr M. Manda, Messrs Manda & Pasi Advocates For the Respondents: Mr C. Sianondo, Messrs Malambo & Co RULING Cases referred to: 1. Afritec Asset Management Company Limited and another v The Gynae and Antenatal Clinic Limited and another, Selected Judgment No. 3 of 2019 2. Manal Investments Limited v Lamise Investment Limited (2001) ZR 24 3. Bidvest Food Zambia Limited & Others v CAA Import & Export Limited, Appeal No.56/2017 Scanned with CamScanner 1.0 INTRODUCTION R2 1.1 The applicants, Lusaka Premier Health Clinic Limited and Finsbury Investments Limited, seek an order staying execution of a judgment by the High Court. 1.2 At present, the two applicants are before the Court of Appeal where they filed a notice of appeal against the High Court judgment. The applicants applied before the Court of Appeal for an order staying execution of the High Court judgement, pending determination of their appeal. The Court of Appeal rejected that application. The applicants have now come here by way of renewal of the application for stay of execution. 1.3 The real question to be considered in this applicati~n i~ whether the applicants are properly before this Court. In other words, given the new role that this Court has assumed ever since the Court of Appeal was created, can parties routinely come here to renew interlocutory applications, especially of matters which are still pending in the courts below. Scanned with CamScanner R3 2.0 The Arguments 2. 1 Mr Mando, learned counsel for the applicants submits that any application which is interlocutory in nature qualifies to be renewed before this Court. To support that submission, Mr Manda has extracted a passage from the judgment of this Court in the case of Afritec Asset Management Company Limited and CPD Properties Limited v The Gynae and Antenatal Clinic Limited and Kenneth Muukat 11. That passage reads: "An application for an interlocutory injunction coming to us or the Court of Appeal will not result in a final decision or decision on appeal because it is interlocutory in nature as it will pend the final determination of the matter in the High Court. Such application should thus be treated as such and be determinable by a single judge of this Court and the Court of Appeal by way of renewal of the application. However, where the decision is that on a final injunction, the position is different, it must come on appeal, as the decision by this Court or Court of Appeal on it will be a final decision or a decision on an appeal". Scanned with CamScanner R4 1 Mr Sianondo, counsel for the respondents, however argues 2. that, to start with, the case of Afritec Asset Management Company Limited and another v The Gynae and Antenatal Clinic Limited and another1 11 can be distinguished from this matter in that the appeal in that case was lodged in 2015, before the creation of the Court of Appeal. Counsel goes on to argue also that, as the law stands now, the applicants ought to come to this Court on appeal, and not by way of renewal. In support of that argument counsel has cited Section 13(1) of the Court of Appeal Act, No. 24 of 2016 which says: "An appeal from a judgment of the Court shall lie to the Supreme Court with leave of the Court". Counsel has also cited Section 2 of the same Act which defines the word ''judgment" to include a decree, a ruling, an order, a conviction, a sentence and a decision. 3.0 The Decision 3.1 The applicants rely heavily on the words in the passage that has been cited by their counsel from the judgment in the case of Afritec Asset Management Company Limited Scanned with CamScanner RS and Another v The Gynae and Antenatal Clinic Limited and Another 11 which appear to suggest that all interlocutory applications can routinely come to this court by renewal. I will therefore explain what that case was about and, by so doing, perhaps bring out the context in which the passage that has been quoted was made. 3.2 The Afritec Asset Management case came to court before 2016; that is, before the Court of Appeal was created as an intermediate court between the High Court and this Court. At that time, appeals from the High Court came to this Court without first passing through another court. Parties who were dissatisfied with interlocutory decisions brought those interlocutory applications to this Court by way of renewal; except in the case of decisions on applications for interlocutory injunctions which came by way of appeal. The procedure regarding interlocutory injunctions was supported by this Court's decision in the case of Manal Investments Limited v Lamise Investment Limitedl21. Therefore, in the Afritec Asset Management case, this Court was lamenting the prolonged length of time it took Scanned with CamScanner R6 for interlocutory injunctions to be resolved as a result of the adoption of that procedure. In so doing, this Court also reviewed its decision in the Manal Investments case. 3.3 Now, the creation of the Court of Appeal in 2016 certainly brought about changes in our system, one of which was that, as a general rule, parties who were aggrieved by decisions of the High Court, whether final or interlocutory, were now required to go to the Court of Appeal as an appellate court of first instance. It follows that all those interlocutory applications in the High Court which used to come to this Court by way of renewal were now required to go to the Court of Appeal in that fashion. 3.4 At the same time, the statute governing the Court of Appeal, that is the Court of Appeal Act No. 24 of 2016, restricted access to the Supreme Court, so that one could only come to this Court upon obtaining leave, after satisfying certain conditions. There are, however, certain provisions of the law which still state that appeals in certain matters in the High Court lie directly to the Supreme. Court as an appellate court of first instance. An Scanned with CamScann1er I R7 example of such matters are those proceedings brought in the High Court under Part III of the Constitution of Zambia. In such cases, the position that prevailed prior to the creation of the Court of Appeal still subsists. Hence, in matters such as those under Part III of the Constitution, this Court may well entertain an interlocutory application from the High Court by way of renewal. 3. S So, where the passage which I have quoted earlier refers to the Supreme Court, it should be understood to refer to those matters whose appeals still lie directly to this Court from the High Court. But when it comes to those matters whose appeal lies first to the Court of Appeal, I am inclined to agree with Mr Sianondo that the Court of Appeal Act has pretty much determined how decisions in such matters, whether interlocutory or final, should come to this Court. 3.6 I have already quoted the provisions of Section 2 and 13(1) of the Court of Appeal. Section 13(3) goes on to set out the conditions which must be satisfied before leave to appeal from the Court of Appeal to this Court will be Scanned wit h CamScanner RS granted. The reason for restricting leave to appeal to the limited circumstances set out in Section 13 was explained by this Court in the following passage from the judgment in the case of Bidvest Food Zambia Limited & Others v CAA Import & Export Limited131: "When considered in context, therefore, the creation of the Court of Appeal by the Constitution of Zambia (Amendment) Act No.2 of 2016 was not intended merely to add another layer in the structure of the courts or the appellate process. Rather, the Constitution elevated the Supreme Court to a level above an ordinary appellate court. Its original role of hearing appeals from the High Court and other quasi-judicial bodies having effectively been assumed by the newly created Court of Appeal, means that its role in the appellate structure has necessarily changed. In our view, even without the benefit of learning from the experience of other jurisdictions with court structures such as our country has now adopted following the enactment of the amended constitution, it would not have been the intention of the framers of the amended Constitution that the Court of Appeal and the Supreme Court should be performing the same or even similar functions. Our view is that the role of the Supreme Court is now informed by the restriction of appeals it will hear in the manner and for the reasons that courts at the equivalent level in jurisdiction such as the United Kingdom do. These Scanned with CamScanner R9 restrictions were eloquently articulated by Lord Bingham in the case of R u Secretary of State for Trade and Industry, exp. Eastway as we have quoted him earlier, as well as in the passage of Zuckerman on Civil Procedure which we have also freely quoted earlier on. It is in that spirit that Section 13 of the Court of Appeal Act, restricting access to the Supreme Court by deferring to the apex court only weighty issues in the most deserving of cases, should be understood". 3 • 7 So, when one considers the definition of a judgment in section 2 of the Court of Appeal Act, the requirement for leave to appeal as well as the restrictions attached thereto by Section 13 of the said Act and, now, the above passage in the Bidvest case what becomes clear is this : (i) that a decision of the Court of Appeal, be it final or interlocutory, can only be brought to the Supreme Court by way of appeal. (ii) that such decision, even if it is interlocutory, can only be appealed against when leave to do so has been granted; and (iii) that, even if the decision is interlocutory, the same restrictions, or conditions, for granting Scanned with CamScanner R 10 leave to appeal apply; so that, the only interlocutory application which is likely to come to this Court is one which is so weighty as to deserve being heard by the Supreme Court. 3 .8 In this case, this is an interlocutory application which is in the Court of Appeal, and the applicants are unhappy with the decision of that Court on the application. Hence~ the correct way for them to come to the Supreme Court is by way of appeal: and they need to obtain leave to do that. I therefore, agree with Mr Sianondo that because it is a renewal, this application is incompetent. 3. g In the circumstances I dismiss the application. The interim order of stay of execution which I granted the applicants on 27th October, 2023 is hereby discharged. I award costs to the res~ndents. Dated the .... . /. .. 5. ... day of .. ... o.~<F.-,?. Y':l~.~ ........ 2023 E . M .~ SUPREME COURT JUDGE Scanned with CamScanner