PME Power Solutions (India) Limited v ZESCO Limited (App No. 34 of 2022; CAZ/08/476/2021) [2023] ZMCA 371 (14 February 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) App No. 34 of 2022 CAZ/08/476/2021 In the matter of: Section 17 (2) (a) (iii) and (b) (ii) of the Arbitration Act No. 19 of 2000 And in the matter of: Rule 23 of the Arbitration (Court Proceedings) Rules, 2001, Statutory Instrument NO. 75 OF 2001 And in the matter of: ,,,,,-· ?c.'~ OF l,;i An Application to Set Aside the Arbitral Award of Suzanne Rattray (FCIArb), Dickson Jere (MCIArb) and (C. Arb FCIArb) ublished on 9 th December 2020 in rbitration Proceedings between ___ J- ,,ME Power Solutions (India) Limited • ~ ;81--i Charles Kajimanga · - .,,,., __ .,,,---z~,- :1 f; r-·- ' • i .• ;, 1 4 FEB 20?37 \. ,~-: --:.-··· ~:.:-,- "-.·· -~~ . ~-~~ '-,~ 1RY ' / ~nd ZESCO Limited BETWEEN: PME POWER SOLUTIONS (INDIA) LIMITED Applicant AND ZESCO LIMITED Respondent CORAM: Chishimba, Sichinga and Sharpe-Phiri, JJA on 3 rd February 2023 and 14th February 2023 For the Applicant: Mr. D. Mushenya of Wright Chambers For the Respondent: Mr. A. Musukwa of Andrew Musukwa & Co RULING SHARPE-PHIRI, JA, delivered the Ruling of the Court Rl Legislation referred to: 1. The Court of Appeal Act No. 7 of 2016 2. The Court of Appeal Rules, SI No. 65 of 2016. 3. The Rules of the Supreme Court, 1999 Edition, White Book 4. The Arbitration Act No. 19 of 2000 Authorities referred to: 1. Zambia Telecommunications Company Limited v Muyawa Liyuwa SCZ Judgment number 16 of 2002 1.0 INTRODUCTION 1.1 This is a Ruling on the Applicant's Notice of Motion brought before the Court of Appeal on 8 th August 2022 pursuant to Section 9 (b) of the Court of Appeal Act and Order 10 Rule 2 (8), Order 13 3 (1) and (3) and Order 10 Rule 5 of the Court of Appeal Rules. 1.2 By this motion, the Applicant seeks an Order for leave to appeal to the Court of Appeal out of time against the judgment of Mwenda-Zimba, J of the High Court made on 5 th August 2021 and for an Order for stay of execution of the judgment pending appeal. 2.0 BACKGROUND 2.1 The brief background of this matter is that the parties entered into a contract for the connection of Luangwa District to the National Power Grid. R2 2.2 By that agreement, the Applicant was to design, manufacture, test, deliver, install, and commission facilities to enable the connection. 2.3 A dispute arose out of the contract and the matter went to adjudication. A decision was rendered by an adjudicator on 18 April 201 7. Being dissatisfied with this decision, the Respondent commenced arbitration proceedings, which were concluded by an Award rendered on 9 December 2020. 2.4 Being dissatisfied with the Award, the Respondent brought an action in the High Court to set aside the Award pursuant to Section 17 (2) of the Arbitration Act No. 19 of 2000. Having considered the matter, the learned Judge in the Court below found in her judgment of 5 August 2021, that the Applicant had failed to prove its claim and that there was no basis for setting aside the Award by the Arbitral Tribunal. The Court dismissed the action with costs. 2.5 The Applicant subsequently filed an application on 6 September 2021 for leave to appeal pursuant to Section 22, 23 (l)(e) and 25 of the Court of Appeal Act and Order 10 Rule 4 (3) and (4) of the Court of Appeal Rules. By the said application, the Applicant also sought an Order for a stay of execution pending the determination thereof made pursuant to Order 37 Rule 10 of the High Court Rules. R3 2.6 After considering the application, the learned Judge denied the request for leave to appeal on 9 September 2021 on the basis that the High Court Rules prohibited entertainment of leave to appeal after 30 days of judgment. She endorsed her refusal on the summons. 2. 7 Being dissatisfied with this decision, the Applicant brought an application for leave to appeal and for an Order for stay of execution before a single Judge of this Court on 9 December 2021. The Respondent's counsel opposed the application arguing that the application was not brought within the fourteen days of the decision complained of. The single Judge of this Court considered the question of whether the application had been made in breach of Order X Rule 1 and 2 (1) of the Court of Appeal Rules, which require that an application for leave to appeal shall be made within fourteen days from the date of the decision complained of. 2.8 The single Judge began by addressing the question of when the decision of the lower Court complained of was made. She found that the lower Court had refused to grant leave to appeal on 9 September 2021 by inscribing on the summons. The single Judge also found that the order of the lower Court took effect on 9 September 2021 when the learned Judge originally refused to grant leave to appeal. She held that the fourteen days started running from that date that the trial Judge refused to grant the leave to appeal, and it mattered not that the trial Judge had signed the formal order R4 embodying the decision without dating the Order or that the Applicant had lodged another application for interpretation of the Court's Order. 2.9 Having only brought the application for leave to appeal before the Court on 9 December 2021, about 3 months after the Order was made by the lower Court, the single Judge found that the Applicant was out of time and in breach of Order X Rule 2 (1) of the Court of Appeal Rules. The Judge dismissed the application with costs on 20 May 2022. 2.10 The Applicant subsequently brought a new application before the single Judge of this Court on 2 June 2021 seeking leave to appeal out of time to the Court of Appeal on 2 June 2021 (notice is shown at page 76 of the Record). 3.0 APPLICATION BEFORE A SINGLE JUDGE 3 . 1 The Applicant then sought leave to appeal to the Court of Appeal out of time pursuant to Order 13 Rule 3 (1) and (3) and (4) (b) of the Court of Appeal Rules, 2016. 3 .2 The reasons for being out of time and grounds for extension were set out in the Notice (at pages 76-78 of Record) as follows: i) That immediately upon the receipt of a handwritten Order on the face of the Summons by the lower Court RS denying the Applicant leave to appeal dated 9 September 2021, which was handed to the Applicant's Advocates on 16 September 2021, the Applicant attempted to file a formal Order to that effect for the Court to sign and date but failed to do so as the Court Registry Clerk refused to accept the said document on the ground that they could not locate the file. ii) That the Applicant continued going to Court to file the said formal Order for the next 5 days but to no avail until 22 September 2021 when the file was finally found and the Applicant managed to get the formal Order, which was signed ai:id not dated. iii) That the formal Order was eventually signed on 29 November 2021. The Applicant proceeded to file an application for leave to appeal on 9 December 2021, a period of 10 days after uplifting the signed Order from the Court. 3.3 After considering this application for leave to appeal, the single Judge of the Court of Appeal, in her Ruling of 20 May 2022, dismissed the application on the ground that she had no jurisdiction to hear the application as it was not filed within the 14 days from the date of the lower Court's decision complained of. R6 3.4 According to the Judge, the period started to run from 9 September 2022 when the lower Court signed the handwritten Order of 9 September 2022. 3.5 Counsel contended that it had not filed the application for leave to appeal as he was of the view that a formal order of the Court needed to be drawn up in accordance with Order 42 Rule 4(1) of the Rules of the Supreme Court, 1965 (White Book) 1999 Edition. 3.6 Counsel also stated that he could not comprehend how a Court Order could have two dates and therefore waited to know the actual date that would be endorsed on the order. He eventually proceeded to file an application before the single Judge of this Court, and by the time she rendered her ruling on that application, he was out of time to file an application. Being aggrieved by this decision of 25 July 2022, the Applicant has brought this Motion before the full Court. 4.0 NOTICE OF MOTION BEFORE THIS COURT 4.1 The Motion has been brought on similar grounds that were before the single Judge and referred to earlier at paragraph 3.2 above. We will not reproduce those grounds hereunder. 4.2 The Motion was supported by an affidavit sworn by one Jonathan Andy Wright an Advocate of the Superior Courts of R7 Zambia practicing under the firm of Wright Chambers, having conduct of the matter on behalf of the Applicant. 4.3 The deponent stated that the lower Court delivered judgment on 5 th August 2021 on an application brought before the High Court to set aside an Arbitral Award published by Suzanne Rattray, Dickson Jere and Justice Charles Kajimanga on 9 th December 2020. 4.4 Being dissatisfied with the judgment, the Applicant brought an application to the High Court on 6 th September 2021 for leave to appeal to the Court of Appeal and for a stay of execution, which was denied by the Court on 9 September 2021 by way on a handwritten Order, which was only handed over to them on 16 September 2021. The endorsement of the Court's denial was on the basis that leave to appeal after 30 days of judgment was prohibited. 4.5 Counsel contended that the thirtieth day after d elivery of the High Courtjudgment fell on Saturday, 4 September 2021 and according to his understanding, where the time for doing any act fell on a Saturday, Sunday or Public Holiday, the act or proceeding shall be considered as taken on the next day afterwards. Therefore , in this case where the fourth September 2021 fell on a Saturday, the Applicant was 1n order to file its application on 6 September 2021. RB 4.6 Counsel further contended that immediately after the handwritten order denying leave to appeal was made available to them on 16 September 2021, they attempted to file a formal order into the High Court, but the Registry Clerk refused to accept their documents as the file could not be located. Despite their efforts, they were only successful on 22 September 2021, as the Judge signed the order but did not date it. Counsel contended that the formal order denying leave to appeal was eventually only signed and dated on 29 November 2021. 4.7 Counsel deposed that he filed the Applicant's application for leave to appeal to the Court of Appeal on 9 December 2021, a period of 10 days from the date the formal order was signed by the lower Court albeit undated. 4.8 The single Judge of this Court rendered a ruling on 20 May 2022 refusing to grant leave to appeal to the Court of Appeal on the basis that she had no jurisdiction to hear the application as it was not filed within 14 days from the date of the High Court order complained of. The Applicant's counsel confirmed it had accepted this decision. 4. 9 Following this, the Applicant brought another application before the single Judge of the Court of Appeal on 2 June 2022 for leave to appeal out of time and for an Order for stay of execution. Before the application could be heard, the Respondent raised a preliminary issue seeking to set aside R9 the Applicant's application to the single Judge arguing that the request for leave to appeal out of time was irregular. 4 .10 Counsel argued that the Applicant's counsel adopted a wrong procedure as he ought to have renewed its earlier application for leave to appeal before the full Court rather than bringing another application for leave to appeal out of time before the single Judge of this Court. The Applicant argued that the single Judge had jurisdiction to grant an order for leave to appeal out of time and a stay of execution pending appeal. The Applicant urged the Judge to dismiss the Respondent's preliminary objection. In determining the Respondent's application, the learned single Judge rendered a Ruling of 25 July 2022, upholding the Respondent's preliminary issue and dismissed the Applicant's application for leave to appeal out of time. 4.11 Being aggrieved with the said Ruling of the single Judge, the Applicant brings the Motion before us seeking to have the same discharged or reversed by this Court. 4.12 On the issue of leave to appeal, counsel contended that the Applicant's proposed appeal has merit and good prospects of success as shown in the grounds of appeal contained in the draft Notice and Memorandum of Appeal. Counsel highlighted various aspects in which he believed the lower Court erred in its judgment of 5 August 2021 and insisted that there are compelling reasons for the appeal to be heard . RlO He also urged this Court to grant leave to appeal and an Order to stay execution of the said judgment. 5 .0 HEARING OF THE MOTION The Motion was heard before us on 3 February 2023. Both parties were represented. The Applicant's counsel relied on the Notice of Motion of 8 August 2022 and supporting arguments contained therein. The Respondent's counsel made an application to file its opposing documentation after the hearing. We allowed the application and directed the Respondent to file its documents on 3 February 2023 and the Applicant's counsel to file their documents within 5 days from the date thereof. We agreed to dispense with the attendance of the parties for another hearing and ordered that we would render our decision on the Motion based on the documentation, which we now do. 6 .0 ARGUMENTS IN SUPPORT 6.1 The Applicant's submissions are shown at page 91-112 of the Motion. The arguments will not be reproduced here but have been considered. 7.0 OPPOSITION TO THE MOTION 7 .1 The Respondent filed an affidavit in opposition to the Notice of Motion, List of Authorities and Skeleton Arguments on 3 Rll February 2023. The affidavit was sworn by Mpwani Samuel Musukwa, an advocate of the Superior Courts of Zambia practicing in the firm of Andrew Musukwa and Company, the law firm having conduct of the matter on behalf of the Respondent. 7.2 In the said affidavit, counsel for the Respondent insisted that the Order of the lower Court is binding and enforceable from the date that it is made by the Court and not when it is embodied or formalized. That the Order of the lower Court was effective on 9 September 2022. Counsel also contended that the Applicant had had sufficient time to bring an application to this Court from the date that it received the Order of the lower Court on 16 September 2022. 7 .3 Counsel also stated that the application for leave to appeal out of time ought to have first been granted or refused by the High Court before renewed to the Court of Appeal. 7.4 Counsel argued that the application brought to the High Court was for leave to appeal and not for leave to appeal out of time. That therefore this Court had no jurisdiction to entertain the application for leave to appeal out of time in the absence of such application having been made before the High Court. R1 2 7 .5 Lastly, it was contended that it was the fault of the Applicant that it was out of time to file an appeal as it had belaboured preparing other applications instead of renewing the applications for leave to appeal before this Court. 7.6 The Respondent also relied on Skeleton arguments of 3 February 2023, which we have duly considered. 8.0 ARGUMENTS IN REPLY 8.1 The Applicant filed their arguments in reply on 8 February 2023, which we have duly considered. 9. DECISION OF THIS COURT 9.1 We have carefully considered the evidence and the arguments of Counsel for the parties in this matter. 9.2 The Applicant seeks the discharge the decision of a single Judge of 25 July 2022 in which she refused an application for leave to appeal out of time on the basis that the Court had already declined to grant an application for leave to appeal and for a stay of execution. 9.3 The Judge highlighted that she had in her Ruling of 20 May 2022 declined to grant the Applicant's application for leave to appeal to this Court and for a stay of execution. R13 9.4 Nonetheless, the Applicant had brought another application for leave to the Court of Appeal out of time. Counsel for the Applicant confirmed that the Applicant was not aggrieved by the decision of the Court of 20 May 2022 but by the subsequent Ruling of the single Judge of this Court of25 July 2022. 9.5 Being aggrieved by that Ruling, the Applicant brought this Motion before us seeking to have the said Ruling discharged or reversed by this Court. The Motion has been brought pursuant to Section 9 (b) of the Court of Appeal Act which em powers the Court to vary, discharge or reverse a decision of a single Judge of the Court if it deems fit. 9.6 The issue for determination of this Court is whether this Court should reverse or discharge the decision of the single Judge of this Court of 25 July 2022, in which the Judge declined to entertain an application for leave to appeal out of time on the basis, firstly that the Court had already entertained an application for leave to appeal which the Applicant had not been renewed before the full Court and secondly that the application for leave to appeal out of time had not been brought before the lower Court. In the view of the single Judge of this Court, an application for leave to appeal out of time ought to have been made before the High Court in the first instance. R14 . ! 9.7 It is trite that prior to an application being brought before the Court of Appeal, the request must first originate in the High Court which is the Court of first instance. An application can only be renewed before a Judge of the Court of Appeal if it has in the first instance been denied by a Judge of the lower Court. 9.8 The primary function of the Court of Appeal is to consider decisions of the lower Court and adjust where the Court deems appropriate. In the present case, the application for leave to appeal out of time filed on 2 June 2021 was brought directly to a single Judge of the Court of Appeal. There was no earlier application for leave to appeal out of time brought before the Judge of the lower Court. This is contrary to the intention of the establishment of the Court of Appeal to hear and determine matters from the High Court and quasi judicial bodies. 9.9 Therefore, we agree with the single Judge of this Court that the application for leave to appeal out of time is irregular, not having been made in the first instance in the Court below. 9 .10 The second part of the Motion relates to a stay of execution of the judgment made pursuant to the provisions Order X Rule 5 of the Court of Appeal Rules. A close review of the Motion before the single Judge filed on 2 June 2022 reveals that there was no application made for a stay of execution. R15 • t 9 .11 An application for a stay of execution cannot be brought to a full Court of Appeal without having first originated in the High Court and then before a single Judge of the Court. Therefore, the renewed application requesting for a stay of execution before a full Court is improper. 10.0 CONCLUSION 10.1 In the view we have taken, we find that this Motion has no merit, and we dismiss it accordingly with costs to the Respondent. 10.2 The costs are to be agreed between the parties and in default of agreement to be taxed. F . M. Chishimba COURT OF APPEAL JUDGE ~ arpe-Ph1:;= COURT OF APPEAL JUDGE R16