The Attorney General and Anor v Metro Investments Limited and Ors (APPEAL NO. 9/2021; SCZ/8/01/2021) [2025] ZMSC 15 (25 July 2025)

IN THE SUP ME COURT OF ZAMBIA HOLDEN AT USAKA APPEAL NO. 9/2021 SCZ/8/01/2021 BETWEEN: THE ATTO EY GENERAL COMMISSIO ER OF LANDS AND METRO IN CETINA T LUSAKA CIT COUNCIL STMENTS LIMIT SPORT LIMITED COFZA1 coURTO/ JUUICIARY ---~•. S ,· 2G25 . {., 5 .. , .. . .. --~ - ·coul{l'R O>< sot)6~ --~..;..- SPONDENT ND RESPONDENT 3RD RESPONDENT Coram: sonda, DCJ, and Wood and Mutuna, JJS 2 nd November, 2021 and 25th July, 2025 2nd Appellant: Mr . C. Mulonda , Principal State Advoca te, Attorney General's Chambers Mr. C. M. Sianon do, Malambo & Co. Mr. S. Sikota SC, Central Chambers For the 3 rd R spondent: N/A JUDGMENT MUSONDA, CJ, delivered the judgment of the Court A variety of actors conspired to delay this judgment. This we deeply rofusely apologise. The delay was caught up by the depletion o the original Panel following the retirement of Wood, JS cing the status of this judgment to a majority one. Cases Referr d to: 1. B idv~st Foods & Others -v- CAA Import and Export Limited: No. 6 o/ 201 7 SCZAppeal i ---· 2. 3. 4. 5. 6. 7. 8. 9. 10. rruption Commission -v- Serioes Farms Limited: SCZ Appeal No, Salam n -v- Salomon: [1897] AC. 22 Anti- 155/ 009. Justin Chansa -v- Lusaka City Council: SCZ Judgment No. 29 of 2007 Boxtel -v- Kearney: {1987] Z. R. 63 Zambi Consolidated Copper Mines PLC -v- Richard Kangwa and Other : [2000] ZR 109 Raila Odinga & 2 Others vs. Independent Electoral & Boundaries Com Re 56 Denton Road, Twikenham, Middlesex (1953) 1 Ch 51 Living tone v Westminster Co. (1904) KB 109 Robe son v Minister of Pensions (1949) 1 QB 227 ission & 3 Others (2013) EKLR Le islation re erred to: 1. Court o Appeal Act No. 7 Of 2016 1.0 1.1 This ap eal has its genesis in a somewhat protracted dispute over a ommercial Stand known as Stand No. 22756, located along saka's Lumumba road ("the Commercial Stand" or 1.2 It is w rth pointing out, upfront, that the Commercial Stand was, at various times, the subject of litigation or adjudication in the L ds Tribunal, the High Court and this Court at one time or othe . 1.3 Notwit standing the long adjudication history of disputes aroun the Commercial Stand, the matrix of facts and issues aroun which the present appeal revolves is a narrow one indeed J2 2. 1 The Co mercial Stand had previously been secured and owned rs Lusaka Water and Sewerage Co. Limited (since Lusaka Water and Sanitation Co. Ltd), a private Limited Company based in Lusaka. However, on account of sustain d encroachments which had rendered the Commercial Stand u suitable for the purpose for which Lusaka Water and n Co. Limited had secured it, the Company (i.e. , ater and Sanitation Company Limited) decided to its interest in it. 2 .2 In the eantime, the 2 nd Respondent, also a private Limited , owned a Commercial Stand adjacent to the Stand. As we omentarily noted above, unbeknown to the 2 nd ent, Lusaka Water and Sanitation Company Limited had ab doned its interest in the Commercial Stand. 2.3 In its uest to expand its business operations, the 2 nd ent decided to approach Lusaka Water and Sanitation Co. Li ited for the purpose of establishing the precise circums ances of the Commercial Stand. Upon learning that it, that is, usaka Water and Sanitation Co. Limited, had given up its inter st in the Commercial Stand, the 2 nd Respondent set J3 about t secure the Commercial Stand for its expanding 2 .4 After a eries of developments affecting the Commercial Stand, its rather surreptitious allocation to Mubila Estates Limited, a private limited company in which a prominent Cabinet Minister had a significant stake by the 2nd Appellant, the 2 nd Respondent sought to assert its interest in the Comme cial Stand by approaching the Lands Tribunal for appropr ate relief. 3.0 DISPUT ENTERS THE LANDS TRIBUNAL 3 .1 Followi g the entry of the dispute in the Lands Tribunal, the same w s duly considered by that quasi-judicial forum. 3.2 In the j dgment which ensued, the Lands Tribunal established that the allocation of the Commercial Stand to Mubila Estates Limited had been irregularly managed. In consequence, the Tribun determined and directed that the Commercial Stand should be advertised and offered to a deserving applicant, taking i to consideration all relevant factors. 3.3 The 2 nd Respondent was not happy with that determination by the L ds Tribunal and, consequently, appealed against the same to this Court. J4 4.0 DISPUT ENTERS SUPREME COURT (FIRST TIME) 4.1 e dispute was before us, a jurisdictional challenge around the competence of the Lands Tribunal to have entertai ed the same was successfully mounted on account of the fact that the Commercial Stand had been the subject of a certifica e of title. As the law stood at the time, the Lands was not competent to pronounce any relief in relation atters before it if such relief affected titled land. 4.2 egard to the matters in 4 .1 above, this Court reasoned proper forum to make determinations upon all the issues hich had been raised in the Lands Tribunal was the High Co rt of Zambia. Accordingly, we allowed the appeal and the matter to the High Court for the purpose of having rt make appropriate determinations upon the issues d been purportedly raised in the Lands Tribunal. 4 .3 Fallo g our judgment as adverted to above, the 2 nd Appellant , administratively, to cancel the certificate of title in respec of the Commercial Stand which had been issued in favour of the 1s t Respondent. Thereafter, the 3 rd Respondent procee ed to place an advertisement in the "Times of Zamb a" inviting "interested individuals or organisations JS of developing Stand No. 22756, Lumumba Road, " to apply. In this regard, interested parties were invited to obtain Application Forms from the 3 rd Respondent's offices or the purpose we momentarily adverted to. 4.4 It is w rthy of note that the 1st and 2 nd Respondents were separa ely written to and specifically invited to attend the intervi ws for the Stand in question. In their reaction to the n, the 1st Respondent's advocates informed the 2 nd Appell t that, on account of having travelled overseas, the Manag ng Director of the 1st Respondent could not be available to atte d the interviews on the date which the 3 rd Respondent had a pointed. For completeness, the 1st Respondent's Advoc te was also not going to be available on the date that had be n appointed for the interviews in question on account of a pr or Court engagement. 4.5 regard to the issue adverted to in 4.4 above, the 1s t dent's advocates sought to have the 3 rd Respondent put off the interviews alluded to in the preceding paragraph until after t e return of the 1st Respondent's Managing Director from J6 4.6 Respondent could not, however, accede to the 1st ent's request and decided against postponing the intervi s alluded to in 4.4 above. ent informed the 1st Respondent's advocates about the intervi s having proceeded on the date which had been ong1n appointed for the purpose. Those interviews ted in having the Commercial Stand offered to the 2 nd 5.0 DISPU E PERSISTS, ENTERS HIGH COURT who, i consequence, decided to launch an action in the High Court eeking the following substantive relief: 5.1.1 "(a) an order that the allocation of the property in dispute by the Commissioner of Lands (2nd Appellant) to the [2nd Respondent] be declared null and void and that the [1 st Respondent] is entitled to be offered the same property 5.1.2 (b) An order that the 2 nd Appellant should invite [the 1st Respondent] for interviews on the proposed investment on the property and the development already existing on the property". J7 6 .0 DECISI N OF THE HIGH COURT 6 . 1 the hearing of the matter, the dealing High Court Judge ( usona, J) declined to grant the relief which the 1st ent had sought essentially reasoning that the fact of the 1st espondent's Managing Director having been away had not tot ly incapacitated the 1st Respondent given that it was a Limited ompany that enjoyed separate legal existence from its shareho ders and directors and that the 1st Respondent could have no inated another representative to attend the interviews 7 .0 1ST SPONDENT APPEALS TO COURT OF APPEAL 7 .1 The 1st Respondent was not satisfied with the outcome before Muson , J and decided to escalate matters to the Court of Appeal 7 .2 of Appeal readily accepted the 1st Respondent's and totally discounted the reasoning of Musona, J as the legal distinctness of the 1st Respondent from its share alders and directors. The Court of Appeal further d that: "You cannot force a party to send alternative people when they knew and understood on their part who was best suited to attend to the matter''. JS 7 .3 The Co rt of Appeal questioned the 3 r d Respondent's wisdom ing to accommodate the 1st Respondent's request to postpo e the interviews earlier referred to in this judgment. 7.4 g to the Court Appeal, "[T]he failure to afford the [1 st Respondent] an interview was improper and irregular and gave the 2 nd Respondent an undue and unfair advantage .... " 7.5 g to the further reasoning of the Court of Appeal, , J had misapprehended facts and made findings which ere perverse. 7.6 The C urt of Appeal accordingly allowed the appeal and that fresh interviews for the purpose of determining which ntity the Commercial Stand should be offered to be arrang d by the 2 nd Appellant and that only the 1st and the 2 nd Respo dents should be interviewed for the Stand by a different Panel. 8.0 APPEA TO THIS COURT Court f Appeal and have now appealed to this Court on 3 s which have been couched in the following terms: 8.1.1 The Court below erred both in law and fact when it held that the failure to afford the 1 st Respondent an interview J9 as improper and irregular and gave the 2 nd Respondent n undue and unfair advant.age. 8.1.2 he Court below erred in both law and fact when it Ordered] that the 1st Respondent and the 2 nd Respondent nd not anyone else be interviewed by a different panel on date to be agreed by the parties through their respective 8.1.3 he Court below erred in both law and fact when it held hat the 2 nd Appellant should bear the costs both in the ourt of Appeal of Zambia and the High Court for Zambia n account of having been the architect of the confusion in 9 .0 PARTIE 'RESPECTIVE ARGUMENTS ON APPEAL TO THIS COURT 9.0. 1 hile the Appellants and the 1st Respondent filed their respective Heads of Argument supporting/ opposing the appeal, no like Arguments appear to have been filed on behalf of the 2 nd and 3 rd Respondents. At any rate, none of the latter parties' Arguments are on the Record of Appeal. 9.0.2 Before we take a dive into laying bare the Arguments which the two sides to the debate which this appeal necessarily involves, we feel constrained to address, at once, a pertinent issue which the learned Counsel for the 1st Respondent fronted as he set about to project JlO and canvas the Arguments which, he opined, lent oxygen to the position which the 1st Respondent has adopted in this appeal. 9.0.3 To be clear, before the first Respondent's Counsel could take a dive into his Arguments, he called our attention to and fronted the contention that the admission of this appeal into this Court was buoyed by the two grounds which the single member of this Court who had entertained the application for leave had highlighted, namely, grounds one and two. This, according to Counsel, was evident from the Ruling of the single judge at Pages 14 to 28 of the Record of Appeal, specifically at Page 27. 9.0.4 We pause here to observe that we are in agreement with learned Counsel for the 1st Respondent that this appeal ought to have been confined to the two grounds namely, grounds one and two, which had blessed it with the necessary oxygen to be admitted into this Court. Indeed, if any authority be required for the above position one need not look farther than our oft- Jll .. quoted decision in Bidvest Foods & Others -v- CAA Import and Export Limited1 where we observed that: "Where leave to appeal is granted on the basis that the appeal raises a point of law of public importance under Section 13(3) (a) of the Court of Appeal Act No 7 of 2016 only a ground of appeal raising such point (of law) will be covered by such leave. Any other proposed ground of appeal which does not satisfy this threshold will not be eligible for consideration on appeal ... " 9.0.5 Clearly, in launching their appeal in this Court the Appellants should have observed the boundaries which Bidvest1 delineated in relation to the admission of an appeal into this Court if such admission is predicated on grounds which are specified in a Ruling granting permission to approach this Court of last resort. 9.0.6 In his Ruling granting permission to the Appellants to appeal to this Court, one of our number noted that only grounds one and two raised matters of public importance worthy of interrogation by this Court. 9.0.7 Having regard to our reflections in the last two paragraphs, we conclude that the issue of costs as pronounced upon by the Court of Appeal did not J12 receive the necessary oxygen for the purpose of the appeal's admission into and interrogation by this Court. 10. 1 APPEL NTS' ARGUMENTS SUPPORTING THE APPEAL 10 . 1. 1 As we intimated momentarily, the Appellants filed their composite Heads of Argument in support of the three grounds of Appeal on which their appeal is founded. 10. 1.2 The Appellants' Arguments relative to each of their three grounds of Appeal were preceded by a background narrative in which the Appellants pointed out that both the 1st and 2 nd Respondents had, historically, been interested in the Commercial Stand. 10.1.3 Counsel for the Appellants further argued that, although the 1st and 2 nd Respondents had applied for the Commercial Stand and were duly invited to attend the interviews, only the 2 n d Respondent's r epresentative attended on the date which the 2 n d Appellant had nominated. 10.1.4 According to Counsel, the 1st Respondent had, unsuccessfully, sought to have the date of the interviews postponed 1n order to give the 1st J13 Respondent's Managing Director and Shareholder an opportunity to personally attend the interviews. 10.1.5 Turning specifically to the first ground of appeal, Counsel for the Appellants contended that the Court below erred in both law and fact when it held that the refusal, by the 2 nd Appellant, to give the 1st Respondent an opportunity to have its own interview was improper and irregular and that the refusal had the effect of giving the 2 nd Respondent an undue and unfair advantage vis-a-vis the acquisition of the Commercial Stand. 10.1.6 The Appellants further contended under their first ground of appeal that the Court of Appeal's holding that the 2 nd Appellant's refusal to extend to the 1st Respondent an opportunity to have its Managing Director separately interviewed after missing the original interviews did not give the 2 nd Respondent any undue and unfair advantage given that both the 1st and the 2 nd Respondents were invited to participate in the original interview. J14 10. 1. 7 According to the Appellants' Counsel, it was the aforementioned invitation to the duo which was to culminate in the successful interviewee being allocated the Commercial Stand. 10.1.8 The Appellants' Counsel further contended that the 1st Respondent's failure to attend the interviews 1n question could not be blamed on the 2 nd Appellant. 10.1.9 The Appellants' Counsel also submitted that, being a body Corporate, the 1s t Respondent could have been represented at the interview by any other representative other than its Managing Director and Shareholder who was said to have been outside Zambia at the time of the interviews. 10. 1.10 It was also Counsel for the Appellants' strong submission that the same reasoning which has been projected above applied to the unavailability of the 1st Respondent's Counsel at the interviews. 10.1.11 The Appellants' Counsel went on to submit that, at law, a limited Company is a distinct legal person which exists independently of its Shareholders or Directors. In this regard, learned Counsel referred us to a passage JlS which was drawn from the legendary and celebrated case of Salomon -v- Salomon2 whose salutary principles have been adopted in countless Zambian cases including this Court's decision in the case of Anti-Corruption Commission -v- Serioes Farms Limited3 , among many others. 10.1.12 The Appellants' Counsel concluded his arguments around the first ground of appeal by submitting, in effect, that the 1st Respondent should solely take the blame for failing to nominate another person to go and attend the interviews in question on its behalf instead of insisting that only the 1s t Respondents' Managing Director could attend the subject interview on the 1st Respondent's behalf. 10.1.13 Turning to the second ground of appeal, by which the Appellants' Counsel faulted the Court below for having held to the effect that only the 1st and 2 nd Respondents and not any other person should be interviewed for the Commercial Stand and by a different Panel on a date to be agreed by the Parties through their Counsel, learned Counsel for the Appellants was at pains to J16 come to terms with this ·holding which, according to him, offended the law. In this regard, Counsel cited our judgment in the case of Justin Chansa -v- Lusaka City Council4 where we held thus: "The authority to consider applications for land allocation from members of the public is vested in the President of Zambia who has delegated this authority to the Commissioner of Lands.. .. The powers to allocate land and make offers to successful applicants is reposed in the Commissioner of Lands" 10.1.14 According to the Appellants' Counsel, the holding of the Court below, as captured in the second ground of appeal, offends the law to the extent that the same seeks to limit the manner in which the 2 nd Appellant performs his public functions by directing that the 2nd Appellant should conduct interviews relating to the allocation of the Commercial Stand only with the 1st and 2 nd Respondents to the exclusion of the general public and on a date to be agreed between the 1st and 2nd Respondents' Advocates. In Counsel's estimation, such an approach would be tantamount to the 2nd Appellant ceding his public duty to private entities. J17 10.1.15 In resisting the lower Court's order that fresh interviews to be conducted by a different Panel should be arranged in which only the 1st and 2 nd Respondents should participate, the Appellants' Counsel submitted that, in the event of the proposal to call for fresh interviews finding favour with this Court, such interviews should not be restricted to the 1st and 2 nd Respondents but must, in the interest of transparency, be open to the general public and consistent with the 2 nd Appellant's modus operandi in matters of land alienation. 11. 1. 0 1 sT RESPONDENT'S ARGUMENTS OPPOSING THE APPEAL 11.1.1 The 1st Respondent's point of departure in attacking the Appellants' first ground of appeal was to contend that only the 1st Respondent properly applied for the Commercial Stand in response to the advertisement which had been placed in various media by the 3 rd Respondent. 11.1.2 According to the 1st Respondent's Counsel, the 2 nd Respondent did not apply, in the prescribed form, for J18 the Commercial Stand and yet 'the Appellants' went ahead to interview its representative while ignoring the 1st Respondent's request to re-schedule the interviews on the basis that the persons that the 1st Respondent desired to represent it at the interviews were unavailable on the date that had been appointed for the same. 11.1.3 According to the 1s t Respondent's further contention, there was total impropriety in the manner the Appellants had organized the interviews, not least because the 2 nd Respondent had not applied while the advertisement relating to the Commercial Stand made no mention of interested applicants having to attend interviews; when the same were to be conducted e. t.c. According to the 1st Respondent's Counsel, the afore -mentioned 'omissions' made it difficult for interested applicants to be constantly alert and prepare for the interviews. 11.1.4 The 1s t Respondent's Counsel further complained that, inspite of the 1st Respondent's Counsel having written a letter to the 2 nd Appellant on 31 st July, 2003 J19 seeking to have the interviews which had been set for 6 th August, 2003 re-scheduled to mid-September in order to allow for the 1st Respondent's Managing Director to return to Zambia from overseas, the 2 n d Appellant's appeal was totally ignored. 11.1.5 According to the 1st Respondent's advocates' aforementioned letter, its author, Counsel Mumba S. Kapumpa SC, was also not going to be available on the date of the interviews by reason of the fact that he was going to be having a prior Court engagement at Kabwe. 11.1.6 The 1st Respondent's Counsel further submitted, citing well known authorities, that in order for the Company to appoint any other person to represent it, it had to do so formally, via a resolution. 11.1.7 Referring to reported Zambian Cases such as Boxtel -v- Keamey5 ; and, Zambia Consolidated Copper Mines PLC -v- Richard Kangwa and Others6 the First Respondent's Counsel posited that shareholders enjoy, as a matter of right, overriding J20 authority over the Company's affairs and even over the wishes of mere nominees or Directors. 11.1.8 The First Respondent's Counsel then went on to contend that there was evidence on record showing that the {l st Respondent's Managing Director] was the only one to make such decisions [i.e. to represent the 1st Respondent at the interview]. 11.1.9 The 1st Respondent's Counsel insisted that only the 1st Respondent's shareholders were appropriate to attend the interviews in question adding that the Appellants ought to have yielded to the Shareholders' wishes. 11.1 . 10 According to the 1st Respondent's Counsel, Public Offices like the Appellants should always exude fairness and fair play in their decision-making process. Counsel accordingly submitted that the process which the Appellants allowed to prevail had compromised the integrity of the interviews in question. Under these circumstances, learned Counsel submitted that the Court of Appeal's J21 decision in terms of which the trial Court's judgment was assailed could not be impeached. 11.1. 11 Turning to the 2 nd Ground of Appeal, 1n terms of which the Appellants' Counsel contended that the lower Court erred both in law and fact when it held that only the 1st Respondent and the 2 nd Respondents and no one else should be interviewed by a different Panel on a date to be agreed by the parties through their respective advocates for the Commercial Stand 1n question, the 1st Respondent's Counsel's immediate reaction to this ground was that the same did not have the support of the parties' respective pleadings in High Court Cause 2009 /HP/ A60 as they were filed in the High Court Registry at Lusaka prior to the trial of the action before the Hon. Mr. Justice E. L. Musona. 11.1.12 According to learned Counsel for the 1st Respondent, in the absence of the Appellants' 2nd Ground of Appeal and the Arguments relating thereto being supported by relevant pleadings, this ground (Ground Two) together with the Arguments J22 supporting the same should be disregarded and wholly discounted by this Court for being devoid of merit. 11.1.13 In Counsel for the 1st Respondent's estimation, the scenario which is envisaged in the 2 nd Ground of Appeal, namely, re-advertising and opening up the Commercial Stand to other applicants, is not tenable because the Appellants already exercised their mandate (namely, advertising the Stand, inviting interested applicants to apply and attend the interview) . 11.1 .14 The 1st Respondent's Counsel cited the case of Justin Chansa -v- Lusaka City Council4 to support his proposition in 11. 1. 13 to the effect that both the 1st and 2°d Appellants' power and role in relation to the Commercial Stand having been duly exercised, the duo now stands functus officio. 11. 1. 15 To further reinforce his view around the meaning and effect of the expression 'functus officio', the 1st Respondent's Counsel referred to Black's Law J23 .. Dictionary, 10th Edition, which defines the term thus: "[having performed his or her office]" (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished." 11.1. 16 At the hearing of the appeal, learned Counsel for the 1st and 2 nd Appellants, Mr. C. Mulonda, confirmed having filed the Appellants' Heads of Argument upon which the appealing duo was relying. We were, accordingly, invited to set aside the judgment of the Court of Appeal while restoring the judgment of the trial Court. 11.1.17 For their part, Mr. S. Sikota, SC (leading) and Mr. Sianondo, learned Counsel for the 2 nd and 1st Respondents respectively, indicated at the hearing that the 1s t and 2 nd Respondents fully supported the Appellants' Arguments with respect to the 1st ground of appeal and joined the Appellants in inviting us to restore the judgment of the trial Court. 11.1.18 With regard to the 2nd ground of Appeal, the 1st and 2 nd Respondents' Counsel submitted that only the 1st and 2 nd Respondents should be allowed to participate in the J24 interviews for the Commercial Stand and adding that only the duo had shown interest in the Stand. 11.1.19 ounsel then went on to refer us to the Supreme Court f Kenya's Judgment in Raila Odinga & 2 Others vs. ndependent Electoral & Boundaries Commission 3 Others7 where that Court cited with approval an xcerpt from an article by Daniel Malan Pretorius "The Origins of the Functus Officio Doctrine with S ecial Re erence to its a lication in Administrative Law" (2005) 122 SAW 832 which reads: " The Functus Officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter ... The [principle]" is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker." 11.1.20 The sentiments which have been quoted in the preceding paragraph were expressed in the case of Re J25 6 Denton Road, Twikenham, Middlesex8 where aisey J relied on Livingstone v Westminster Co9 and obertson v Minister of Pensions 10 (1949) 1 QB 227 for he proposition that: "[any}" such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot, in the absence of express statutory power of the consent of the person or persons affected, be altered or withdrawn by that body ... The contrary view would introduce a lamentable measure of uncertainty." 11.1 .21 According to Counsel for the 1st Respondent, the law hich regulates the advertising of land is the Land ircular No. 1 of 1985. This law, according to the 1st espondent's Counsel, did not give the Appellants ower to review their decision once the power had been exercised as was the case in this matter. The advertisement was done and the public invited to apply and a closing date made public. If the Appellants were to be allowed to proceed with what they seek to achieve through this ground of appeal, there would be no end for finality for the decision makers nor any beginning of J26 nforcement of their decision. Thus, the decision akers in the position of the Appellants, would change heir positions as they like, to the pain of the parties ho had in fact compiled, which they should not be ermitted. 11.1.22 Learned Counsel for the 1s t Respondent further ubmitted that the advertisement in question was nder the direction of a Court Order which was omplied with and that the Court of Appeal was not imiting the power of the Appellants but, instead, it was ·n compliance with what the Appellant had set itself · ncluding the closing dates of receiving application. ccordingly, we were urged to dismiss this second round of appeal as well. 12.0 C NSIDERATION OF THE APPEAL AND OUR DECISION 12.1 have examined the judgment appealed against in the text of the material which was before the Court below, Grounds of Appeal together with the Heads of ment for and contesting the appeal. We must ediately pay tribute to Counsel on either side of the J27 this appeal 1s about for their helpful 12.2 e previously observed, having regard to the fate which 11 what the Appellants had presented as the 3rd Ground ppeal in the Memorandum of Appeal and that ground's rel tive Heads of Argument, we propose to confine the en uing discourse to the 1st and 2 nd Grounds of Appeal. In oint of fact, we are of the irresistible view that the first gr und is not only the determinative ground for this appeal bu constitutes the pillar on which the second and wholly co tingent ground hangs. Indeed, the outcome of our rat er holistic inquiry into the myriad of issues which the fir t ground of appeal projects will wholly inform the ne essity/futility or otherwise of considering the second gr und of appeal. 12.3 As debated before us, the first ground posited that "the Co rt below erred both in law and in fact when it held th t the failure [on the part of the 3 rd Respondent] to ajj ord the 2 nd Respondent an interview [in relation to acquisition of the Commercial Stand in question] w improper and irregular and gave the 2 nd J28 Re pondent [an] undue and unfair advantage" (the ita icized words in square brackets have been added by ou selves to achieve the necessary clarity). 12.4 In pening his Arguments supporting the Appellants' first gro nd of appeal, learned Counsel for the Appellants, Mr. M londa, contended that the conclusion by the Court bel w that it was 'improper' and 'irregular' for the 2 nd Ap ellant not to have afforded the 1st Respondent an int rview in relation to the acquisition of the piece of land in uestion [ allegedly because] this failure gave the 2 nd Re pondent an undue and unfair advantage, was wrong in fac . 12.5 ned Counsel for the Appellants went on to contend , contrary to the conclusion which the lower Court rea hed as highlighted above , the 2nd Appellant did, by a lett r dated 30th July, 2003, invite (albeit separately) both the 1st and 2°d Respondents to attend the interviews in qu stion on 6 th August, 2003 at 09:30 and 10:00 hours res ectively. Counsel went on to add that the successful int rviewee was the one who was to be allocated the Co mercial Stand. J29 12.6 Ari ing from the contention in the preceding paragraph, Co nsel for the Appellants submitted that there was no qu stion of the 2 nd Respondent having been afforded an unfair advantage in relation to the 1st 12.7 Ac ording to learned Counsel for the Appellants, the 1st Re pondent's failure to attend the interviews in question something of its (that is, the 1st Respondent's) own ing which could not be blamed on the 2 nd Appellant. further projected that the absence or vailability of the 1st Respondent's Managing Director or hareholder and the Company's legal representative on the date of the interviews in question could not have totally inc pacitated the 1s t Respondent, which is a body from attending and participating in the int rviews through the medium of another human rep esentative. 12.8 In uttressing the contention in the preceding paragraph, the Appellants' Counsel referred us to the celebrated En lish case of Salomon -v- Salomon2 and invited us to pt that no good ground existed or was proffered by the J30 1s t Respondent to justify its failure to send another re resentative to attend the subject interviews on its alf seeing that the 1st Respondent is a body corporate. 12. 9 As we understood him, the gist of Counsel for the 1st pondent's contentions under the 1st ground of appeal wa that the 1st Respondent's Managing Director, who was aw y, was the only person who was best suited to re resent the 1st Respondent at the interviews. Counsel asserted that the absence of advance notice as to n the interviews were to be conducted meant that the 1st Respondent had no opportunity to designate someone els to represent the 1st Respondent in relation to the int rviews in question. 12.10 To support the contentions in 12.9 , the 1st Respondent's nsel placed reliance on the case law which we earlier all ded to above. 12. 11 As earlier observed, no Heads of Argument were filed on be alf of the 2 nd Respondent in reaction to the Appellants' fir t ground of appeal. It will be recalled, however, that at th hearing of the appeal, learned Counsel for the 2 nd pondent, Mr. S. Sikota SC, invited us to record the fact J31 th t he supported the appeal with respect to the first gro nd of appeal. Mr. Sikota S. C. also expressed his su port for the judgment of the trial Court. In addition, Mr Sikota S. C. confirmed his adoption of the Appellants' ar ments in support of the first ground of appeal. 12.12 We have keenly considered the Appellant's Arguments and su around the first ground of appeal as su marised above relative to those of the 1st Re We have also taken note of the position wh ch learned Counsel for the 2 nd Respondent adopted at the hearing of the appeal and are in no difficult to state th t we have found ourselves more attracted to the Ap ellants' contentious and exertions so far as the same rev lved around the first Ground of Appeal. 12.13 In taking the position which we have taken 1n the pr ceding paragraph, we have noted the reasoning of the Co rt of Appeal in the judgment under attack which re saning, we dare add, inexorably attracted or invited the fir t ground of appeal. As we see it, the reasoning of the rt of Appeal found expression via the fallowing st ements: J32 "The evidence on record shows that the [1st Respondent] had only two shareholders, both of whom were in Europe at the time of the interviews. These ... two [were] the best placed to attend the interviews and address the issues. According to the letter of 31 st July, 2003, the [tst Respondent's] lawyer was also committed elsewhere and even if he had attended the interviews, the best he was going to do was to ask for a re-scheduled (SIC) date. In any case, you cannot force a party to send alternative people when they knew (SIC) and understood on their part who was best suited to attend to the matter. We note that the Lands Committee, through [the Commissioner of Lands] did not proffer any explanation as to why they could not accommodate the request by the Appellant, in order to afford them an opportunity to be heard in view of the history of the matter ... The failure to afford the [1st Respondent] an interview was improper and irregular and gave the 1st Respondent undue and unfair advantage" 12.14 It ·s beyond dispute or controversy that the 1st and 2nd Re pondents were the entities which were targeted and 1n 'ted for the interviews in question. It is equally 1n ubitable that the 1st and 2 nd Respondents were at all m terial times artificial legal persons or bodies corporate wh · ch only acted through the medium of their duly au horized human agents. The 1st and 2 nd Respondents we e neither sole traderships nor partnerships. J33 12.15 Th letters of invitation to attend the interviews in question wh'ch were addressed to Cetina Transport Limited (the 2 nd Re pondent) and Metro Investments Limited (the 1st Re pondent) as corporate entities emanated from the 2 nd Ap ellant and were dated 30th July, 2003. Those letters, wh s e subject matter was "Interviews for Stand No. 22756, Lumumba Road, Lusaka" read as follows: "Refer to the above captioned matter. Following the advertisement in the "Times {of Zambia]" on 11th May, 2003 and your application dated 12th May, 2003, you are hereby invited for interviews on 6 th August, 2003, in the Ministerial Conference room at 10:00 hours. Your attendance will be appreciated." 12.16 It i worthy noting that the contents of the above letter to bo h the 1st and 2 nd Respondents were exactly the same sa e that the letter to the 2 n d Respondent described its (ie, th 2 nd Respondent's) application letter as having been da ed 13th May, 2003 while its interview appointment time wa indicated as 09:30 hours. For the avoidance of doubt, interview appointment time for the 1st Respondent was as 10:00 hours. (We briefly pause here to the 1st Respondent's allegation that the 2 nd J34 Re pondent did not apply for the Commercial Stand, given t has been adverted to in this paragraph) . 12. 17 also worthy of note that the advertisement referred to 1n aragraph 12. 15 above was of the nature of a Public No ice by the 3 r d Respondent and was couched in the foll wing terms: "NOTICE The Lusaka City Council invites interested individuals or organisations capable of developing Stand No. 22756 located along Lumumba Road [and] measuring 2295 square metres in the Lusaka Province of the Republic of Zambia. Applications forms can be obtained in Room 203 Old Wing, Civic Centre. These are to be accompanied [with] a non-refundable fee of Kl00,000.00. Applicants are requested to submit photostat copies of documents to support their application together with their application form, i.e. (i) Certificate of incorporation (ii) Support evidence of financial capabilities (iii) Investment licence (investors) (iv) Up to date bank statement" 12.18 As we see it, it can scarcely be doubted that, so far as the po sible acquisition of the Commercial Stand was co cerned, the 1st and the 2 nd Respondents were targetted 1n heir capacity as corporate entities. J35 12.19 needless to say, plainly elementary that, as cor orate or artificial entities, the 1st and the 2 nd Re pondents were bound to act through the medium or ins rumentality of their authorized human agents. 12.20 E lier in this judgment, we quoted some passages from judgment of the Court of Appeal which is now under att ck which captured part of that lower Court's rather nishing reasoning that: "The two Shareholders were the best placed to attend the interview and address the issues ... You cannot force a party to send alternative people when they knew and understood on their part who was best suited to attend to the matter" ... 12.21 It ill also be r ecalled that, in the course of delivering its gment, the Court of Appeal took a very dim view of the evi ence of Mausamvu W anki (DW 2) who had testified on be alf of the 2 nd Appellant. 12.22 Ac ording to the Court of Appeal, in his evidence, DW2 'de iberately' made no reference to the 1st Respondent's let er requesting for the re-scheduling of the interviews. In view which the Court of Appeal took, the evidence of D 2 demonstrated that the 2 nd Appellant was not J36 pr pared to accommodate the 1st Respondent's request to chedule the interview by all means despite the fact that dispute over the Commercial Stand needed to be h dled with care, transparency and equity as this Court earlier counselled. 12.23 , yet again, pause here to mention that when the ute the subject of the present appeal first entered this rt, the position which we took in relation to the dispute ov r the Commercial Stand was that Circular Number 1 of 1995 on Land Allocation was not fallowed when the mercial Stand was earlier allocated. Furthermore, this rt expressed its agreement with the Order of the Lands unal in terms of which that quasi-judicial forum di ected that the Commercial Stand should be advertised all applications for the same considered on merit be ore the successful applicant is chosen. 12.24 W feel constrained to pause here , yet again, and return to the view which the Court of Appeal took in relation to th 2 nd Appellant's decision to proceed with the interviews of t h August, 2003 inspite of the 1st Respondent's request to re-schedule the same. J37 12.25 quite evident from what we have unravelled above that 2 nd Appellant's decision to proceed with the interviews uestion did not find favour with the Court of Appeal on ount of the factors and circumstances which we have alr ady highlighted above. To put it plainly, the Court of Ap eal would have preferred to have the 2 nd Appellant re edule the same. 12.26 ay, perhaps, be helpful, if we can, at this stage, lay b e how the request to re-schedule the interviews for the mercial Stand was packaged by the 1st Respondent's ers in their letter which was dated 31 st July, 2003: M.88/MSK/02 "31st July, 2003 The Commissioner of Lands Lands Department PO Box 50694 LUSAKA Dear Sir RE: INTERVIEWS FOR LUMUMBA ROAD - LUSAKA STAND NO. 22756, Kindly refer to your letter dated 30th July, 2003, addressed to our clients, Messrs Metro Investments Limited, concerning interviews which are scheduled for Wednesday 6 th August, 2003. Unfortunately, the Managing Director of our client company is out of the country and the undersigned will be attending court in the Supreme Court sitting in Kabwe on the same date. J38 • We ask that you kindly re-schedule the interviews to mid-September 2003 when our client will be back in the country. We apologise for any inconvenience our request may cause, but you will kindly appreciate the interest our client has in this matter. We shall be grateful for your understanding. Yours faithfully MALAMBO & COMPANY Mumba S. Kapumpa" 12.27 reading of the letter in 12.26 which, for the avoidance y doubt, was written on the 1st Respondent's behalf s not suggest, even remotely, that: (i) only the 1st Respondent's Managing Director/ Shareholder could have represented the 1st Respondent at the interview; or (ii) that the day-to-day affairs and business of the 1st Respondent were to remain frozen and unmanaged for the entire period that the Managing Director referred to in (i) was to remain outside the Republic of Zambia; or (iii) that the 1st Respondent did not have anyone among its cadre of employees who discharged functions relating to the Company's: (a) Accounting/ Finance/ Auditing functions; (b) Company Secretarial funct ion J39 • 12.28. We confirm that we highlight our observations at 12.27 in or er to dispel the ostensible notion, canvassed on behalf of he 1st Respondent, that only this Company's Managing Di ector could have represented it at the interviews in qu stion. As we see it, this clearly porous notion by the 1st Respondent cannot even withstand the force of its own ac owledgement, at para 12. 9 of this judgment, that the 1st Respondent actually had the option of designating eone else to attend the interviews on its behalf. 12.29 W must also accept and align ourselves with learned nsel for the Appellants' contention that yielding to the po ition which was canvased on behalf of the 1st which, for the avoidance of doubt, re olved around the 1st Respondent's purely internal ar angements, would have been tantamount to having the Appellant and the 3 rd Respondent improperly doning the modus operandi of their statutory roles in accommodate the 1st Respondent's private In making this observation, we are alive to ner (in which the trial was approached in the sense of nature of the court action which the 1st Respondent J40 • ha instituted) and the type of relief which were deliverable 12.30 It i worth recalling that, according to the invitation which we referred to in paragraph 12.17, the invitation by the 3 rd pondent to have "... interested individuals or anizations capable of developing [the Commercial St nd] apply to be considered for the Commercial St nd" in question required such individuals or or anisations to submit their applications together with tostat copies of: (a) Certificate [relating to the Applicant Company's] incorporation (b) Evidence/Proof of financial capacity (c) Investment licence (in the case of investors) (d) Up to date bank statements 12.31 In he view which we have taken, it cannot be far-fetched or ven deemed as speculative for us to suggest that it is availability or fulfilment of the requirements specified in 12.30 which was critical to the 30-minute interviews in qu stion. J41 • 12.32 In eed, fulfilling the requirements in 12:30 above was not goi g to necessarily or unavoidably require the physical or pe sonal presence of the 1st Respondent's Managing ctor or Shareholder as any suitably authorized agent or fficer of the Company could have been designated to pe form the role which was envisaged in 12.30. In regard, we totally discount, as being wholly dis'ngenuous, the Court of Appeal's disposition, as fully ad erted to at 12. 13, that only one of the 1st Respondent's tw Shareholders could have attended the interviews or, in eed, performed the role which, in the light of our ob ervations at 12.28 above, the invitation at 12.30 en isaged. 12.33 In oint of fact, it would be idle even to suggest that any ad ocate from the firm of advocates known as Malambo & Co , other than Mr. M. Kapumpa, could not have pr ceeded to attend the interviews on behalf of the 1st Re pondent and fulfilled the requirements adverted to in 12 30. 12.34 ving away from the theme of the last few preceding p agraphs , it will be recalled that a poignant feature of J42 • the Appellants' p t ground of appeal stemmed from the Co rt of Appeal's holding that the 3 rd Respondent's failure (or refusal) to afford the 1s t Respondent an interview was "i roper and irregular" and [ allegedly] gave the 2 nd pondent an undue and unfair advantage. 12:35 It ill also be recalled that the Appellants reacted to the ertion in 12.34 by contending that the 1s t Respondent's fai re to participate in the interviews in question was of its own making given the option which was available to it (th 1st Respondent) to send a representative, other than its (preferred) Shareholder and Managing Director, to the 12.36 H ing regard to our observations at 12.32 and 12.33 ve , a feature of the Court of Appeal's judgment which we found most troubling in the light of the totality of the ev · dence before that Court was the suggestion that the 3 r d Re pondent's failure (or refusal) to accord the 1s t Re pondent an interview in connection with the 1st Re pondent's desire to acquire the Commercial Stand was and irregular" without that Court cl arly /adequately/ sufficiently projecting what, precisely, J43 • it as that was 'improper' or 'irregular' about the 3 rd interviewing a party which, inspite of ha ing been interested in acquiring the Commercial St d, had, for no sufficient or credible cause, failed to sent itself for the interviews in question. 12.37 To put it plainly and simply, how did the Court of Appeal fin it justifiable to impute the rather weighty tags of ropriety' and 'irregularity' to the 3 rd Respondent in the lig t of the circumstances (the evidence) surrounding the no -participation of the 1s t Respondent in the interviews 1n uestion as Counsel for the Appellants contended? 12:38 Ac ording to the Oxford Dictionary of Current English 4 th edition, the adjective 'improper' means 'not in ordance with accepted Standards and behavior' while word 'irregular' means 'not according to a rule or st ndard'. 12.39 Fo its part, the Oxford Advanced Learners' Dictionary, 1 h edition, defines the word improper' as 'dishonest' or 'm rally' wrong: 'not right' or appropriate for the situation. T e same Dictionary defines 'irregular' as 'not normal; 'not ac ording to the usual roles'. J44 12.40 Ha ing regard to our unpacking of the words 'improper' 'irregular' above, the following questions appear to us to eg answers: what was it that was 'not in accordance wi h accepted standards and behavior' or not consistent Wl 'a role or standard' about the 3 rd Respondent's de ision (as the 2 nd Appellant's agent) to proceed with the int rviews in question as originally communicated to the in ited participants to the interviews (who for the av idance of doubt, had included the 1st Respondent)? 12.41 In ·ts judgment, as quoted at para 12: 13 above, the Court of ppeal reasoned that the 2nd Appellant did not proffer explanation as to why it (or the 3 rd Respondent) could no accommodate the 1st Respondent's request to tpone or re-schedule the interviews in question thereby de ying the 1st Respondent the opportunity to participate in the interviews and that this failure to accord the 1st R spondent an interview was 'improper and irregular' 12.42 It s worth signalling at this stage that the reasoning and a a roach of the Court below, as captured in the judgment ealed against, appears to have been rather superficial J45 • ignored the public and Statutory origin and basis of 2 nd Appellant's (acting by the 3 rd Respondent's) role. 12.43 e see it, the superficial nature of the Court of Appeal's roach and reasoning were clearly borne out by the er the Court made directing not only who was to be int rviewed for the Stand, how the Panel of the int rviewers was to be constituted and the period within w ·ch the interviews were to take place. 12:44 It eems to us that, by taking the approach which the Co rt of Appeal took in its judgment as borne out by what we have adverted to in paras 12.42 and 12.43 above, that or, at any rate, appears to have been more about the fate which had befallen the 1st at the expense of the 2 nd Appellant (a ting by its agent, the 3 rd Respondent)'s obligation to di charge its functions in accordance with the law. This is indeed, the essence of what learned Counsel for the pellants rightly complained about as we recounted at 12.45 In eed, we are also in entire agreement with learned unsel for the Appellants' contention that it was not open J46 to he Court below to prescribe, via its Order now the su dect of the 2 nd ground of appeal, how the 2 nd Appellant sh uld or was to discharge his legal or statutory authority on behalf of the President of Zambia as we observed in Ju tin Chansa -v- Lusaka City Council4 • 12:46 Wi h all due respect, it also seems to us that, in its ju gment, the Court of Appeal appears not to have paid su icient attention to the relief which the 1st Respondent seeking before the trial court namely: "An order that the allocation of the (Commercial Stand) by the Commissioner of Lands [the 2 nd Appellant] to the [2nd Respondent] be declared null and void and that [the 1st Respondent was] entitled to be offered the same property" 12.47 A ertinent issue or question which flows from the relief wh ch the 1st Respondent was seeking in the trial Court which it had pleaded as captured in the preceding p agraph was: did the 1st Respondent marshal the ne essary evidence, let alone, articulate any relevant law, ntitle the trial Court, or, indeed, the Court below, to pr nounce the allocation of the property in question to the Respondent "null and void"? J47 12:48 ile it is completely otiose, for the purpose of the task at h d , to delve into the countless decisions which have au horitatively unravelled the meaning of the expression "n ll and void", it is sufficient merely to call to mind its inary or dictionary meaning, namely, ' ... having no al Jorce or effect or not valid' or, in the words of ha ·ng no legal force or validity" 12.49 In all seriousness, on what legal basis (appropriately ported by evidence) could a Court, properly directing lf, have felt entitled to order or declare the allocation of th Commercial Stand to the 2 nd Respondent ' null and '? 12.50 Fu thermore, 1n what legally plausible sense could the all cation of the Commercial Stand to the 2 nd Respondent, 1n he circumstances which have been highlighted in this gment, have been 'null and void' in the sense of the s e (i.e the allocation) having had no legal force or effect, or egally invalid? 12.51 Sp aking for ourselves, we are at a loss to appreciate and c not even imagine how the non-participation of the 1st J48 pondent in the interviews which had culminated in the cation of the Commercial Stand to the 2 nd Respondent ld have plausibly rendered such allocation 'null and voi ' unless, of course, a besmirched or soiled meaning is att ibuted to this expression. 12.52 In ruth, we harbour no doubt that the Court of Appeal ap roached the appeal which was before it rather casually superficially. Indeed, had that Court proceeded erwise, it would, at the very least, have upheld the saning and conclusion of the trial Court. 12.53 In passing, we do honestly lament that the judgment ap ealed against substantively raised far too many qu stions than it answered. This, in and of itself, was a re flag which only served to undermine the judgment's int grity and legitimacy. 12.54 Th s far and, when all is said and done, we are in no dif iculty to uphold the first and only determinative ground of ppeal. As previously indicated in this judgment, the 2nd ground was contingent upon the fate of the first and st ds consumed by the latter's triumph. For pleteness, any interlocutory orders which may have J49 b en granted along the way and which have a bearing on t e outcome we have just announced stand discharged. 12.55 A for costs, these will be for the Appellants and the 2nd R sponden t in the High Court, Court of Appeal and this C urt. The Order of the Court of Appeal in its judgment of 2 th April, 2020 condemning the 3rd Respondent to costs st nds set aside. For the removal of any doubt, the costs a e to be taxed in default of agreement. M. MUSONDA DEPUTY CHIEF JUSTICE ...... . . K .e.: ............. . JUDGE JSO