Zambia Breweries Plc and Ors v Securities and Exchange Commission (APPLICATION NO. SP09 OF 2024) [2024] ZMCA 233 (1 August 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPLICATION NO. SP09 OF 2024 HOLDEN AT LUSAKA (Civil Jurisdiction) .,, / - . BETWEEN: ZAMBIAN BREWERIES P~ ~ O l A''. J U i J/ 1ST APPELLANT AUHEUSER-BUSCH INBEV PLC ~ / 2ND APPELLANT NATIONAL BREWERIES PLC 3RD APPELLANT AND SECURITIES AND EXCHANGE COMMISSION RESPONDENT CORAM: Chashi, Sichinga and Sharpe-Phiri, JJA ON: 27th June and 1st August 2024 For the Applicant: C. Phiri (Ms) - In House Counsel For the Respondents: J. Mgisi, Messrs Chibesakunda & Company RULING CHASHI JA, delivered the Ruling of the Court. Cases referred to: 1. Savenda Management Services Limited v Stanbic Bank Zambia Limited-SCZ Selected Judgment No. 10 of 2018 2. Bidvest Food Zambia Limited & Others v CAA Import & Export Limited-SCZAppeal No. 56 of 2017 3. Twampane Mining Co-operative Society Limited v E and M Storti Mining Limited - SCZ Selected Judgment No. 20 of 4. Kenya Plantation and Agricultural Workers Union v Kenya Export Floriculture, Horticulture and Allied -R2- Workers Union (2018) CKLR (Civil Application No. Sup 5 of 2017) 5. Ndungu Chinyama (ti a Nampundwe Bakery) v Zesco Limited-CAZ Application No. SP 19 of 2023 Legislation referred to: 1. The Court of Appeal Act, No. 7 of 2016 2 . The Securities Act, Chapter 354 of the Laws of Zambia 3. The Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia Rules referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 1.0 INTRODUCTION 1.1 On 28th February 2024, we delivered a Judgment in favour of the Appellant. In the said Judgment, we held that the Respondent did not have the legal authority to charge the Appellants an authorisation fee with regard to the takeover transaction. 1.2 We agreed with the Appellants that the Respondent had no legal auth ority to ch arge an authorisation fee. 2.0 THE APPLICATION 2 . 1 Dissatisfied with our Judgment, the Respondent (now the Applicant) has filed a motion for leave to appeal to the Supreme Court. The Court has been moved pursuant to -R3- Qrder 10/2 (9) and (12) of The Court of Appeal Rules 1 (CAR) as read with Section 13 of The Court of Appeal Act1 (CAA). Attendant to the motion are the affidavit in support and skeleton arguments. 2.2 According to the Applicant, the intended appeal raises a point of law of public importance, especially that it borders on the Applicant's mandate promulgated under statute. Further, that the intended appeal raises issues that require further deliberation by the Supreme Court in the interest of the advancement of the Capital Markets jurisprudence. It is the Applicant's contention that the intended appeal has reasonable and realistic prospects of success. 2 .3 The seven intended grounds of appeal appears at paragraphs 2.7 of the Applicant's skeleton arguments. The Applicant submitted that the motion meets the criteria set out in Section 13 (3) CAA and it is therefore a proper case to grant leave. In this respect, reliance was placed on the case of Savenda Management Services Limited v Stanbic Bank Zambia Limited1 , on the need for an Applicant to satisfy one or more of the requirements listed under Section 13, CAA. -R4- 2. 4 The case of Bidvest Food Zambia Limited & Others v CAA Import & Export Limited2 was cited, where the Supreme Court explained what a point of law of public importance is and also that it engages the wider public interest. 2.5 It was further submitted that, as the regulator of the Capital Markets in Zambia, it is necessary that the Judgment is appealed, to allow for a conclusive finding and further determination by the Supreme Court on matters pertinent to the dispute, but not opined on by the court. Also, it was argued that it is in the interest of justice and for the advancement of jurisprudence in the Zambian Capital Markets that leave should be granted. 2.6 According to the Applicant, if leave is not granted, it would suffer an injustice, as although The Securities Act1 has been amended, the rules promulgated under the repealed Act remain in force, and are effective legislation governing Capital Markets. 3.0 OPPOSING ARGUMENTS 3.1 In opposing the motion, the Respondent filed into Court an affidavit in opposition accompanied by skeleton arguments. It was submitted that the intended grounds of -RS- appeal do not raise any important legal issues and they do not have a good prospect of success. 3.2 According to the Respondent, the intended appeal does not relate to a widespread concern in the body politic, the determination of which should naturally have effect beyond the private interest of the parties. It was further argued that the appeal relates to the application of legislation which has since been repealed and replaced. 3.3 The Respondent also relied on the Bidvest case, where the Supreme Court guided that before granting leave to appeal on a point of law of public importance, the court must be satisfied that the adjudication is for the public good or so novel that it engages the wider public interest. 3.4 It was submitted that, the Respondent must demonstrate that the appeal addresses issues of common good and clarifies a point of law that can be applied to future cases. That simply demonstrating that a difficult question of law arose is insufficient. 3.5 It was further submitted that the repealed Act is no longer law in Zambia as at 27th December 2016, when The Securities Act, No. 41 of 20 16 came into force. That a perusal of the subsisting Act, will show that it has -R6- elaborate and clear provisions on mergers and takeovers, at Part XI, including making provision for authorisation fees to be payable. 3.6 On the issue of the intended appeal, having reasonable prospects of success, our attention was drawn to the case of Twampane Mining Co-operative Society Limited v E and M Storti Mining Limited3 , where the Supreme Court stated as follows: "Indeed, there is no need to appeal for the sake of appealing when the appeal has no prospects of success." 3. 7 According to the Respondent, the proposed grounds of appeal do not have likelihood of succeeding and they do not reveal any other compelling reason , which can persuade the court to grant the application. 4.0 ARGUMENTS IN REPLY 4.1 In reply, the Applicant cited the case of Kenya Plantation and Agricultural Workers Union v Kenya Export Floriculture, Horticulture and Allied Workers Union4 and submitted in line with that case, that the intended appeal is a matter of general public importance as it is significant to the operations of the Capital Markets in -R7- Zambia. Further, that it will have a broad based impact transcending the parties interests as it impacts all Capital Market players and future transactions in Zambia. 4.2 The Applicant submitted that the development of Capital Markets jurisprudence in Zambia should not be impeded by stringent criteria, but should be supported for the benefit of the wider public. We were invited to properly evaluate the proposed notice of appeal and see to it that it is desirable and in the public interest, that the matter be further deliberated upon by the Supreme Court. 4.3 Counsel for the Respondents submitted that there is a similar case before the High Court, namely The Securities and Exchange Commission v Finsbury Investments Limited - 2018/HPC/323 5.0 ANALYSIS AND DECISION OF THE COURT 5.1 We have considered the motion and the arguments by the parties. The appeal which was before us, emanated from the Judgment of the Capital Markets Tribunal, which ruled that the applicable law during the takeover transaction was the repealed Securities Act. In addition, the Tribunal made a finding that the Applicant did have the legal authority to charge the authorisation fees. 5 . 2 After considering the decision of the Tribunal and the six -RS- grounds of appeal which were before us, as well as the arguments by the parties, we were of the considered view that, the key issue for determination before us, was whether the Applicant herein had the legal authority to charge the authorisation fees, with regard to the takeover transaction. 5 .3 One of our duties as a Court in considering matters before us, is to identify the issues which we are being called upon to make a determination on. This is what we exactly did in this matter and we cannot therefore be faulted for narrowing the issue for determination. 5. 4 In determining the narrowed issue, we had recourse to the repealed Act and the current Securities Act. We also took into stride The Securities (licencing, fees and Levies) Rules as amended, the Takeover and Merges Rules and The Interpretation and General Provisions Act. We interrogated all the necessary and applicable provisions of the law in arriving at our decision. 5 .5 We do not anticipate any issues ar1S1ng from our Judgment, that would necessitate adjudication by the Supreme Court. We reiterate that, this Court is not merely -R9- a stepping stone on one's way to the Su preme Court. In the case of Ndungu Chinyama (ti a Nampundwe Bakery) v Zesco Limited5 , we emphasised the need for finality in litigation, when we made the following statem ent: "While the hierarchy in the Judiciary exists to afford litigants to climb up the ladder in pursuit of justice, justice dictates that there should be finality to litigation." 5.6 Section 13 CAA restricts access to th e Supreme Cou rt by deferring to the apex court, only weighing issues in the most deserving of cases. The Supreme Court in the Bidvest case elucidated that the whole purpose of Section 13 CAA, is to enable the Court of Appeal filter out those cases th at are underserving of the attention of the Supreme Cou rt. 5 . 7 In the matter before u s , we dealt with th e repealed Act, in making a determination on whether the Applicant had legal auth ority to charge authorization fees , under the r epealed Act as read with the rules and other attendant provisions of law. We exhaustively dealt with the law and as earlier alluded to , we do not see any dispute or issue which has arisen from our Judgment, which transcends -RlO- into the public arena, arouse or engage broader public interest or concern. The fact that there is a similar case in the High Court is not enough. If anything, that case is bound by our decision. 5.8 Consequently, we do not see any reasonable prospects of success if the matter was allowed to ascend to the Supreme Court. 5.9 We are of the view that, the intended appeal does not meet the threshold envisaged under Section 13 CAA and the test set out in the Bidvest case. In the view that we have taken, this is not a proper case to grant leave to appeal. Leave is refused, with costs to the Respondent h erein. co . D . COURT ~ ARPE-ifu~ COURT OF APPEAL JUDGE