Zambia China Economic Trade Cooperation Development Limited v Zambia Jihai Agriculture Company Limited (SCZ/7/18/2024) (19 May 2025) – ZambiaLII

IN THE SUPREME COURT OF ZAMBIA SCZ/7 / 18/2024 HOLDEN AT LUSAKA :'·:· (Civil Jurisdiction) JUOtCIA'R'I , "' \·-' ,,-v 'LG75 \ ~ J ---1, • ,\ - BETWEEN: .. ·~ BOX 500 ZAMBIA CHINA ECONOMIC TRADE APPLICANT COOPERATION DEVELOPMENT LIMITED AND ZAMBIA JIHAI AGRICULTURE RESPONDENT COMPANY LIMITED CORAM: Musonda, DCJ, Kaoma and Kabuka, JJS On the 4th day of February, 2025 and 19th day of May, 2025. For the Applicant: Mr. L. Kalaluka, SC, Messrs. Likando Kalaluka & Co. Ms. K. Mwila, Messrs. Muleza Mwiimbu &Co. For the Respondent: Mr. W. Chitungu, Messrs. Wallace & Co. Legal Practitioners. RULING KABUKA, JS, delivered the Ruling of the Court. Cases referred to: 1. Watson Nkandu Bowa v Fred Mubiana & Zesco Limited [2012] Vol. 3, R2 Z.R. 165 2. Sonny Paul Mulenga and Others v Investrust Merchant Bank Limited [1999] Z.R. 101 3. Zambia Revenue Authority v Post Newspapers Limited SCZ Judgment No. 18 of 2016 4. Astro Holdings and Others v Edgar Hamulele and Others SCZ/8/26/2021 Legislation referred to: 1. The Court of Appeal Act, No. 7 of 2016 s.13 (3) (c) 2. Supreme Court Practice (Whitebook), 1999 Edition, Order 59 rule 14,18 Introduction 1. By a ruling dated 14th February, 2024 the Court of Appeal declined to grant the applicant a stay of execution of the High Court judgment, pending hearing and determination of the appeal. The applicant's application for leave to appeal the ruling was equally declined. 2. The applicant renewed the application for leave to appeal the ruling declining stay of execution before a single judge who, pursuant to rule 48 (3), adjourned it to the Court. The application is supported by an affidavit and Skeleton Arguments to which the respondent has similarly, filed its own affidavit and Skeleton Arguments. We will revert to these documents later in this ruling. R3 Background 3. The High Court delivered a judgment dated 2nd May, 2023 which the applicant appealed against to the Court of Appeal. The applicant applied before the High Court, but was declined an order to stay execution of the judgment pending appeal. 4. Following that refusal, the applicant went to renew the application for stay of execution ex-parte before a single judge of the Court of Appeal, who directed an inter partes hearing. It was the applicant's contention that the nineteen ( 19) grounds of appeal it had deployed before the Court of Appeal had prospects of success. In the event that the order staying execution was not granted, it would suffer irreparable damage. 5. Upon hearing the application inter partes, the single judge of the Court of Appeal in a ruling dated 28th September, 2023 declined to stay execution of the High Court judgment pending appeal, on the premise that the grounds of appeal did not disclose any prospects of success. 6. Undeterred by that outcome, the applicant moved a full bench of the Court of Appeal on a renewed application seeking stay of execution of the High Court judgment. Upon hearing the application, the Court of Appeal referred to various past R4 decisions of this Court on considerations that should inform the Court in the exercise of its discretion on whether, or not to grant stay of execution. 7. The case of Watson Nkandu Bowa v Fred Mubiana & Zesco Limited1 was amongst the decisions referred to, where the considerations for such applications were identified as being: good prospects of success; and irreparable damage to be suffered by the applicant, in the event that the order staying execution of the judgment was not granted. 8. The Court of Appeal rendered a ruling dated 14th February, 2024 referred to in paragraph 1, in which it was noted that the applicant anchored its application for stay of execution of the High Court judgment on the contention that the nineteen (1 9) grounds of appeal had good prospects of success. There were no arguments advanced in relation to irreparable damage to be suffered if the order for stay of execution was not granted. 9. The Court of Appeal went on to observe that its perusal of the applicant's 19 grounds of appeal revealed that all the issues raised were adequately reasoned and addressed by the learned trial judge. 10. Accordingly, the Court of Appeal determined that there were no discernible prospects of success in any of the 19 grounds RS of the appeal, warranting the exercise of its discretion in favour of granting the order for stay of execution. 11. Aggrieved with the ruling the applicant sought leave of the Court of Appeal to appeal the said ruling to this Court contending that the proposed appeal has: high prospects of success; raises points of law of public importance; and that there were compelling reasons for the appeal to be heard. 12. In a ruling dated 7th August, 2024 the Court of Appeal found that the proposed grounds of appeal did not disclose any point of law of public importance and had dim prospects of success. The applicant was for those reasoµs, declined leave to appeal the ruling of 14th February, 2024 and has now renewed the application before this Court. Applicant's renewed application for leave to Appeal Affidavit in support of the application 13. In the affidavit in support of the application for leave to appeal, sworn by an Assistant Manager of the applicant, one Mingfei Xie, the deponent states that the High Court judgment of 2nd May, 2023 had found in favour of both parties. The applicant succeeded on some of its claims while the respondent's counter- claims were also upheld. R6 14. The successful counter-claims included special damages in the sum of US$ 361,074.00 and an order awarding the respondent damages for misrepresentation, to be assessed by the Deputy Registrar. 15. The applicant contends that the Court of Appeal in its ruling of 14th February, 2024 intended to be appealed against should leave be granted, 'completely omitted to address its mind to the applicant's submissions and averments (facts/ circumstances), that demonstrate 'good prospects' of the appeal to this Court succeeding and justified the grant of a stay of execution. The Court of_ _A ppeal also failed to give reasons for the finding that the section 13, threshold had not been met.' Affidavit in opposition to the application 16. The affidavit in opposition filed on the part of the respondent was sworn by Wang Xiwei, an engineer. It was in the said affidavit averred that the respondent succeeded on its counter-claim for non-payment of the US$ 361,074.00 for various construction works that were undertaken by the respondent at the applicant's request. The decision of the learned trial judge was informed by the facts and evidence R7 supporting this claim, amongst other considerations relating to the applicable law. 17. The respondent also averred that the impugned ruling reveals that the Court of Appeal had perused all the 19 grounds of appeal in reaching its decision not to grant a stay on the premise that they did not disclose prospects of success. The ruling further shows, that the applicant had failed to demonstrate what damage it would suffer if the order sought to stay execution of the High Court judgment was not granted. 18. It was contended that the applicant was making all manner of unwarranted applications to delay the respondent from implementing the orders of the High Court, particularly with regard to assessment of damages for mi~representation. 19. In response to the applicant's contention on 'good prospects' of success of the appeal to this Court, the respondent referred to the applicant's three proposed grounds of appeal, to which we will revert later in this ruling, and maintained its position that the applicant's intended appeal has no merit. Applicant's Arguments in support of the Application 20. The crux of the contention in the arguments of learned Counsel for the applicant is that, in seeking an order for stay R8 of execution before the Court of Appeal, they had relied on specific authorities to support specific averments, which demonstrate good prospects of the appeal to this Court succeeding. In their response before that Court, the respondent merely rehashed principles to be applied in deciding whether, or not to grant an order for stay of execution without traversing or disputing the applicant's submissions. 21. The applicant contended that, it should no longer be sufficient for the lower Court to merely hold that the appeal has no prospects of success; without demonstrating how the submissions of law and averments (facts and circumstances) presented to the Court do not meet the "good prospects of the appeal succeeding" criterion; for purposes of securing the grant of an order for stay of execution. 22. Learned Counsel submitted that the issues raised in the proposed appeal are of public importance and transcend the interests of the applicant and the respondent to this application; as litigants before the Court of Appeal routinely seek orders for stay of execution pending determination of the appeal. It is for those reasons, that this Court should have a re-look at or reconsider, the concept of good prospects 'of an appeal (to the Supreme Court) succeeding.' R9 23. The case of Bidvest Foods and Others v CAA Import and Export Limited2 was referred to in support of the contention that this Court took time to pronounce itself on the meaning of the phrase 'point of law of public importance,' as expressed in the following words: "Of course, all such questions will be of no consequence, if we do not, as a starting point describe the meaning to be ascribed to the phrase 'point of law of public importance,' as envisioned by section 13 (3) (a) of the Court of Appeal Act. Second, there is need to identify the pith of each of the items making up the qualifying criteria for the grant of leave as inventoried in section 13 of the Court of Appeal Act." 24. In that regard, it was contended that in determining whether an intended appeal raises a point of law of public importance and whether, it retains the qualities of compelling reasons, each case must be considered on its own merits. The Court of Appeal must give the ratio decidendi or reasons for refusing to grant an order for stay of execution. 25. Counsel underscored the point that, public policy extols the desirability of a correct and consistent approach to the grant or denial of orders for stay of execution. This may only be achieved if the court specifically, refutes or demonstrates, why the law does not consider the presented circumstances or facts as constituting high prospects of success to warrant a stay. RlO 26. Counsel concluded by reiterating the submission that, the intended appeal extends beyond the interests of the applicant and the respondent to this application. It has prospects of success; and there is a compelling reason for this Court to grant leave to appeal, for the benefit of the public at large. Respondents Arguments opposing the Application 27. In their Skeleton Arguments in response, learned Counsel for the respondent argued that the application is incompetent as the applicant erroneously seeks to appeal the Court of Appeal ruling dated 14th February, 2024. According to the respondent, the application should properly have been directed to the Court of Appeal ruling dated 7th August, 2024 that declined the applicant leave to appeal to this Court. 28. In the event that this Court were to accept that the application is properly launched, the respondent denies the allegations that it did not dispute the applicant's averments and submissions that purportedly, demonstrated good prospects of the proposed appeal succeeding. The respondent contended that to the contrary, no such demonstrations were attempted to be made or shown by the applicant. Rll 29. Reference was made to the observations made by the Court of Appeal in the impugned ruling of 14th February, 2024 that the applicant in the renewed application for stay of execution to the full bench abandoned the claim advanced before the single judge; that it would suffer irreparable damage if the order sought was not granted. 30. Counsel cited the case of Watson Nkandu Bowa1 for the considerations that inform the Court in the exercise of the discretion to grant a stay of execution being: good prospects of success; and irreparable damage to be suffered by the applicant. The case of Zambia ~evenue Authority v Post Newspapers Limited3 was further cited for the holding that: "Of the two tests the prospects of success is the key consideration as the court should order a stay pending a possible victory and not loss. Therefore, there is no purpose staying ajudgmentfor an appeal that is bound to fail". 31. The submission was that, the applicant by abandoning the claim for irreparable damage had tacitly, accepted that there would be no irreparable harm suffered. The applicant had also failed to demonstrate good prospects of success as alluded to in paragraphs 28. In the absence of both factors that inform the grant of stay of execution, it follows that there are no compelling reasons to grant the application seeking leave to R12 appeal. 32. The respondent went on to submit that the applicant had lamentably failed to explain the viability of any of the three proposed grounds of appeal. The section 13 (3) threshold had therefore, not been satisfied. The holding in the case of Astro Holdings and Others v Edgar Hamulele and Others4, was referred to that speaks to the inadequacy of merely alleging that this or that ground meets one, two, or all of the criteria for granting leave to appeal, without explaining how this comes about. 33. On the applicant's argument th~t the issue raised in the proposed appeal is one of public importance, learned Counsel for the respondent countered that, the· real issue is that the expectations of one party were not met as per the parties' executed agreements/ contracts. That issue is clearly a private commercial transaction and does not transcend the said parties' litigation interests to become a matter of public concern or importance. 34. With regard to the applicant's contention that there is need for this Court to reconsider and give guidance on what constitutes good prospects of success, Counsel submitted that there are a number of past decisions of this Court speaking to this issue. R13 Counsel noted that in the present case, a perusal of the ruling sought to be appealed, shows the Court of Appeal agreed with the High Court findings, that as the damages awarded to the respondent are subject to assessment, the award cannot be executed upon without being assessed. 35. The respondent in reaction to the applicant's submission that the assessment if allowed to proceed while the appeal is being heard, will be costly, contended that litigation is a costly venture to embark on. The applicant purposely, delayed and escalated the matter through various appeals and applications which in turn, have cost implicati9ns. Time could have been saved if the applicant had opted to pursue execution of the sums of money awarded to it against the respondent; as opposed to mounting a myriad of applications before the Court of Appeal, now escalated to this Court. We were urged to dismiss the application for leave to appeal the Court of Appeal ruling declining stay of execution. 36. When the application for leave to appeal came up for hearing before us, Counsel in their oral augmentation and in answer to questions from the Court, maintained their respective positions as recounted earlier, in paragraphs 20 to 35. R14 Consideration of the Application and Decision 37. We have considered the affidavits filed by the parties on both sides together with their respective skeleton arguments, authorities and case law to which we were referred. In our view, the issues raised in the application requiring our determination are: (i) whether, the intended appeal against the ruling of the Court of Appeal dated 14th February, 2024 declining the applicant a stay of execution of a High Court judgment pending the hearing and determination of the appeal by the Court of Appeal, is properly before this Court; and (ii) if so, whether the proposed grounds of appeal satisfy the section 13 threshold. 38. Starting with the question of competency of the application, the respondent has argued that the applicant should properly, have directed its application against the Court of Appeal ruling dated 7th August, 2024 which declined leave to appeal. In addressing that proposition we draw the attention of Counsel to section 13 of the Court of Appeal Act No. 7 of 2016 as read with Order XI rule 1 (4) of the Court of Appeal Rules SI No. 65 of 2016 and Supreme Court Rules Cap. 25 rule R15 18 ( 1) that respectively, provide as follows: Section 13 "13( 1). An appeal from a judgment of the Court shall lie to the Supreme Court with leave of Court. (2) An application for leave to appeal, under subsection (1), shall be made within fourteen days of the judgment". Order XI rule 1 (4) "Where leave to appeal is refused by the Court, an application for leave to appeal may be made to the Supreme Court". Rule 18 (1) "An application to the Court not involving the decision of an appeal shall, unless made informally in the course of the hearing of an appeal, be made in the first place to a single judge". 39. The law as reproduced above is very clear, that where a party is dissatisfied with a decision or judgment of the Court of Appeal, the recourse available to such party is to first, seek leave of the Court of Appeal, to appeal the particular decision to this Court. Where the leave sought is declined by the Court of Appeal, the application can be renewed before a single judge of this Court. 40. Our perusal of the documents filed in support of the application reveal that the Court of Appeal declined the applicant a stay of execution of a High Court judgment it had appealed against to that Court in the ruling dated 14th R16 February, 2024. Following that refusal, the. applicant applied for leave to appeal the ruling to this Court. In a ruling rendered on 7th August, 2024 the Court of Appeal declined the applicant the leave sought. 41. Thereafter, the applicant came on a renewed application before a single judge of this Court, seeking leave to appeal the Court of Appeal ruling dated 14th February, 2024. That application, as stated earlier in paragraph 2, was adjourned for consideration of the Court pursuant to rule 48 (3). 42. We find that the procedure to come to this Court on a renewed application for leave to appeal a~. outlined in paragraph 38, was clearly adhered to by the applicant. It is for those reasons that the issue of procedural impropriety raised by the respondent as identified in paragraph 37 (i) cannot be sustained. 43. Proceeding to the second issue, subject of paragraph 37 (ii) as to whether, the section 13 threshold has been satisfied, the proposed grounds of appeal are couched in the following terms: "1. The Court of Appeal erred in law and fact when it failed or neglected to address the Appellant's submissions and averments that there were prospects of the appeal succeeding as the Respondent could not have been induced to invest in MFEZ by documents (letters) which R17 were authored or came into being, a year or two after the Respondent's investment in MFEZ. 2. The Court of Appeal erred in law and fact when it held that the appeal has no prospects of success, (and) ignored the specific arguments, submissions and averments of facts, law and established judicial precedents that actually demonstrate the appeal's prospects of success. 3. The Court of Appeal misdirected itself in law and fact when it found none of the grounds of appeal had any prospects of success without giving reasons to distinguish the authorities cited or showing how the specific submissions and averments of facts, law and established judicial precedents do not demonstrate high prospects of success". 44. Our perusal of the proposed grounds of the intended appeal as reproduced in paragraph 43 fault the Court below for alleged failure to interrogate issues arising in an appeal that is pending hearing and determination. The applicant contends that those issues were not specifically, addressed by the Court of Appeal, in the ruling of 14th February, 2024 declining the applicant an order staying execution. 45. Contrary to the applicant's contention, however, the Court of Appeal in its ruling of 7th August, 2024 declining leave to appeal, addressed the applicant's contention advocating for specific consideration of the averments and submissions deployed on its part, in observations appearing at page 100, Rl3, paragraph 7.13 stating as follows: ". ......... we are precluded from delving into the merits of the appeal when considering an application for stay of execution. In the case R18 of Sonny Paul Mulenga and Others v Investrust Merchant Bank Limited, the Supreme Court guided that in exercising its discretion whether to grant a stay of execution or not, the court is entitled to preview the prospects of success. If we were to delve into the merits of each ground, we would rislc determining the appeal itself in an interlocutory application. We can only preview the prospects of success." 46. It is against that backdrop of facts that, in the intended appeal to this Court the applicant seeks a prouncement that will reverse the position taken by the Court of Appeal. Stated differently, the applicant would want us to come to the conclusion that the appellant's grounds of appeal to the Court of Appeal have prospects of success. On that premise, the Court of Appeal should have granted the stay of execution order sought by the applicant before that Court. 4 7. We note that at the time of rendering this ruling the applicant's appeal before the Court of Appeal is pending, hearing and determination. Acceding to the applicant's request to reverse the position taken by the Court of Appeal that, the 19 grounds of appeal to that Court revealed dim prospects of success, would certainly result in this Court pronouncing itself on matters yet to be resolved by the Court of Appeal. In effect, this Court would be predetermining the appeal. R19 48. Suffice to add, as stated earlier in paragraph 8 of our ruling that there were no arguments advanced, in the Court of Appeal in relation to irreparable damage the applicant would suffer if the order for stay of execution was not granted. 49. On the particular facts, we find the proposed grounds of appeal directed at the interlocutory ruling of 14th February, 2024 declining stay of execution, to have fallen short of meeting the section 13 threshold. 50. The application for leave to appeal is declined for the reasons given, with costs to the respondent, to be taxed in default of agreement. \ .. M. Musonda DEPUTY CHIEF JUSTICE t"', 17''.\ j - ·•--· ·-···· __( -~ ----- --"' .. . :- --ry;J:::::tr· ---==-- '----- .. ::::::::, R. M. C. Kaoma SUPREME COURT JUDGE J. K. Kabuka SUPREME COURT JUDGE