Ntombi Ndhlovu (Suing as the administrator of the Estate of the late Christopher Siwila Ndhlovu) v Zambia National Commercial Bank (SP 83/2024) (19 November 2025) – ZambiaLII

IN THE COURT OF APPEAL FOR ZAMBIA -~-- SP 83/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ·: ~ 1· ., / 202: NTOMBI NDHLOVU (Suing as t4e admi The estate of the late Christopher Siwila Ndhlovu) · LICANT AND ZAMBIAN NATIONAL COMMERCIAL BANK RESPONDENT CORAM KONDOLO, PATEL AND CHEMBE, JJA On 13th November, 2025 and 19th November 2025. For the Applicant Mr. N. Siwila - Messrs Mulungushi Chambers For the Respondent Mrs. A. Mwalula - Mesdames Ndemanga Mwalula and Associates RULING CHEMBE, JA, delivered the Ruling of the Court. Cases Referred to: (i) Savenda Management Service Limited vs Stanbic Bank Zambia Limited SCZ Appeal No. 37 /2017 (ii) Drill Africa Company Limited vs Konkola SCZ/8/246/2016 (iii) Bidvest Foods Zambia Ltd & Others vs CAA Import and Export Ltd 56/2017 (iv) Kekelwa Samuel Kangwa vs Meamui Georgina Kongwa SCZ/8/05/2019 R2 Legislation referred to: 1. The Court of Appeal Act No. 7 of 2016 2. The Court of Appeal Rules No. 65 of 2016. 3. The Rules of the Supreme Court of England, White Book, 1999 Edition. l. This is an application by way of Notice of Motion for leave to appeal to the Supreme Court by the Applicant. The application is made pursuant to Section 13 (3) of the Court of Appeal Act No. 7 of 2016 as well as Order 10 Ru le 5 and Order 11 Rule 11 of the Court of Appeal Rules Statutory Instrument No. 65 of 2016. The notice of motion was accompanied by an affidavit in support deposed by Ntombi Ndhlovu, the Applicant herein. 2. She deposed that this Honourable Court delivered a judgment on 23rd April, 2021. It was averred that she was dissatisfied with the judgment of the Court and intends to appeal to the Supreme Court. That on 29th October, 2024 the Court granted the Applicant leave to file the application for leave to appeal out of time. It was stated further that the appeal raises significant points of law and procedural questions that are of public interest and therefore warrant consideration by the Supreme Court. R3 3. In the filed skeleton arguments, the Applicant relied on section 13 (3) of the Court of Appeal Act as well as the case of Savenda Management Service Limited vs Stanbic Bank Zambia Limited1 in submitting that leave to appeal should only be granted where the appeal raised significant points of law, demonstrated a reasonable prospect of success and compelling reasons. In addition to this, preposition Order 59 Rule 14 (22) of the White Book and the case of Drill Africa Company Limited vs Konkola2 were cited. The Applicant reiterated that the procedural flaws in the court below and the misapplication of the doctrine of res judicata by this Court raised significant points of public interest which could only be determined by the Supreme Court. It was submitted in conclusion, that the appeal had reasonable prospects of success and we were urged to grant order for leave to appeal. 4. The Respondent opposed the application and filed an affidavit in opposition together with skeleton arguments on 29th October 2025. In the affidavit in opposition, the Respondent stated that the judgment the Appellant sought to challenge was delivered in 2021 and that this application was baseless. The Respondent R4 denied that there were any procedural issues of public interest that required to be determined by the Supreme Court. 5. In the arguments in opposition, the Respondent relied on the cases of Savenda Management Services Limited v Stanbic Bank (z) Limited (supra) and Southern African Trade Limited v Hawkwood Property Investment Limited (incomplete citation provided) in submitting that Applicant had not demonstrated that any of the grounds under section 13 of the Court of Appeal Act had been satisfied. We were urged to dismiss the application. 6. At the hearing, both parties relied on their respective written arguments. 7. We have considered the Applicant's notice of motion and the filed skeleton arguments by both sides. The application before us is for leave to appeal to the Supreme Court against the judgment of this Court. It is settled that an appeal to the Supreme Court is no longer a matter of right as leave to do so must be sought and granted. Section 13 of the Court of Appeal Act provides that; "The Court may grant leave to appeal where it considers that- RS a) The appeal raises a point of law of public importance; b) It is desirable and in the public interest that an appeal by the person convicted should be determined by the Supreme Court; c) The appeal would have a reasonable prospect of success; or d) There is some other compelling reason for the appeal to be heard". 8. The Supreme Court 1n the case of Savenda Management Services v Stanbic Bank Zambia Limitedlsupral cited by the Applicant gave guidelines on what this Court should take into consideration when handling an application for leave to appeal. The Supreme Court said that: "The permissible grounds for the grant of leave to appeal in civil matters are set out in section 13 (3) (a) (c) (d). These are where: the appeal raises a point of law of public importance; the appeal would have a reasonable prospect of success; or there are some compelling reasons for the appeal to be heard. The rationale for the foregoing is an acknowledgement of the fact that the resources of the courts are overstretched and if it were otherwise, the doors to justice would be open to busybodies whose only aim is to delay the inevitable execution of a judgment. We are of the firm view that this court should only be open to R6 a litigant who has moved the Court of Appeal and met the threshold set out in section 13 (3)." 9. Similarly, the Supreme Court considered what amounts to a point of law of public importance in the case of Bidvest Foods Zambia Ltd & Others vs CAA Import and Export Ltd3 In · endorsing the reasoning of the single judge in the case of Kekelwa Samuel Kangwa vs Meamui Georgina Kongwa4 the Supreme Court held as follows: "For a legal question to be treated as a point of law of public importance, it must have a public or general character rather than one that merely affects the private rights or interests of the parties to a particular dispute. The legal point in issue should relate to a widespread concern in the body public the determination of which should naturally have effect beyond the private interests of the parties to the appeal". 10. The Applicant firmly asserted that the intended appeal raised fundamental points of law of public importance in relation to this Court upholding the lower court's decision in the absence of an affidavit in opposition and the serious flaws in enforcing the equitable mortgage. The Applicant maintained that the intended R7 appeal had prospects of success as this court ignored the principle of natural justice of affording parties a fair hearing and mis-applied the doctrine of res judicata which affects the protection of property rights in foreclosure cases. 11. We have previewed the following intended grounds of appeal: i) The Court of Appeal erred in law and fact by upholding Justice Chulu's judgment despite the absence of an affidavit in opposition on the record, contrary to assertions otherwise. ii) The Court of Appeal erred in law and fact by finding no grounds to overturn Honourable Justice Chulu's judgment which was rendered without an affidavit in opposition, thereby denying the Respondents an opportunity to be heard - a clear basis for setting aside the judgment. iii) The Court of Appeal erred in law and fact by deeming Honourable Justice Chulu's judgment regular, despite a lack of proper service of notice and the fact that the 2nd Respondent, the principal officer of the 1st R8 Respondent, had passed away before the proceeding, with no affidavit of opposition filed. iv) The Court of Appeal erred in law and fact by suggesting that reversing Honourable Chulu's judgment would undermine Honourable Justice Musonda's ruling on ownership even though no lawful transfer of ownership to the Appellant had occurred, and the equitable mortgage enforcement was irregular. v) The Court of Appeal was incorrect in treating ownership as res judicata based on Honourable Justice Musonda's foreclosure ruling, as the ownership in question was not fully litigated and overlooked enforcement irregularities in transferring to the 2nd Respondent. 12. Having reviewed the intended grounds of appeal, we do not find that the intended appeal raises a point of law of public importance or demonstrates that the issues presented are of public importance with broad ramifications for the public. We therefore find that application for leave to appeal to the Supreme R9 Court does not satisfy the requirements set out in section 13 of the Court of Appeal Act. 13. In view of the foregoing, we find no merit in this application and we accordingly dismiss it. We award costs to the Respondent, to be taxed in default of agreement . .....•.•............•.••••.•....•...•••••...... M.M. KONDOLO SC COURT OF APPEAL JUDGE {~~Q ..............~ ~·············· ··················••··••··············· A.N. PATEL SC Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE