Moffat Fungamwango v Char and Basil Farms Limited and Anor (SP 84 of 2024) (18 November 2025) – ZambiaLII

- L-:-1 ---\- \ IN THE COURT OF APPEAL OF ZAMBIA SP 84 of 2024 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: 1::v B 2025 MOFFAT FUNGAMWANGO ~ I e J RtWt5TRY AND CHARLAND BASIL FARMS LIMITED pt RESPONDENT THE ATTORNEY GENERAL 2nd RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA & PATEL, JJA 11th & 1gth November 2025 For the Appellant: Mr. P.C. Muya of Messrs Muya & Co For the pt Respondent: Mr. M.G. Numbwa of Messrs Kitwe Chambers (standing in for Messrs. Dzekedzeke & Co) For the 2nd Respondent: Mrs. B.K. Chisanga Principal State Advocate Messrs Attorney General's Chambers RULING Patel, JA, delivered the Ruling of the Court Rl I Page Cases Referred to: 1. KV Wheels and Construction Limited and Others v Development Bank of Zambia- SCZ Appeal No. 123 of 2016 2. Bidvest Food Zambia Limited, Chipkins Bakery Supplies (Pty) Limited, Crown National (Pty) Limited, Bidfood Ingredients (Pty) Limited, Bidvest Group Limited v. CAA Import and Export Limited- SCZ Appeal No. 56 of 2017. 3. Hermanus Philipus Steyn v Giovanni Ruscone Sup Ct Appl No. 4 of 2012 4. KV Wheels Construction Limited v Invest Trust Bank Pie - SCZ/8/29/2021 5. Kekelwa Samuel Kongwa vs Meamui Georgina Kongwa - SCZ/8/05/2019. 6. Zlatan Zlatakkoauronotivic v Stanbic Bank Limited - SCZ/08/14/2020 7. John Kawadilu Kalenga v Mususu Mambo Kalenga -Caz Application No.35 of 8. Cosmas Mweemba and 34 Others v Chikankata District Council and the Attorney General- SCZ/07 /05/2024 9. Paul Evans Kasonde v Finance Building Society and Another-SCZ Appeal No. 64 of 2016 10. The Securities and Exchange Commission v Zambia Breweries Pis and two others-SCZ/7/16/2024 11. Hambani Ngwenya and Annie Musonda Kawandami v Lubamba Copper Mine Limited -SCZ/7 /15/2015 Rules and Legislation Referred to: 1. The Court of Appeal Act No.7 of 2016 2. The Court of Appeal Rules Statutory Instrument No. 65 of 2016 3. The High Court (Amendment) Rules Chapter 27 of the laws of Zambia R2 I Page 1.0 INTRODUCTION AND BACKGROUND 1.1 This is the Ruling in respect of a Notice of Motion for leave to appeal the Judgment of this Court dated 7th November 2024 to the Supreme Court of Zambia pursuant to Section 13 of the Court of Appeal Act1 and Order X Rule 2 (1) of the Court of Appeal Rules2 . 1.2 The 1st Respondent (in his capacity as Plaintiff) commenced this matter in the High Court against the Appellant (the ist Defendant in the lower Court) by Writ of Summons and Statement of claim dated 3rd September 2021 seeking the following orders: A declaration that the Plaintiff (l5t Respondent) is the lawful owner of property known as L/16490/M situate in Mfuwe. ii. An order to cancel certificate of title No. 38331 of Lot No. 21969/M 111. An order compelling the defendants to demolish their respective structures built on and intruding onto the plaintiff's property in total disregard of the boundary thereby encroaching on the plaintiff's land. iv. Damages for trespass and inconvenience caused to the plaintiff. v. Any other relief as the Court deems fit; and vi. Costs 1.3 The lower Court, after hearing the matter, delivered its Judgment on 30th June 2022. On 22nd December 2022, the Appellant filed its Summons for an Order for special leave to review the said Judgment of the Court. The said application for special leave to review was opposed and the Ruling of the R3 I Page lower Court was delivered on 7th March 2023 which dismissed the application for special leave to review. 1.4 Dissatisfied, the Appellant subsequently appealed to this Court, and we rendered our Judgment on 7th November 2024, (now the subject of leave to appeal to the Supreme Court) by which we dismissed the appeal with costs to the i5t Respondent. 1.5 The Appellant has moved this Court seeking leave to appeal to the Supreme Court of Zambia on four (4) grounds as stated in the intended Memorandum of Appeal. 1.6 As we have noted in the past, we reminded Counsel to be mindful that in an application by Motion for special leave to appeal to the Supreme Court, the Party applying is the Applicant and not necessarily the Appellant or the Respondent as it may have been in the substantive appeal before the Court. We shall hereafter refer to the Appellant as the Applicant. 2.0 NOTICE OF MOTION 2.1 The Motion was filed on 21st November 2024 with an affidavit in support sworn by the Applicant, Moffat Fungamwango. 2.2 The deponent has averred that following the Judgment of this Court, a copy of which was exhibited and marked 'MFl', the Applicant is desirous of appealing to the Supreme Court. Reliance was placed on exhibits marked 'MF2' and 'MF3' being copies of the proposed Notice of Appeal and Memorandum of Appeal respectively. R4 I Page 2.3 The intended grounds of appeal are as follows: ,. The Learned Judges of the Court of Appeal erred in law and fact when it agreed with the Ruling of the High Court Judge that no reasons were advanced by the Applications for the delay in the application for special leave to review despite the record of appeal in the affidavit and submission to advance a vivid sequence of events which caused the delay in seeking the review of the Judgment of the High Court. The Learned Court of Appeal Judges erred in law and fact when they 11. heavily relied on the unsubstantiated arguments/facts of the 1st Respondent as per affidavit in opposition in the High Court and further imposed them as the 1st Respondents submissions in the Court of Appeal despite the 1st Respondent not having filed submission in the Court of Appeal or served the Appellant with the said submissions. iii. The Learned Court of Appeal Judges erred in law and fact when they declined to consider the nature of the material evidence on record newly obtained and the consequences of such evidence on the Judgment of the High Court or any subsequent legal actions which may follow; ultimately failing to use their discretion judiciously and independently to deal with the application for special leave for review before them in spite of the technicality of delay which was explained by the Appellant, but instead fully relied on the reasoning of the High Court. ,v. The Learned Court of Appeal Judges erred in law and fact when they held that the High Court not being satisfied by any reasons advanced by the Appellant was not required to consider the merits of the arguments. RS I Page 2.4 The deponent avers, that on the advice of Counsel, the intended appeal raises points of law of public interest, that there are serious issues to be tried which are of significant importance and which transcend the Parties to th is action. 2.5 He also believes that leave to appeal would serve the interest of justice and not prejudice the Respondents and would further uphold the integrity of the judicial process. 2.6 The Applicant has also placed reliance on its skeleton arguments filed in support of the Notice of Motion. We have fully interrogated these and will reference them where appropriate in the analysis section of our Ruling. 3.0 THE i5t & 2nd RESPONDENT'S OPPOSITION 3.1 The i5t & 2nd Respondent did not file any opposing process for various reasons narrated below. 4.0 THE HEARING OF THE NOTICE OF MOTION 4.1 At the hearing of the Motion, Counsel Muya for the Applicant placed reliance on its heads of argument in support. He also informed the Court that the Applicant had caused to be filed two Affidavits of service, confirming service on each of the Respondents. 4.2 For his part, Counsel Numbwa confirmed his instructions to not oppose the Motion. R6 I Page 4.3 Counsel Chisanga submitted that there had been no service of the Motion nd on the 2 Respondent, and that if service had been effected, she had not been made aware of it and that she took it upon herself to place herself on record, while waiting for the hearing of another matter before the same Court. 4.4 Counsel Muya undertook to furnish to the Court a copy of the Affidavit of Service, with respect to the 2nd Respondent. On 14th November 2025, Counsel sent a letter to Court, apologizing unreservedly at not being able to locate the Affidavit of Service and implored the Court to issue further directions as appropriate. As an Appellate Court, we will not issue directions, post-hearing and more especially that the hearing is on the Record. In any event, Mrs Chisanga made submissions in rebuttal on points of law which have been considered. 4.5 Counsel Muya placed reliance on the Record of Motion and argued that the proposed appeal had raised important points of law of public importance which deserve to be pronounced upon by the Supreme Court. He questioned the correct judicial approach to be taken where fresh material evidence is subsequently discovered and whose effect would be to correct factual inaccuracies in terms of land boundaries. He urged the Court to grant leave to appeal as the intended grounds of appeal satisfied the required criteria in accordance with section 13 (3} of the Court of Appeal Act1 . I R7 Page 4.6 For her part, counsel Chisanga valiantly opposed the Motion on points of law and submitted that the appeal did not have prospects of success and that there was no novel point or issue for interrogation by the Supreme Court. 5.0 CONSIDERATION OF THE NOTICE OF MOTION 5.1 We have carefully considered the application together with the entire record of motion and the intended grounds of appeal. We have also considered the affidavit and skeleton arguments which have been referred to in paragraph 2 above as well as the viva voce submissions of Counsel. 5.2 The main issue for determination is whether the Applicant has demonstrated that leave to appeal to the Supreme Court ought to be granted based on the proposed grounds of appeal set out in paragraph 2.3 above as read with section 13 (3) (a) (c) and (d) of the Co,urt of Appeal Act1 . The Applicant contends that the intended appeal has raised points of law of public importance which transcend the interest of the Parties to the action, that there are reasonable prospects of success and that it is in the interest of justice, that the leave sought is granted. 5.3 It is trite that leave to appeal to the Supreme Court may only be granted if this Court is satisfied that at least one of the conditions in Section 13 of the Act is satisfied. Section 13 (3) of the Court of Appeal Act No. 7 of 20161 provides as follows: - "(3) The Court may grant leave to appeal where it considers that (a) the appeal raises a point of law of public importance; R8 I Page (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." 5.4 The crucial question before us is whether the Applicant has met the threshold in Section 13 (3) of the Court of Appeal Act1 . We will now examine this Motion to determine whether it has met the established benchmarks. 5.5 We are alive to the threshold required to discharge the argument that the appeal has raised an issue of public importance. We place premium on the decision of the Supreme Court in the case of KV Wheels and Construction Limited and Others v Development Bank of Zambia1 in which the Apex Court, cited with approval, the case of Bidvest and Four Others v CAA Import and Export Limited2 . This decision has established the minimum threshold to be met by a litigant, intending to seek leave to appeal to the Supreme Court of Zambia, commonly referred to as the Bidvest case. 5.6 In the KV Wheels1 case, the Supreme Court stated as follows: "In the Bidvest case, we explained quite clearly that for a point of public importance to provide a basis for granting leave to appeal, it ought to be a point of law- an arguable point of law. We stated as follows: Two final points on section 13 (3) (a). First, it is always critical to bear in mind that under section 13 (3) (1), the three different facets of the qualifying criteria for leave to be granted must be satisfied. R9 I Page These are: (i) a point of law; (ii) of public importance; and (iii) raised in the appeal. We went further to explain in that case that an appeal anchored on findings of fact alone, even if it is demonstrated that those findings were perverse or not borne out of evidence, does not qualify as raising a 'point of law' in the first instance. An ordinary finding of fact ipso facto fails the test on that account alone. 11 5.7 In our now assailed Judgment, we addressed the same cardinal issues, which the Applicant wants the Supreme Court to pronounce itself on. It is clear from the perusal of the intended Memorandum of Appeal, that the intended appeal is grounded on findings of fact which in terms of the KV Wheels1 case does not qualify as raising a 'point of law.' 5.8 It is notoriously obvious that to cast the net on an issue of public importance, it must affect a wider audience and not just the litigants. The Supreme Court of Kenya, in the case of Hermanus Philipus Steyn v Giovanni Ruscone3 , gave guidance on the meaning of a matter of general public importance. It is noteworthy that the Kenyan Supreme Court clarified that for a matter to be one of general public importance, the matter must be of wider public significance, it should be based on uncertain points of Jaw which must transcend beyond the rights or interests of the parties to the dispute. {emphasis ours). 5.9 In our jurisdiction, the Apex Court has clarified the meaning of the phrase 'a matter of general public importance' in the case of KV Wheels Construction Limited v Invest Trust Bank Plc4 in the following terms: I RlO Page "(1) The importance of the matter must be public in nature and must transcend the circumstances of the particular case so as to have a more general significance. (2) Where the matter involves a point of law and that it is for the common good that such law should be clarified so as to enable courts to administer the law, not only the case at hand, but other cases in future." 5.10 Similar sentiments were expressed by a single Judge of the Supreme Court in the case of Kekelwa Samuel Kongwa v Meamui Georgina Kangwa5 when the Judge stated: ". . .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 politic the determination of which should naturally have effect beyond the private interests of the parties to the appeal." 5.11 In a recent decision, in the case of Zlatan Zlatakkoauronotivic v Stanbic Bank Limited6 the Supreme Court stated: "Therefore, 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 interest of the parties to a particular dispute; and it must be raised in the appeal." R11 IPa ge 5.12 In our decision rendered in the case of John Kawabilu Kalenga v Mususu Mambo Kalenga 7 , we rejected the argument that the issue raised grounds of points of law of public importance. We stated in that case that the argument did not meet the threshold stipulated in section 13 (3) (a}, (c) or (d)l. 5.13 In casu, we direct our mind to the intended grounds of appeal (cited at paragraph 2.3 above). In our considered view, although raised as four grounds of appeal, the only major point of dissatisfaction of the Applicant is this Court's refusal to interfere with the Ruling of the Lower Court when it dismissed the Applicant's application for special leave to review. 5.14 In our judgment, now assailed, we noted that both grounds of appeal before us, related to the refusal of the learned Judge in the lower Court to allow the application for special leave to review. It is on the same grounds that the Applicant now seeks leave to appeal to the Supreme Court. 5.15 We stated in our Judgment, that the law and procedure for special leave to review are well settled in the Jurisdiction. There is nothing novel or uncertain in the practice and procedure relating to an application for special leave to review that needs to be settled by the Supreme Court. We noted that the Applicant's application having been filed out of time, needed firstly to satisfy the lower Court of the reasons that led to the delay. We noted also that the delay was a period of almost six (6) months after the delivery of the Judgment of the lower Court. I R12 Page 5.16 We have scrutinized the skeleton arguments of the Applicant and cannot find any specific portion thereof that speaks to any compelling reasons, the issue of public importance or the fact of the appeal transcending the interest of the Parties to the appeal which would allow us to exercise our discretion in favour of the Applicant. 5.17 The Applicant sought to question the judicial approach to the issue of special leave to review, where material evidence has been dramatically discovered and which if available, would have altered the facts before the lower Court. Counsel argued that substantive justice should override procedural norms and that rectification of the coordinates of the land in casu, is compelling a reason enough to warrant the grant of leave to appeal. 5.18 According to the Applicant, the case raises critical issues regarding the application of the Rules surrounding applications for special leave to review. It is the submission that this intended appeal has far-reaching implications for the principles guiding review applications, particularly in the aftermath of the discovery of fresh material evidence balanced with the exercise of judicial discretion when considering technical delays. 5.19 The Applicant seems to canvass the argument that the appeal has public interest to ensure that Courts do not dismiss applications purely on procedural grounds. It is argued that a Judgment that rests on inaccurate evidence, undermines the integrity of the legal process and further argued that for the Public to have confidence in the judicial system, reviews should be allowed when substantial new evidence is discovered. R13 I Page 5.20 The argument, as brazen as it appears, sounds alarming to us. The Applicant appears to suggest that Courts must play to the gallery to ensure that public confidence is not lost, by automatically opening settled decisions in the aftermath of any miraculously discovered new evidence. 5.21 We did, in our Judgment, fully interrogate the limited circumstances in which Order 39 rule 1 of the High Court Rules3 comes into effect. We can do no better than refer to paragraphs 8.5 and 8.6 of our now assailed Judgment, which clearly shows that the practice and procedure in applications for special leave to review have been determined and settled in the Jurisdiction. There is no grey area here and certainly nothing novel about the issue other than the dissatisfaction of the Applicant. To open a matter, on every dissatisfied party's whim, will simply turn litigation on its head and will render every proceeding a never- ending circus. 5.22 We have not seen any new ground or reason to re-open this appeal as the lower Court made sound findings of fact based on the evidence placed before it and which we agreed with. The reasons offered by the Applicant were not satisfactory before the lower Court, nor before us on appeal and not convincing in this Motion for leave to appeal. 5.23 The Applicant also appears to argue that the case at hand involves a land dispute which transcends the interest of the Parties as it relates to the broader issues of national governance, land use and public policy particularly concerning the involvement of the Ministry of Lands in resolving disputes and hence the public interest argument. I R14 Page 5.24 It is cardinal to note that the appeal before this Court, was simply dealing with the refusal of the lower Court to grant special leave to review the Ruling of the Court. We were not involved with the specific issues of land use nor the actual dispute between the Parties. We noted in our Judgment that the lower Court, not being satisfied of the reasons advanced by the Applicant, was not required to therefore consider the merits of the argument. 5.25 We are fortified in the position we have espoused and rely on a recent decision of the Supreme Court rendered in the case of Cosmas Mweemba and 34 Others v Chikankata District Council and the Attorney General8 , SCZ/07 /05/2024 concerning land rights in the resettlement scheme in Mugoto Naluama, where the full Court in denying a renewed application for leave to appeal stated as follows: "what we stated in Bidvest that a point of law of public importance is one that transcends the interests of the immediate parties to the action and must be of concern to the broader public, we meant real interest, existing not non-existent, or speculative interest or concern. For future interests, it must be probable not fantastic". 5.26 The Supreme Court went on to say: "The current dispute and the issues it raises are so fact-specific, making it unlikely that a similar set of circumstances will arise. ... " 5.27 Applying the reasoning above, in advancing this line of argument, the Applicant appears to take us into new hypothetical arguments concerning the disputed land and its use with reference to ecological conservation and RlS I P a g e sustainable land use. These are arguments that are misplaced in context as these issues were neither raised nor pronounced upon in our Judgment, the subject of this application. To this extent, we dismiss the argument that the appeal raises issues of national governance and hence points of law of public importance. 5.28 It was clear to us in our Judgment that the Applicant appears to have misunderstood the limited application under Order 39 rule 2 of the High Court Rules. The guidance of the Supreme Court in the case of Paul Evans Kasonde v Finance Building Society and Another9 is pertinent in casu. 5.29 In another recent Ruling rendered in the case of The Securities and Exchange Commission v Zambia Breweries Pis and two others10 , on a renewed Motion for leave to appeal, the Supreme Court on the issue of what constitutes an issue of public importance noted as follows: "It is evident, where discernible public interest or public policy concern exists, in the anticipated elucidation by this Court, any such point of law may indeed qualify as one of public importance notwithstanding its private origins. 11 5.30 In another recent Ruling of the Supreme Court, delivered in the case of Hambani Ngwenya and Annie Musonda Kawandami v Lubamba Copper Mine Limited,11 a single Judge granted leave to appeal, as the issue in that matter related to the interpretation of whether section 5 of the Employment Code Act is arbitrable or not. Therein, it was deemed an issue of public importance which transcended the interest of the Parties. R16 I P a g e 5.31 For the above reasons and in our considered opinion, the Motion before us, in as far as it deals with the issue of the law and practice in applications for special leave to review is distinguishable, as neither does it reveal uncertainty in the applicable law, nor transcends the Parties' interests and identifies no exceptional or jurisprudential issue warranting the grant of leave to appeal. 5.32 Having analyzed the Motion, we are of the considered view that the issues only affect the private interest of the Applicant herein, and his attempt at re-litigating the same issues. We find no merit in the application for leave to appeal to the Supreme Court and dismiss it. We award costs to the 2nd Respondent. M. J. SIAVWAPA JUDGE PRESIDENT F. M. CHISHIMBA A. N. PATEL S.C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE I R17 Page