Konkola Copper Mines Plc (In Provicional Liquidation) v the Copperbelt Energy Corporation Plc (CAZ NO 08/335/2024) (11 April 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA CAZ NO 08/335/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) 11 APR 2025 BETWEEN: KONKOLA COPPER MINES P APPLICANT Liquidation) AND COPPER.BELT ENERGY CORPORATION PLC RESPONDENT Before Hon. Mrs. Justice A. M. Banda-Bobo in Chambers on 1 April, }th 2025. For the Applicant: Mr. D. M. Chakoleka and Mr. E. Lilanda, both of Messrs Mulenga Mundashi Legal Practitioners For the Respondents: Mr. M. Mwenye, SC and Mr. J. Njobvu both of Messrs Mwenye and Mv11itwa Advocates RULING Cases referred to: 1. Antonio Ventriglia and Manuela Ventriglia v. Finsbury Investments Limited, (SCZ Appeal No. 2/2019) 2. Ovmers of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Limited (1989) KLR 1 3. JNC Holdings Limited v. Development Bank Zambia Limited (SCZ Judgment No. 22/2013}. Legislation referred to: • The Court of Appeal Act No. 7 of2016 • The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 • Rules of the Supreme Court 1999 Edition 1.0 Introduction 1.1 This is a Ruling on an application by the Respondent, Copperbelt Energy Corporation Plc (CEC), for an order to discharge an Ex-parte Order granted by this Court on 18th March, 2025, in favour of the Applicant, Konkola Copper Mines Plc (in provisional Liquidation) (KCM). 1.2 The application was lodged on 20th March, 2025, and was accompanied by an affidavit and skeleton arguments and list of authorities. The application is anchored on Section 9 of the Court of Appeal Act, 2016 and Rule 1 (2} of Order 7 of the Court of Appeal Rules (CARs) 2.0 Background 2.1 The Respondent, who is the applicant in this Ruling, is one of the creditors of KCM (In provisional liquidation). On 28th June, 2024, the High Court delivered a Ruling in which it sanctioned the Creditors Scheme of Arrangement. The Respondent was not pleased with being classified as a Class 2 Creditor, and moved to appeal the Ruling to the Court of Appeal on 12th July, 2024. 2.2 Meanwhile, the Applicant was ordered to pay the Respondent, within ten (10) days from the Ruling, the amount of R2 US$11,843,871.45 as a first instalment of the amount found due, namely US$29,609,678.63. The Respondent then took steps of applying for an enforcement Order, ,vhich order was granted on 2nd December, 2024. 2.3 An application to stay the Ruling of 28th June, 2024, and 2nd nd December, 2024, and an application to review the Ruling of 2 December, 2024 were filed before the High Court by the Applicant. 2.4 However, by a combined Ruling, dated 7th March, 2024, the High Court dismissed all three applications filed by the Applicant, including the application for a stay of execution pending appeal. 2.5 On 11th March, 2025, the Respondent issued a demand for the sum of US$1 l .843,871.45. Thereafter, a writ of fifa was granted and the Sheriff of Zambia proceeded to levy execution on the applicant on 181h March, 2025; where various items belonging to the Applicant were seized. 2.6 Based on the above execution, the Applicant quickly moved this Court to grant a stay of further execution and sale of seized goods in execution pursuant to the Rulings dated 28th June, 2024 and 2nd December, 2024 in relation to the Respondent, R3 pending the determination of the appeal that was launched, and being prosecuted before this Court. This Court granted the Applicant an Ex-parte stay of further execution and sale of the seized goods, pending hearing of the application inter partes. 3.0 Application to Discharge Stay 3.1 Before the application could be heard inter-partes, the Respondent launched the current application, subject of this Ruling; where it sought to discharge the ex-parte order granted earlier. The application was accompanied by an affidavit in opposition and skeleton arguments. Due to the position I have taken in this matter I do not intend to reproduce the affidavit and arguments herein. 3.2 Suffice to say the application to discharge was vigorously opposed by the Applicant, ·who filed an affidavit in opposition and skeleton arguments. Again I will not endeavor to reproduce them here, for reasons that will become clear in this Ruling. 4.0 Hearing 4.1 The matter was heard on 9th April, 2025. Counsel for both parties were present at the hearing and made lengthy submissions in support of their respective positions, as the R4 record ,v:ill show. I have duly considered the submissions, but will not reproduce them here. 5.0 Analysis and Decision 5.1 I have carefully considered the matter before me, wherein the Respondent seeks to discharge the Ex-parte Order of Stay of further execution and sale of the goods seized in execution. 5.2 The issue for resolution in this matter in the first instance is whether this matter is competently before Court. In other words, does this Court have jurisdiction to determine the application by the Applicant, for a stay of further execution and sale of seized goods? 5.3 The issue of jurisdiction has ably been dealt with by the Supreme Court in a plethora of cases. In Antonio Ventriglia and Manuela Ventrlglia v. Finsbury Investments Limited1 , the Supreme Court quoted v.ri.th approval, the Kenyan case of Owners of the Motor Vessel "Lillian S" v. Caltex Oil {Kenya) Limited2 which held that: "It is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide RS the issue right away on the material before it. Jurisdiction is everything, without it, a court has no power to take one more step." 5.4 Further, at page R61, paragraph 7.22 of the same case, that: "To put it plainly, what the Court of Appeal did in proceeding to hear the Respondent's application in the circumstances we have highlighted above, amounted to nothing". 5.5 Further guidance can be gleaned from the case of JNC Holdings Limited v. Development Bank Zambia Limited3 , where it was held that: "Also, it is settled law that if a matter is not properly before a court, that court has no jurisdiction to make any orders or grant remedies." 5.6 Furthermore, that: "If a court has no jurisdiction to hear or determine a matter, it cannot make any lawful orders or grant any remedies sought by a party to that matter!' 5. 7 In the matter before this Court, it is evident that the writ of fifa emanated from the lower Court. Ideally, and in normal circumstances, recourse to halt further execution should have been had to that Court. Only if the lower Court refused R6 to grant it, would it have been escalated to this Court, as a renewed application. 5.8 I am guided, by Order 59 rule 14, sub-rule 4, Rules of the Supreme Court 1999 Edition of the White Book (RSC). That Order allows an aggrieved party to seek relief from the Court of Appeal in the absence of a Ruling or order from the Court below. However, the Order is very clear that for such an application to be entertained, the applicant must show that there are special circumstances which make it impossible or impracticable to apply to the Court below before escalating the application to this Court. 5.9 That Order reads as follows: "(4) Wherever under these rules, an application may be made, either to the Court below or to the Court of Appeal, it shall not be made in the first instance to the Court of Appeal, except where there are special circumstances which make it impossible or impracticable to apply to the Court below." 5.10 The application made by the Applicant ought to have come to this Court as a renewal from a refusal to grant the stay of R7 view is that the application for a stay of further execution and sale of seized goods is incompetently before this Court. That this Court therefore lacks jurisdiction to determine the application. 5.13 Consequently, and despite the variant efforts of the Respondent to have the ex-parte Order discharged, based on the grounds proffered, my view is that the Applicant's application fails on the issue of jurisdiction. 6.0 Having found thus, I deem the Applicant's application for a stay of further execution and sale of seized goods, incompetent and it is dismissed accordingly. 6.1 The Ex-parte Order granted to the Applicant on 18th March, 2025 is discharged forthwith. 6.2 Costs for the Respondent, to be truced 1n default of agreement. DELIVERED AT LUSAKA THIS 11 DAY OF APRIL, 2025. TH ~ ••.................• ••••.•.•..•............ Hon. Mrs. Justice A. M. Banda-Bobo COURT OF APPEAL JUDGE R9