Safricas Zambia Limited v Barloworld Equipment Zambia Ltd and Ors (CA\/8/20/2024) (13 May 2024) – ZambiaLII

. . IN THE COURT OF APPEAL OF ZAMBIA CAZ/8/20/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) .. ,:v, \P,UC OF"> ,,,_, E,<j BETWEEN: ~r/ /t: rr '. -- 1 · ~ \ · I HT ( )I - ,_.,p~ -l , ; - -,.,-., Afl , j , . .. , ?'.'",11! sAFR1cAs ZAMBIA LIMITED \: / 1 ., lit:Y PLICANT --·. - ,-- •~'.·-::. ..- ,-1 / AND /.-(}~- / "0,1; 0006 7. LlJSA\<J\ BARLOWORLD EQUIPMENT ZAMBIA LTD 18 RESPONDENT T NATIONAL ROAD FUND AGENCY RESPONDENT 2ND ROAD DEVELOPMENT AGENCY 3RD RESPONDENT BEFORE THE HON. LADY JUSTICE P. C. M. NGULUBE IN CHAMBERS For the Applicant : Dr. 0. M. M. Banda, Messrs. O.M.M. Banda & Co. . . For the 1st Respondent Mr. M. Nalishuwa, Messrs. Mulenga V Mundashi Legal Practitioners . . For the 2nd Respondent In House Counsel RULING Cases referred to: 1. Sonny Paul M1.tlenga & Others vs TnvP.i:.tn1.c:;t Merchant Bank (1999) Z.R. 2. Stanley Mwambazi vs Morrester Farms Limited (1977) Z.R. 108 (SC) 3. Swyny vs Harland [1894/ lQB 707 4. Nkuwa vs Lusaka Tyre Services Limited (1977) Z.R. 43 5. Twampane Mining Co-operative Society vs E and M Storti Mining Limited - SCZ Judgment No. 20 of 2011 6. Nigerian Agricultural Co-operative Bank Ltd vs Ozoemelam (2016) LPELR 26051 (SC) 7. Nyampala Safaris Zambia Limited & Others vs Zambia Wildlife Authority & Others - SCZ/ 8/ 179/2003 8. Zambia Revenue Authority vs Post Newspaper Limited -Appeal No. 36 of 2016 9. JCN Holdings Limited & Others vs Development Bank of Zambia (2013) Z.R. 299 Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument Number 65 of 2016. l .O INTRODUCTION 1.1 This is a composite ruling on the applicant's summons for an order to extend time within which to appeal to this Court and for an order of stay of execution. The application is made pursuant to Order XIII Rule 3(l){a) and Order VII Rule 1(1) of the Court ofA ppeal Rules1 as well as Order 59 Rule 10(9)(b} of the Rules of the Supreme Court (White Book) 1999 Edition.2 1.2 The application is accompanied by an affidavit deposed by Besa Mfula, the applicant's Managing Director. He deposed that the lower Court rendered a Ruling dated 6th September, 2023 in which the application for stay of execution of the Ruling dated 14th January, 2022 was denied. 1.3 That in the said Ruling dated 6th September, 2021, which is subject of the intended appeal, the lower Court refused to grant leave to appeal. 1. 4 It was deposed that the background to this matter is that the 1st respondent commenced an action under cause number 2018/HPC/0216 against the 2nd and 3rd respondents claiming payment of the purchase price of Earth Moving Equipment in pursuance of the memorandum of understanding dated June 2015. That the applicant was joined to those proceedings on 17th September, 2020 after Judgment in favour of the 1st respondent herein and after the appeal was lodged to this Court by the 2nd respondent. That the appeal was however dismissed for want of prosecution. 1.5 It was deposed that following the dismissal of the appeal for want of prosecution by this Court, the applicant commenced a fresh action against the 1st respondent under cause number 2021/HPC/0308 for recovery of money or the Earth Moving Equipment which was alleged to have been dubiously and deceptively repossessed and sold to a third party. 1.6 It was deposed further that the respondent made an application 2nd to settle the judgment debt in installments in the initial action without the applicant's knowledge. That the said judgment sum is money supposedly owed to the applicant for road works. That the application for payment of the judgment sum in installments was done with the exclusion of the applicant. 1. 7 The deponent averred that the applicant was served with the Ruling on payment in installments dated 14th January, 2022 on 23rd February, 2022. He also deposed that the applicant joined the 2nd respondent to the new proceedings. That the issue 1n the new proceedings which is pending judgment relates to the 1st respondent's obligations in the Rental Master Agreement while the Ruling dated 14th January, 2022, which the applicant sought to be stayed, related to the balance on the said Rental Master Agreement. st That if the Ruling dated 14th January, 2022 is not stayed the 1 respondent will unjustly receive payments held by the 211d respondent on behalf of the applicant and that the applicant will suffer irreparable injury. 1.8 The deponent deposed that the applicant could not appeal within the stipulated time because the applicant's principal officers were out of jurisdiction. 1. 9 The applicant's advocates filed skeleton arguments in support of the application. 1.10 It was submitted that the applicant has satisfied the requirements that this Court ought to consider in exercising its discretion to stay the ruling of the lower Court and extend the time within which to appeal. That the application reveals special circumstances necessitating the grant of the stay of execution because the appeal would be rendered nugatory if the stay is not granted. 1.11 In making reference to the cases of Sonny Paul Mulenga & Others vs Investn.tst Merchant Bank,1 it was submitted that the principle enunciated in this case that a successful litigant should not be deprived of the fruits of the judgment, does not apply in this case because the appeal is still pending in this Court. 1.12 Reference was also made to the case of Stanley Mwambazi vs Morrester Farms Limited2 where the need for matters to be heard on merit was emphasized. Further, reference was made to Atkins Court Forms, 2nd Edition, Volume 5, 1992 Edition Page 75 where it is stated that the risk of an appellant suffering serious loss which cannot be compensated for in damages is a compelling reason to justify the grant of stay of execution. Counsel also referred the Court to the case of Swyny vs Harland3 where it was held that the Court has discretion as to the terms on which a stay may be granted. 1.13 The 1st respondent filed an affidavit in opposition deposed to by its Senior Financial Manager. He deposed that the lower Court, in its Ruling dated 23rd September, 2023, clearly stated that the proceedings under cause number 2021/HPC/0308 were not an appeal and had no potential to overturn its Ruling dated 14th January, 2022. 1. 14 It was deposed that the applicant had been joined to the 2nd respondent's appeal as appellant and just like the 2nd 2nd respondent who was the 1st appellant, the applicant as 2nd appellant failed to prosecute the appeal which was subsequently dismissed for want of prosecution. 1.15 IL wets deposed further that the issues raised by tht~ applir.::i.nt in the new proceedings are subject of litigation and have nothing to do with the present application because there is already a judgment in the proceedings subject of the intended appeal. 1. 16 It was also deposed that the applicant has not adduced evidence to show that its principal officers were out of jurisdiction and could have received instructions using electronic means. The deponent also deposed that the applicant has made the wrong application because they have applied to extend time \\ri.thin which to appeal without first having obtained leave to appeal which was denied by the lower Court. That in any event, the intended appeal has no prospects of success. 1. 1 7 The 1st respondent's advocates filed skeleton arguments in opposition to the application. 1.18 It was submitted that the applicant has not shown sufficient reasons for extension of time in accordance with 01·derXIII Rule 3(4) of the Court of Appeal Rules. To buttress this argument, reference was made to the cases of Nk.uwa vs Lusaka Tyre Services Limited4 and Twam.pane Mining Co-operative Society vs E and M Storti Mining Limited.s 1.19 Reference wus o.lso inn.de to the cases of Nigerian Agricultural Co operative Bank Ltd vs Ozoemelam,6 Nyampala Safaris Zambia Lim'ited & Others vs Zambia Wildlife Authority & Others7 and Zambia Revenue Authority vs Post Newspaper Limited,8 to buttress the argument that there should be sufficient grounds for granting a stay of execution. 1.20 That contrary to the applicant's argument, it has not met the requirements needed in making the application for leave because there is no such application before this Court. That the application which is before this Court is for extension of time within which to appeal. It was submitted that the applicant should have made the application for leave as opposed to the application which is before the Court. That therefore, the application for extension of time is improperly before this Court. It was argued that therefore this Court has no jurisdiction to entertain the application and it should be dismissed. To support this argument, I was referred to the case of JCN Holdings Limited & Others vs Development Bank of Zambia.9 1.21 This Court was urged to dismiss the application with costs. 1.22 In its affidavit in reply deposed by Besa Mfula, it was deposed that the applicant was not mad~ to the proceedings in which the Court delivered a Ruling dated 14th January, 2022 despite the fact that the appellant was the owner of the funds in question. 1.23 It was also deposed that if the Ruling that the applicant seeks to impugn was executed, it would render the proceedings under Cause Number 2021/HPC/0308 will be prejudiced. 1.24 That the application for extension of time within which to appeal was necessitated by the fact that the fourteen (14) days within which to lodge the appeal has expired. 2.0 MYVIEW 2.1 I have considered the affidavits in support and in opposition of the application to extend the time within which to appeal and for stay of execution. I have also considered the skeleton arguments and list of authorities filed by counsel. 2. 2 It is not in issue that the lower Court delivered a Ruling on 6th September, 2023 in which it refused leave to appeal to this Court. Order X Rule 4(1) and 4(5) of the Court of Appeal Rules guides as follows- "4(1) The High Court or a quasi-judicial body may grant or refuse leave to appeal to the Court without formal application at the time when judgment is given, and in that event the judgment shall record that leave has been granted or refused accordingly. 4(5) where leave to appeal is refused, an application for leave to appeal to the Court shall be made to a single Judge." 2.3 The provision above indicates that once the High Court refuses leave to appeal, the application for leave ought to be made before the single Judge of this Court. 2 .4 The application before me is for extension of time within which to appeal. In view of the above provision, the applicant ought to have brought an application for leave to appeal to this Court. If the applicant was out of time in bringing the application for leave to appeal, the appropriate application should have been to obtain leave to file the application out of time or apply for extension of time within which to make the application for leave to appeal. 2. 5 The application for extension of time is separate from an application for leave to appeal because the grant of leave to appeal effectively confers jurisdiction upon an appellate Court to hear the appeal or deal with all applications brought before it. Therefore, the grant of lc:ave is a prerequisite and the applicant ought to have either obtained leave to appeal or to apply for extension of time within which to make the application for leave to appeal. 2.6 The application before me is for extension of time within which to appeal to this Court. In requesting this Court to extend the time within which to appeal, the implication is that the applicant already has leave to appeal. The proper procedure is that time can only be extended once the applicant has leave to appeal. In the absence of leave, the question would be as to what time the applicant is extending because they do not have leave to appeal. 2.7 It is my considered view that in the absence of leave, this Court has no jurisdiction to entertain this application. As guided by the Supreme Court of Zambia in the case of JCN Holdings & Others vs Development Bank of Zambia (supra), it is trite law that if a matter is not properly before a Court, that Court has no jurisdiction to make any orders or grant any remedies. 2.8 Therefore, the application is accordingly dismissed with Costs to the respondents. Dated this 13th day of May, 2024. HONOURABLE MRS JUSTICE P.C.M. NGULUBE COURT OF APPEAL JUDGE