Astro Holdings Ltd and Ors v Hamuwele (Sued as receiver of Couryard Hotel in receivership) and Ors (SCZ 8 26 of 2021) [2021] ZMSC 154 (24 December 2021)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: SCZ/8/26/2021 ASTRO HOLDINGS LIMITED\>^^ SANMUKH R. PATEL 1st APPLICANT 2nd APPLICANT FURNITURE HOLDINGS T/A OFFICE WORLD 3rd APPLICANT RONAC SUPPLIES LIMITED 4‘h APPLICANT AND EDGAR HAMUWELE (SUED AS RECEIVER OF COURTYARD HOTEL IN RECEIVERSHIP) 1st RESPONDENT CHRISTOPHER MULENGA (SUED AS RECEIVER OF COURTYARD HOTEL IN RECEIVERSHIP) 2nd RESPONDENT AYUB MULLA (SUED AS BORROWER AND GUARANTOR) 3rd RESPONDENT GAZELLE LIMITED (SUED AS GUARANTOR) 4th RESPONDENT SKYWAYS TRUCK INN LIMITED (SUED AS GUARANTOR) 5th REPSONDENT ZABUNISSA ISMAIL (SUED AS GUARANTOR) 6th RESPONDENT Coram: Kajimanga, JS in Chambers on 25th November 2021 and 24th December 2021 FOR THE APPLICANTS: Ms. J. R. Mutemi of Mesdames Theotis Mutemi Legal Practitioners and Mr. K. Sianga of Messrs Paul Norah Advocates FOR THE l«t & 2nd RESPONDENTS: Mr. L. Mwamba of Messrs Simeza Sangwa and Associates FOR THE 3rd to 6* RESPONDENTS: Mr. M. Bah of Messrs NCO R2 Advocates RULING Cases referred to: 1. Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 Others (2014) eKLR, Civil Appeal (Application) 228 of 2013 2. Boy Juma Boy and 2 others v Mwamlole Tchappu Mbwana and Another (2014) eKLR, Civil Appeal (Application) 45 of 2013 3. John Mugala and Kenneth Kabenga v Attorney General (1998-1999) Z. R. 171 4. Aristogerasimos Vangelatos and Vasiliki Vangelatos v Metro Investments Limited and 3 Others, Selected Judgment No. 35 of 2016 5. Nairobi City Council v Resley [2002] EA 493 6. Sonny Paul Mulenga and 3 Others v Investrust Bank Limited (1999) Z. R. 101 7. Carmine and Watson Nkandu Bowa (sued as Administrator of the Estate of Ruth Bowa) v Fred Mubiana and ZESCO Limited) (2012) 3 Z. R. 165 8. Zambia Revenue Authority v the Post Newspaper Limited, SCZ Judgment No. 18 of 2016 9. Bidvest Foods and Others v CAA Import and Export Limited, Appeal No.56 of 2017 10. Hassan v Transport Workers Union and Others [2007] 3 LRC 35 11. Zlatan Zlatco Arnautovic v Stanbic Bank Zambia, SCZ/ 08/14/2020 12. Road Transport and Safety Agency v First National Bank Zambia Limited & Another - Appeal No. 127 of 2016 13. Gerrison Zulu v ZESCO (2005) Z. R. 39 14. Glancare Teorada v A. N. Board Pleanala (2006) FEHC 250 15. Savenda Management Services v Stanbic Bank Zambia Limited, SCZ Judgment No. 18 of 2016 16. Nahar Investments v Grindlays Bank International (Zambia) Limited. (1984) Z. R. 81 17. Minister of Home Affairs, the Attorney General v Lee Habasonda (suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes) (2007) Z. R. 207 R3 18. Zambia Telecommunications Company Limited (ZAMTEL Ltd) v Aaron Mweenge Mulwanda and Paul Ngandwe, SCZ/ 8/ 6/2009 19. Leonard Kanyanda v Ital Terrazo Limited, Appeal No. 125 of 2016 Legislation referred to: 1. Supreme Court Act, Chapter 25 of the Laws of Zambia: Section 4 and Rules 12, 48(1), 50 and 51. 2. Supreme Court (Amendment) Act No. 24 of 2016, section 24(b) 3. Court of Appeal Act No. 7 of 2016; Sections 13, 24(1) and Order 11 4. Legal Practitioners Act, Chapter 30 of the Laws of Zambia; Sections 52(b) and 53 5. Legal Practitioners Practice Rules, S. I No.51 of 2002: Rules 3(2)(f) and 32(1) & (2) and 41 Introduction [1] On 17th November 2021, the applicants filed an ex parte application for an order to stay of execution of the Court of the Appeal’s judgment dated 12th July 2021 pending the hearing and determination of their application for leave to appeal filed into court on 26th October 2021. On 18th November 2021, I granted the applicants an ex parte order to that effect returnable inter partes on 25th November 2021, on which day both applications were heard. This is a ruling in respect of these two applications. Affidavit evidence of the parties R4 [2] The two applications were supported by affidavits sworn by one Sanmukh R. Patel, the 2nd applicant and executive chairman of the 1st applicant company. He deposed that on 12th May 2021, the High Court delivered a judgment dismissing the applicants’ claims for: i. Payment of all monies due under equitable mortgages relating to the properties; ii. Delivery up and possession of these properties; iii. Foreclosure of the mortgaged properties; iv. An order for sale of the mortgaged properties; v. An order that the 3rd, 4th, 5th and 6th respondents being guarantors of Courtyard Hotel Zambia Limited (the company) be ordered to honour their guarantees in the event of the respondent failing to settle its indebtedness in full to the applicants; vi. Interest on all amounts found owing. [3] The High Court judgment further dismissed in entirety the respondents’ counterclaims for the following reliefs: i. An order for the court to determine how much the respondents owed the applicants because no invoices had been issued and the respondent had no way of verifying how much was owed; RS ii. An order that once the amount loaned to the respondent is determined, it must be subtracted from the US$6,500,000.00 already paid to the applicants and the balance repaid to the respondents; iii. That all securities be returned to the respondents because the amount owed to the applicants has been paid in full; iv. That the applicants pay the respondents damages for breach of contract; v. An order that the 3rd and 4th applicants issue invoices for all the materials supplied so that the company can claim VAT refunds; vi. That the applicants repay the company the money lost as a result of them refusing to rely on its investment license to import goods, thereby denying it benefit of tax rebates. [4] An appeal was then lodged by the applicants against the High Court judgment before the Court of Appeal. However, the respondents did not file any cross-appeal challenging the refusal by the High Court to order the return of the securities. By a judgment dated 12th July 2012, the Court of Appeal dismissed 5 out of 7 grounds of appeal advanced before it, resulting in the failure of the appeal which was dismissed with costs. Being dissatisfied with this judgment, the applicants made an application before the Court of Appeal for leave to appeal to this R6 Court, which application was declined on the ground that it did not raise any point of law of public importance. The applicants then renewed the application before this Court for leave to appeal. [5] The 2nd applicant deposed that contrary to the ruling of the Court of Appeal, the application for leave to appeal has merit and good prospects of being granted as the intended appeal actually raises a point(s) of public importance as demonstrated under the grounds of appeal set out in the memorandum of appeal. Specifically, it questions the jurisdiction of the Court of Appeal to determine an issue not pleaded, which is a matter of public importance in accordance with precedent on this subject. [6] According to the 2nd applicant, the Court of Appeal in its judgment, volunteered the respondents with a relief that was neither appealed nor cross-appealed against, when it ordered that the applicants return the certificates of title over which equitable mortgages were created. That the intended appeal will also accord this court an opportunity to pronounce itself upon R7 the circumstances in which the powers of the Court of Appeal under section 24(1) of the Court of Appeal Act can be exercised. [7] The 2nd applicant further deposed that it is also a matter of public importance for this court to determine whether a judgment of an appellate court is exempt from the guidance which it has previously given to lower courts on the manner of writing judgments. Additionally, that the judgments of both the High court and the Court of Appeal promote unjust enrichment since the respondents did not dispute their indebtedness to the applicants but simply sought an order from the High Court to determine how much they were owing because they had no way of verifying the amounts. Moreover, the discrepancies which the Court of Appeal found and based its decision on were ones that could have easily been resolved by an account through referring the matter to the High Court for assessment of the sums due. [8] The 1st and 2nd respondents did not file any affidavit in opposition to the two applications made by the applicant. [9] The 3rd to 6th respondents, on the other hand, only filed an affidavit in opposition to the application for leave to appeal which R8 was sworn by the 3rd respondent who serves as managing director of the 4th and 5th respondents. The affidavit disclosed that the applicants’ application is based on a false assumption that their appeal has reasonable prospects of success. However, the applicants’ application has no reasonable chances of succeeding as the appeal does not raise points of law of public importance and the application is merely an attempt to prevent the respondents form enjoying the fruits of the judgment. The 3rd respondent deposed that the Court of Appeal did not exceed its jurisdiction when it pronounced itself on the fate of the securities as it is within its limit to vary judgments of the lower court brought before it and the certificates of title are peculiar to the case. [10] Further, that the proposed grounds of appeal do not raise questions of law pertaining to the exercise or interpretation of the power of the Court of Appeal under section 24 of the Court of Appeal Act as the same is literally clear. In addition, the court below was on firm ground when it discounted the applicants’ claims of indebtedness by the respondents without the production of actual evidence. Consequently, the applicants’ R9 application has no reasonable chances of success as the applicants have not given compelling reasons that meet the threshold to grant them leave to appeal to this court. Arguments relating to stay of execution [11] Counsel for the applicants, Ms. Mutemi, filed skeleton arguments for each of the two applications. On the application for stay, she submitted that in the absence of a stay of execution of the Court of Appeal judgment, the application for leave to appeal and the intended appeal will be rendered nugatory and a mere academic exercise as the respondents have already commenced an action against the applicant in order to enforce the judgment of the Court of Appeal sought to be stayed. [12] She argued that the application for stay is highly meritorious with a very good prospect of success as the matter transcends beyond the parties and fits within the criteria demanded by the law relating to leave to appeal. Additionally, the intended grounds of appeal exhibited in the affidavit in support of the application reveal that the Court of Appeal exceeded its jurisdiction by determining an issue and granting a relief which RIO was not contained in the memorandum of appeal, namely: the return of title deeds. Further, the High Court judgment did not grant the respondents relief for return of securities, and neither was this issue appealed or cross-appealed against by the respondents. [13] She therefore, contended that the Court of Appeal had no jurisdiction to deal with the issue for which it graciously volunteered relief by ordering the return of securities to the respondents. Relying on the Kenyan cases of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 Others1 and Boy Juma Boy and 2 others v Mwamlole Tchappu Mbwana and Another2, counsel submitted that it is the filing of a notice of appeal against a particular decision impugned that gives the court jurisdiction. Thus, in the absence of a notice of appeal by the respondents against the judgment of the High Court meant that the Court of Appeal, as an appellate court, did not have any jurisdiction to deal with the return of the securities. To buttress this point, Ms. Mutemi cited Rll the case of John Mugala and Kenneth Kabenga v Attorney General3 where it was held that: “It is most undesirable for a trial judge to volunteer a ruling especially without affording the parties advance notice of what the judge has in mind and giving them the opportunity to address him. The better practice is to make a ruling only when the defence make a submission and even then, the judge should be slow to take a decision on the evidence before he has heard it.” [14] Accordingly, it was her submission that the application for leave to appeal has prospects of success because of the obligation placed on an appellate court to entertain a plea as to jurisdiction at any stage. In this regard, the court was referred to the learned authors of Halsbury’s Laws of England 4th Edition, Volume 10 at paragraph 717 who state that: “It is the duty of the appellate court to entertain a plea as to jurisdiction at any stage, even if the plea was not raised in the court below. ” [15] This position, according to counsel, was confirmed by the Supreme Court in the case of Aristogerasimos Vangelatos and Vasiliki Vangelatos v Metro Investments Limited and 3 Others4 where it was held as follows: “This authority places an obligation on us to allow a plea of want of R12 jurisdiction even where, as is in this case, this issue was not raised in the court below. The rationale for this lies in the court exercising a jurisdiction which it does not possess. Halsbury's at paragraph 715 states, in this regard, that where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. ” [16] It was counsel’s further contention that the intended grounds of appeal also raise questions of law pertaining to the exercise of the Court of Appeal’s power under section 24 of the Court of Appeal Act which is a matter of utmost public importance and interest that the Supreme Court should pronounce itself on. She also argued that the respondent having already commenced the process of enforcing the Court of Appeal judgment shows that if this application is declined, the applicants’ pending application for leave to appeal and the consequent appeal intended to be brought will be rendered academic. Thus, this is a fit and proper case for this court to grant a stay of execution of the Court of Appeal judgment. [17] In response, Mr. Mwamba submitted on behalf of the 1st and 2nd respondents, that a stay of execution can only be granted or applied for after leave to appeal is granted as it is only then that there will be a pending appeal to warrant the grant of a stay of R13 execution. This position, in his contention, is supported by Section 13(4) of the Court of Appeal Act which provides that: “Leave to appeal shall not operate as a stay of execution of judgment.” [18] He argued that what triggers the exercise of the authority to grant a stay of execution of judgment under section 13(4) is the leave to appeal. Thus, at the time of making the application for stay of execution, leave to appeal to the Supreme Court should have been granted and a notice of appeal and memorandum of appeal should have been filed in the Supreme Court. Relying on the Kenyan case of Nairobi City Council v Resley5, he submitted that without such leave, the court would be in no position to review the prospects of success of the pending appeal because there is no appeal. [19] Mr. Mwamba also contended that the application for stay of execution of judgment ought to still fail because the application for leave to appeal has no prospects of success. That in determining this application, the court ought to preview the prospects of success of the application for leave to appeal in accordance with the guidance of the Supreme Court in Sonny R14 Paul Mulenga and 3 Others v Investrust Bank Limited6, Carmine and Watson Nkandu Bowa (sued as Administrator of the Estate of Ruth Bowa) v Fred Mubiana and ZESCO Limited)7 and Zambia Revenue Authority v the Post Newspaper Limited8. Counsel submitted that the considerations, as set out in those cases, are prospects of success and irreparable harm. [20] He argued that the application for leave to appeal has no prospects of success as the proposed grounds of appeal have not raised any point of law of public importance and are devoid of any prospects of success. As to the issue of whether the applicant will suffer irreparable harm if the judgment is not stayed, it was argued that the only order that is stayable is the order that the appellants immediately return the certificates of title to the respondent. However, in the unlikely event that leave was granted and the appeal was successful, the applicants can simply get back the certificates of title, no injury or irreparable harm will be suffered by the appellants by returning the certificate of title. Consequently, this is not a fit and proper case to grant an order for stay of execution of judgment. R15 [21] No skeleton arguments were filed on behalf of the 3rd to 6th respondents in respect of the application for stay. Arguments relating to the application for leave to appeal [22] Concerning the application for leave to appeal, Ms. Mutemi submitted that the first ground of the applicant’s intended appeal, which relates to the Court of Appeal exceeding its jurisdiction by granting the respondents a relief that was not pleaded or contained in the grounds of appeal nor cross­ appealed against, raises a point of law of public importance and compelling reasons for the appeal to be heard. Relying on the cases of Bidvest Foods Zambia Limited &> 4 others v CAA-Import and Export Limited9 and Hassan v Transport Workers Union and Others10’ she argued 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 has to be considered on a case by case basis. [23] It was her contention that the intended appeal raises an issue of jurisdiction which was held to be matter of public importance R16 in the case of Zlatan Zlatco Arnautovic v Stanbic Bank Zambia11. Thus, a determination by this court on whether or not the Court of Appeal erred in granting a relief on appeal which was neither pleaded in the grounds of appeal or cross-appealed against, which relief was granted without according the parties an opportunity to address the court on the same, is something that will be beneficial for the public at large and our jurisprudence. [24] It was submitted that in one breath, the Court of Appeal refused to entertain an issue which was not contained in the grounds of appeal, whilst in another, the Court on its own motion, raised and determined an issue that was not contained in the grounds of appeal. However, it is clear from the cases of Road Transport and Safety Agency v First National Bank Zambia Limited & Another12 and Gerrison Zulu v ZESCO13 that the only issues which a court can raise on its own motion without inviting submissions from the parties is that of jurisdiction and that of conditions precedent. In the premises, she contended, the applicant’s appeal raises an important question of the Court of Appeal’s jurisdiction, which requires determination by this R17 Court. [25] Ms. Mutemi also argued that the proposed questions for determination before this court raise novel issues in our jurisdiction which have ramifications for procedural law and transcend the current case and hence, the Supreme Court ought to determine them. It was her contention that the fact that the proposed first ground of appeal raises issues of jurisdiction and that the decision of the Court of Appeal was contrary to case law in itself demonstrates reasonable prospects of success. [26] Regarding the proposed second ground of appeal, she argued that the appeal has reasonable prospects of success and is also a matter of public importance for the Supreme Court to determine whether a judgment of an appellate court is exempt from the guidance which it has previously given to lower courts on the manner of writing judgments. Further, that the proposed grounds 3 and 4 raise questions of law pertaining to the exercise of the court’s power under section 24 of the Court of Appeal Act and that it is imperative and a matter of public importance that R18 the Supreme Court pronounces itself on the circumstances under which the powers conferred by section 24 can be exercised. She therefore, submitted that this is a proper case for the court to exercise its discretion in granting leave to appeal. [27] In response, Mr. Mwamba submitted on behalf of the 1st and 2nd respondents, that the intended appeal has not met the requirements for grant of leave to appeal to the Supreme Court as the proposed grounds of appeal do not raise any point of law of public importance. The gist of the proposed first ground of appeal, according to counsel, is that the Court of Appeal had no jurisdiction to order a return of the certificates of title to the respondents, which issue is peculiar to the circumstances of this case. He argued that the issue of jurisdiction and whether or not the court can grant a relief not prayed for and in what circumstances this can be done has been settled by this court in various cases, some of which have been relied upon by the applicants. [28] Relying on the case of Glancare Teorada vA. N. Board Pleanala14 counsel contended that there is no uncertainty in the issues raised in the said ground and the ground does not raise any R19 point of law of public importance as there is nothing in it that transcends the interests of the parties to the appeal. That even assuming it did, the ground cannot be the basis for granting leave to appeal on all grounds as each ground is separate and distinct and must raise a point of law of public importance on its own. [29] Mr. Mwamba, however, submitted that a review of grounds 2 to 4 of the proposed appeal shows that no points of law of public importance have been raised in these grounds. That ground 2 is an unfair criticism of the Court of Appeal’s judgment that there was no legal reasoning whereas grounds 3 and 4 are an appeal against findings of fact which obviously means that they are specific to the circumstances of this case. Thus, there is no discernable public interest or concern in these grounds of appeal. [30] He also contended that the intended appeal has no prospects of success in that the argument raised in ground 1 that the court had no mandate to make an order for the return of the certificate of title is not meritorious as it flies in the teeth of R20 section 24(1)(a) of the Court of Appeal Act which grants the Court of Appeal power on appeal to vary the judgment of the lower court or give such judgment as the case may require. In this case, having found that the appellants had failed to prove their claims, the natural attendant order is for return of the certificates of title to the owner. Consequently, the order made by the court is what the appeal required and cannot therefore be faulted. In any case, the appellants were holding onto the titles on the basis of the claims that were dismissed by the High Court and subsequently by the Court of Appeal. Thus, even if the Court of Appeal did not make the order for the return of the certificates of title, the respondents were still obliged to demand for their return. [31] Counsel also argued that a perusal of ground 2, which raises unfair criticism against the judgment of the Court of Appeal, shows that the court gave reasons for each conclusion reached. Further, that the argument in grounds 3 and 4 that the money allegedly owed by the respondents was not disputed is erroneous as the respondents did in fact refute the claims; that R21 it was up to the applicants to prove their claims, but they lamentably failed to do so. It was therefore, his contention that the intended appeal had no prospect of success and that the application for leave to appeal should be dismissed. [32] On behalf of the 3rd to 6th respondents, Mr. Bah submitted that the core issue for determination before this court is whether the court below was on firm ground when it decided that the applicants failed to prove their case in meeting the threshold to grant the requisite leave to appeal to this court. According to counsel, unless a party meets this threshold as set out in section 13(3) of the Court of Appeal Rules, leave to appeal to the Supreme cannot be granted. In aid of this argument, counsel cited the Savenda Management Service v Stanbic Bank Zambia Limited15 case where this court guided as follows: “The permissible grounds for the grant of leave to appeal in civil matters are set out in section 13(3) (a) (b) (c) (d)... The rationale for the foregoing is an acknowledgement of the fact that the resources of the courts are over stretched and if it were otherwise, the doors of justice would be open to busy bodies 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 a litigant who has moved the Court of Appeal and met the threshold set out in section 13(3).” R22 [33] Mr. Bah argued that having failed to meet the threshold as guided in the foregoing case, the applicants are merely attempting to delay the respondents from getting their certificates of title back. He relied on the case of Nahar Investments v Grindlays Bank International (Zambia) Limited16 where it was held that: ‘Litigation must come to an end, it is highly undesirable that respondents should be kept in suspense because of dilatory conduct on the part of the appellants.” [34] Counsel highlighted that the applicants’ appeal rests on whether the court below exceeded its jurisdiction when it ordered the applicants to return the securities to the respondents. It was his contention that although a plethora of authorities have been cited by the applicants in an attempt to show that the court had no jurisdiction to pronounce itself on the securities held by them, the applicants have neglected to address the question as to whether the court has the power to vary judgments and the source of this power. [35] He submitted that the source of jurisdiction of the Court of R23 Appeal is section 24(1) of the Court of Appeal Act. Under that section, the court has broad powers in dealing with appeals which it can exercise in any appeal. That the jurisdiction of the court extends not only to confirming or dismissing appeals before it but also to amending and varying judgments. As such, the applicants’ argument that the court exceeded its jurisdiction is not cogent and drastically reduced the chances of the appeal succeeding. Furthermore, it is not a compelling reason for the appeal to be heard or to grant the applicant leave to be heard. Mr. Bah also contended that the issue of jurisdiction revolves around the return of the certificates of title which is peculiar to the circumstances of this case and does not raise a point of law of public importance. That since the applicants failed to prove their case, it naturally follows that the certificates of title should be returned to the respondents. [36] He went on to argue that the judgment subject of the appeal does not fall short of the prescribed requirements of a judgment as guided by the cases of Minister of Home Affairs, the Attorney R24 General v Lee Habasonda (suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of Disputes)17 and Zambia Telecommunications Company Limited (ZAMTEL Ltd) v Aaron Mweenge Mulwanda and Paul Ng’andwe18 where the Supreme Court gave guidelines on judgment writing. It was counsel’s contention that the court below made a review of the evidence before it and summarised the arguments and made a finding of fact, disclosed the reasoning, and applied the law of the case and thereafter, drew a conclusion. Therefore, there are no reasonable prospects of success on appeal, and this is also not a matter of public importance for the Supreme Court to determine. [37] Further, grounds 3 and 4 of the proposed appeal do not raise questions of law pertaining to the exercise of interpretation of this court’s power under section 24 of the Court of Appeal Act, as the same is literally clear and it is therefore not imperative that the Supreme Court should pronounce itself on the circumstances under which the powers conferred under section 24 of the Act can be exercised. The issue, according to counsel, R25 is not a matter of public importance and the applicants have lamentably failed to satisfy this court that it is. Counsel concluded that the application lacks merit and urged the court to dismiss it with costs. [38] At the hearing of the application, counsel for the respective parties made oral submissions which were in the main, a repetition of the affidavit evidence and skeleton arguments. For that reason, it is otiose to reproduce them. Determination and decision of the Court [39] I have considered the affidavit evidence of the parties as well as the skeleton arguments and oral submissions of counsel on both sides in respect of the two applications. I shall begin by dealing with the application for leave to appeal. This application is made pursuant to the provisions of section 24(b) of the Supreme Court (Amendment) Act No. 24 of 2016 and rule 48(1) of the Supreme Court Rules as read with section 13 of the Court of Appeal Act and order 11 of the Court of Appeal of Zambia Rules. [40] Section 24(b) of the Supreme Court (Amendment) Act reads as R26 follows: “An appeal shall not lie— (a) ............................................. (b) from a judgment given by the Court of Appeal without the leave of that court or, if that has been refused, without the leave of a judge of the Court; This is consistent with Order 11 of the Court of Appeal Rules which states that: “1. (1) An appeal from a judgment of the Court shall be made to the Supreme Court with leave of the Court. (2) ....... (3) ....... (4) Where leave to appeal is refused by the Court, an application for leave to appeal may be made to Supreme Court... ” Further, section 13 of the Court of Appeal Act provides that: “(1) An appeal from a judgment of the Court shall lie to the Supreme Court with leave of the Court (2) An application for leave to appeal, under subsection (1), shall be made within fourteen days of the judgement... ” (Emphasis added) And rule 48(1) of the Supreme Court Rules enacts as follows: 'Applications to a single judge shall be made by motion or summons within fourteen days of the decision complained of which shall state the grounds R27 of the application, and shall if necessary be supported by affidavits. The proceedings and other documents relating thereto shall be filed in duplicate. ” [Emphasis added] [41] It is plain from the foregoing provisions that any application made to a single judge of the Supreme Court for leave to appeal to that Court against the decision of the Court of Appeal is required to be brought within fourteen days of the decision complained of. Notwithstanding this requirement, a party may apply to the court before the expiry of the stated period for the extension of time within which an application for leave to appeal can be filed. Leave may also be obtained by a party to file the application out of time, where the prescribed period has lapsed. This is provided for under rule 12 of the Supreme Court Rules which states thus: “(1) The Court shall have power for sufficient reason to extend time for making any application, including an application for leave to appeal, or for bringing any appeal, or for taking any step in or in connection with any appeal, notwithstanding that the time limited therefor may have expired, and whether the time limited for such purpose was so limited by the order of the Court or by these Rules, or by any written law. (2) An application to the Court for an extension of time in relation to a judgment or the date of expiration of the time within which the R28 application ought to have been made shall be filed at the registry within twenty-one days of the judgment or such time within which the application ought to have been made unless leave of the Court is obtained to file the application out of time...” [42] In the present case, the affidavit evidence before me indicates that the applicants had applied to the Court of Appeal for leave to appeal to this court which was denied by way of a ruling dated 11th October 2021 and this prompted the applicants to renew the application before this court on 26th October 2021. Going by these dates, the filing of the application for leave to appeal before this court was made fifteen days after the decision of the Court of Appeal complained of. This, quite clearly, is beyond the fourteen-day time limit set out under rule 48(1) of the Supreme Court Rules. Relevantly, this court held in the case of Leonard Kanyanda v Ital Terrazo Limited19 that: “Rule 48(1) is couched in mandatory terms in relation to the period within which to make an application to a single judge, that is, within fourteen days of the decision complained of It is no longer open ended as it was before the amendment of 2012.” [43] I note, however, that while the copy of the Court of Appeal’s ruling exhibited as “SRP6” in the applicants’ affidavit in support R29 of the application for leave bears a court registry date stamp of 11th October 2021, it also indicates the date on which the application before the lower court was heard as well as the date on which the ruling was actually delivered by the court. In this case, the date appearing on exhibit “SRP6” as the date of delivery of the ruling is 14th October 2021 which is at variance with the date appearing on the court registry date stamp as a date stamp cannot in reality be affixed to a court ruling by the registry before that ruling has been delivered by the court. [44] This anomaly prompted this court to call for and examine the lower court’s original ruling and take judicial notice of its contents. Having reviewed the document, I am satisfied that the ruling in question was actually delivered on 4th October 2021 and not 14th October 2021 as indicated on exhibit “SRP6” produced by the applicants. This effectively means that the applicants are yet again caught up by the time-limit in rule 48(1). It also implies that the date of delivery appearing on the ruling of the Court of Appeal exhibited by the applicants is a false date. R30 [45] Interestingly, if this court were to rely on this false date of 14th October 2021, the filing of the application for leave to appeal by the applicants on 26th October 2021 would have been within the fourteen-day time limit set out in rule 48(1). Unfortunately for the applicants, this court must follow the dates appearing on the original ruling of the Court of Appeal. Based on those dates, the stipulated period for obtaining leave to appeal to this court had lapsed at the time applicants filed their application for leave to appeal. [46] In my view, the only reasonable inference that can be drawn from the foregoing is that the date of delivery appearing on the ruling exhibited by the applicants was deliberately altered by the insertion of “1” in pen, before “4th” October 2021 and that such alteration was meant to mislead the court into granting the order being sought in this application. As I see it, counsel for the applicants was aware or ought to have known about the alteration in question and that the same would have the effect of misleading the court into granting an order she knew to be wrong and improper. This conduct by the applicants' counsel, R31 in my view, is in violation of Section 52(b) of the Legal Practitioners Act Chapter 30 of the Laws of Zambia which states as follows: “No practitioner shall mislead or allow any court to be misled, so that such court makes an order which such practitioner knows to be wrong or improper”. [47] It also contravenes rules 3(2)(f) and 32(1) and (2) of the Legal Practitioners’ Practice Rules 2002. Rule 3(2)(f) provides that: “A practitioner shall not do anything in the course of practice or permit another person to do anything on the practitioner’s behalf, which compromises or impairs or is likely to compromise or impair any of the following:...... (f) the practitioner’s duty to the Court. ” Rule 32(1) and (2) of the said Rules, on the other hand, states that: “(1) A practitioner shall not- (a) engage in conduct whether in pursuit of the profession or otherwise which is: (i) dishonest or otherwise discreditable to a practitioner; (ii) prejudicial to the administration of justice; or (Hi) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute; or (b) ..... R32 (2) A practitioner has a duty to the Court to ensure that the proper and efficient administration of justice is achieved. ” Rule 41 of the said Rules goes on to provide that: “Non-compliance, failure, evasion or disregard of these rules without reasonable cause shall constitute pro fessional misconduct or conduct unbefitting a practitioner in terms of section 53(H) of the Act.” [Emphasis added] And section 53 of the Legal Practitioners Act reads as follows: “A practitioner who contravenes any of the provisions of section 52 of the Act shall be deemed to be guilty of professional misconduct, and the Court may, in its discretion, either admonish such practitioner, or suspend him from practice, or cause his name to be struck off the Roll pursuant to section 28. ” [Emphasis added] [48] Having found that the applicants’ counsel, Ms Mutemi to be specific, contravened the provisions of the Legal Practitioners Practice Rules and section 52 of the Legal Practitioners Act in this matter, it is my considered view that this is a proper case to be referred to the Legal Practitioners Committee of the Law Association of Zambia for further investigation into the conduct of the applicants’ counsel, to determine whether her conduct amounted to professional misconduct and if so, to impose the appropriate sanctions. In this respect, I hereby direct and order R33 that a copy of this ruling, the ruling of the Court of Appeal and the applicant’s application for leave to appeal be forwarded to the Legal Practitoners Committee of the Law Association of Zambia for necessary action. [49] Turning back to the application before me, I find that since the applicants were outside the stipulated period for obtaining the requisite leave to appeal, the procedure that ought to have been adopted by them in this matter is to apply for leave to appeal out of time. The applicants, however, failed to take any such action contrary to the mandatory requirements of rule 12 of the Supreme Court Rules. Time without number, this court has emphasized the need for parties to comply with court rules and with a warning that failure to do so could be fatal to their case. [50] In the present case, I find that the failure by the applicants to comply with rules 12 and 48(1) of the Supreme Court Rules in the present case is fatal to their application for leave to appeal. The application is therefore, incompetent and I accordingly dismiss it. In any event, the application would have failed on the merits. R34 [51] The upshot of this conclusion is that applicants’ application for stay of execution is also dismissed and the ex parte order of stay I granted on 16th July 2019 stands discharged forthwith. Costs shall follow the event and to be taxed in default of agreement. SUPREME COURT JUDGE