Eastern and Southern African Trade and Development Bank v Antonio Ventriglia and Ors (APP NO. 12/2024) [2024] ZMCA 115 (29 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) APP NO. 12/2024 BETWEEN: EASTERN AND SOUTHERN AFRICAN TRADE AND DEVELOPMENT BANK APPELLANT ANTONIO VENTRIGLIA MANUELA VENTRIGLIA ZAMBEZI PORTLAND CEMENT LIMITED ROBERT MBONANI SIMEZA (In his capacity as receiver of Zambezi Portland Cement Limited (In receivership) AND 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT ATTORNEY GENERAL INTENDED INTERVENOR Coram: Chashi, Makungu and Sichinga, JJA On the 4 th day of April, 2024 and on the 29th day of May, 2024 For the Appellant: Mr. C. P. Chuula and Mr. C. J. Mumba both of Messrs Chibesakunda & Co. For the Jst, 2 nd and 3 rd Respondents: Mr. A. Siwila, Mr. S. Mambwe both of Messrs Mambwe and Siwila Advocates, Mr. C. Sianondo of Malambo & Co and / Mr. K. Khanda of Messrs of Central Chambers For the 4th respondent: No appearance For the Attorney General: Mr. M. Muchende SC, Solicitor General with Miss N. K Chango, Principal State Advocate RULING Makungu JA, delivered the ruling of the Court. Cases referred to: 1. Antonio Ventriglia and Manuela Ventriglia v. The Eastern and Southern African Trade and Development Bank, SCZ No. 13 of 2010. 2. Hope Foundation for Women and Children v. Munalula Linyati, SCZ Appeal No. 70 of 2015 3. Adams v. Adams (1970) 3 All ER 572 4. The Arantzazu Mendi (1939) 1 All ER 719 5. R v. Inland Revenue Commissioners, Ex Parte National Federation of Self Employed & Small Business Limited (1982) AC 617 6. Abel Mulenga and Others v. Chikumbi and Others (2006) ZR 33 7. Suhayl Dudhia v. Samir Karia and Citi Bank Zambia Limited SCZ Appeal No. 107 of 2015. 8. Christine Lwali, Saviour Chishimba Stephen Mubanga & 26 Others v. Edward Mumbi sued as Secretary General of the Patriotic Front party, Michael Chilufya Sata & the Attorney General as intervenor SCZ No. 7 of 9. Knox Magugu Mbazima v. Tobacco Association of Zambia, SCZ Appeal No. 8 of 2021 10. Sachar Narendra Kumar v. Joseph Brown Mutale, SCZ Judgment No. 8/2013 11. Zambia Seed Company Limited v. Chartered International (Pvt) Limited, SCZ Judgment No. 20/ 1999, SCZAppeal No. 121/ 1998 12. John Mukoma Kasanga and Others v. Development Bank of Zambia and Others, CAZAppeal No. 59/2020 and 94/2019 Legislation referred to: 1. The Constitution of Zambia, Chapter 1 of the Laws of Zambia. 2. The Rules of the Supreme Court of England, 1999 Edition (White Book) 3. Court of Appeal Rules, S. I No. 65 of 2016 4. Court of Appeal Act, No. 7 of 2017 1.0 INTRODUCTION 1.1 Before us is a notice of motion for an order for joinder of the Attorney General to appeal No. 115 of 2022 as Amicus Curiae pursuant to Order 15 Rule 6 (2) (b) of the Rules of the Supreme -R2- Court, 1965, 1999, edition, (RSC) and the court's inherent jurisdiction. A similar application was made before a single Judge of this Court who dismissed it on 26th January, 2024. 2.0 BACKGROUND 2.1 The background of the matter is that the plaintiffs who are now 1st , 2nd, and 3rd respondents commenced an action by way of a writ of summons and statement of claim on 23rd March, 2021 (2021/HP/0195) against the appellant as 1st defendant and the 4 th respondent as 2nd defendant claiming the following reliefs: 1. An order that the consent order entered into between the 3rd plaintiff (Zambezi Portland Limited), the 1st and 2nct defendants under Cause No. 2008/HN/268 and 2013/HP/21 dated 16 th April 2014, be set aside on the ground that it was entered into by mistake and/ or misrepresentation. 2. Damages arising from the entry of the Consent Order. 3. Interest on the amount due. 4. Other relief the court may deem fit. 2.2 The appellant applied to have the action set aside but the application was dismissed by M. M. Bah-Matandala J, in her ruling of 28 th February 2022. The appellant appealed to this -R3- Court against the said ruling (Appeal No. 115/2022) on the following grounds: 1. The Court erred in law when it dismissed the appellant's application to set aside writ for irregularity and/ or lack of jurisdiction and in doing so failed to properly consider the operation of Statutory Instrument No. 123 of 1992. 2. The Court below erred in law when, without considering the exceptions to the stare decisis principle, including the per incuriam rule, argued by the appellant, it held that moving away from the decision of the Supreme Court in the case of Antonio Ventriglia and Manuel Ventriglia & Southern African Trade & Development Bank SCZ No. 13 of 2010 when the circumstances are on all fours with the matter under consideration would be against the principle of stare decisis, and dismissed the application by the appellant. 3. Further and/or in the alternative, the Court below erred in law and in fact when it failed to consider if the decision in the case of Antonio Ventriglia and Manuel Ventriglia v Eastern & Southern African Trade & Development Bank supra was per -R4- incuriam and therefore whether there exists an exception to the doctrine of stare decisis in the case under consideration. 2.3 After the appellant had filed its appeal, sometime in May, 2023 the Attorney General filed an application to be joined to the appeal as Amicus Curiae pursuant to Order 15 Rule 6 (2) (b) of the Rules of the Supreme Court, 1999 Edition. 2 .4 The application was heard by a single Judge of this Court who dismissed the application on 26 th January 2024. 2.5 The appellant's application before us is based on the following grounds: i. The State has direct and sufficient interest in the subject matter of the appeal. ii. The State be permitted to express its views as it is the entity that granted the appellant immunity from suit in Zambia. iii. The appeal concerns issues that affect the prerogatives of the State, matters of public policy. 3.0 AFFIDAVIT IN SUPPORT OF THE MOTION 3.1 The affidavit in support dated 9 th February 2024, was sworn by Marshal Mubambe Muchende, the Solicitor-General of the Republic of Zambia, and per the provisions of the Constitution of Zambia, whose office, inter alia, assists the Attorney General's functions. -RS- 3.2 In this affidavit the grounds mentioned above, upon which the application is based were repeated. The deponent further deposed he believes that the appellant was established by a treaty under Chapter Nine of the Treaty for the Establishment of the Preferential Trade Area for Eastern and Southern African States (the PTA Treaty) which Treaty was replaced by the Treaty Establishing the Common Market for Eastern and Southern Africa in 1994 ( the CO MESA Treaty). The Charter of the appellant was adopted by the Council of Ministers of Preferential Trade Area for Eastern and Southern African States on 12 th July 1985 in Bujumbura, Burundi and it came into force on 6 th November 1985. 3.3 That the Republic of Zambia is a founding member of the preferential Trade Area of Eastern and Southern Africa, the predecessor of the Common Market for Eastern and Southern Africa which is headquartered in Lusaka, Zambia. Zambia is also a founding shareholder of the appellant. 3.4 He went on to state that owing to the provisions of the COMESA Treaty and the appellant's Charter, the Republic of Zambia is under an obligation to grant the appellant immunity from suit in Zambia. 3.5 That the Republic of Zambia in fulfilling its obligations under the said Treaty and Charter, granted the appellant immunity -R6- from suit in Zambia by way of enactment of Statutory Instrument No.123 of 1992-The Diplomatic Immunities and Privileges (Preferential Trade Area for Eastern and Southern African Trade and Development Bank) Order 1992. The Statutory Instrument was enacted by the President of the Republic of Zambia under the authority granted to him by the Diplomatic Immunities and Privileges Act, Chapter 20 of the Laws of Zambia. 3.6 This appeal raises issues surrounding the Republic of Zambia's grant of immunity from suit in Zambia to the appellant and 1n particular, the Zambian Courts' interpretation of the appellant's Charter as adopted under Zambian Law under the Diplomatic Immunities and Privileges (Preferential Trade Area for Eastern and Southern African Trade and Development Bank) Order 1992 (the TDB Diplomatic Immunities Order) and as a result, this matter has become of great concern to the Government of Zambia. 3. 7 That the decision of this honorable Court will have an impact on whether Zambia will or will not be in compliance or in breach of its obligations under the COMESA Treaty and the appellant's Charter. 3.8 The deponent believes that the question surrounding the appellant's immunity from suit in Zambia will not effectually -R7- and completely be determined without the involvement of the State, this being the entity that granted the appellant immunity from suit in Zambia. 3.9 That if Zambia does not recognise and properly apply the immunity to which the appellant is entitled under both international and domestic law, then the appellant is unlikely to fund further projects in this jurisdiction which may result in economic detriment at both regional and national level. 3.10 That the Attorney-General as Chief Legal Advisor to the Government of the Republic of Zambia has sufficient interest in the substance, hearing and determination of this matter. 3.11 He further deposed that on 20th April 2023, the Attorney General filed an application for joinder of a party to the proceedings as Amicus Curiae before a single Judge of the Court of Appeal. The same was dismissed in a ruling dated 26th January, 2024. 3.12 That as a result of Zambia's breach of the CO MESA Treaty and the appellant's Charter and particularly, the court's failure to recognise the appellant's absolute immunity from suit in Zambia, a resolution was passed by the appellant's Board of Governor's on 22 nd August 2019, calling on member states, including Zambia, to take such administrative, legislative or judicial steps to recognise the appellant's immunity from suit -RS- 1n Zambia, 1n relation to, among others, commercial transactions with private individuals, failing which the appellant may stop extending financial aid to the private sector in the affected countries. 3.13 That this matter is one that requires that the Attorney General be joined to the proceedings as Amicus Curiae with the view of discharging its statutory functions and objectives as provided in Article 177 of the Constitution of Zambia. The deponent also believes the appellant and the respondents herein will not be prejudiced in any way if this application is granted. 4.0 1 ST, 2ND AND 3RD RESPONDENT'S AFFIDAVIT IN OPPOSITION 4.1 The affidavit in opposition dated 16th February 2024, was sworn by Kenneth Khanda of Messrs Central Chambers, one of the advocates on record for the 1st , 2 nd and 3 rd respondents. 4.2 He stated that these proceedings concern the engagement into a commercial transaction by the appellant and private citizens of Zambia. 4.3 He further deposed that the obligation of Zambia in extending immunity to the appellant does not entail that the appellant enjoys absolute immunity in this jurisdiction. The issues raised by this appeal were subject to interpretation by the -R9- Supreme Court of Zambia in the case of Antonio Ventriglia and Manuela Ventriglia v. The Eastern and Southern African Trade and Development Bank, 1 and in the absence of the State being a party or Amicus Curiae, the Supreme Court ably determined the matter in 2010, and its decision remains law to date. 4.4 He went on to state that the decision of this Court is unlikely to have any impact whatsoever on whether Zambia is in compliance or in breach of its obligation under the COMESA Treaty and the appellant's Charter as there already is a Supreme Court decision on the interpretation of the immunity that the appellant enjoys in Zambia. 4.5 Further, the applicant has not shown any impact that the said Supreme Court decision has had on this country, as the Supreme Court rightly held that no immunity can arise when the appellant enters into commercial transactions with private citizens of this country. 4.6 The State has failed to demonstrate sufficient interest in the matter and cannot be joined simply on the basis that the Attorney General is the Government's Chief Legal Advisor. 4.7 That there is no demonstration that the Attorney General in light of the Supreme Court decision of the Antonio Ventriglia -RlO- case of 2010 cited earlier has failed to discharge his functions related to the appellant. 4. 8 That joining the State to these proceedings will only delay the 1 st and 2 nd respondents from being heard by the lower Court in the fresh action to set aside the consent order to which the State is not a party, thereby occasioning prejudice to them. 5.0 APPELLANT'S HEADS OF ARGUMENT 5.1 Counsel for the appellant submitted that pursuant to Order 15 Rule 6 (2) (b) of the Rules of the Supreme Court, this Court is empowered to join a party to proceedings where the party's presence is necessary to ensure that all matters 1n dispute are adjudicated upon. Reference was also made to Order 15 / 6 / 9 of the Rules of the Su pre me Court which permits a non-party to intervene and become a party upon demonstrating a sufficient interest directly related to the subject matter of the action. The case of Hope Foundation for Women and Children v. Munalula Linyati2 was cited, wherein the Supreme Court emphasized that a person should be joined to an action if they are bound or affected by its outcome, and if the issues cannot be effectively settled without their involvement. -Rll- 5.2 Counsel argued that the State, represented by the Attorney General, possesses a direct and sufficient interest in the subject matter of the appeal, justifying the Attorney General's inclusion as Amicus Curiae. 5.3 Counsel contended that the State's inclusion in these proceedings is necessary for the complete resolution of the issues in this action, particularly since the State granted the appellant immunity from suit in Zambia. 5.4 Reference was made to Order 15/6/ 10 of the RSC which provides inter alia that: "The Attorney General has a right of intervention in a private suit wherever it may affect · the prerogative of the Crown, including its relations with foreign states and also at the invitation or with the permission of the Court, where the suit raises any question of public policy on which the executive may have a view which it may desire to bring to the notice of the Court." 5.5 The above rule was taken from the case of Adams v. Adams 3 where the Court recognized the instances when the Attorney General may be joined to proceedings and in particular in a private suit before it. Sir Jocelyn Simon held as follows: "In my view, the Attorney General has a right of intervention in a private suit whenever it may affect the prerogative of the state, including its -R12- relations with foreign states and he certainly has in such circumstances a locus standi at the invitation of the Court. I think that the Attorney General also has the right of intervention at the invitation or with the permission of the Court where the suit raises any question of public policy on which the executive may have a view which it may desire to bring to the notice of the Court." 5.6 Counsel further submitted that in matters involving immunity from suit, as recognized by Lord Atkins 1n The Arantzazu Mendi case,4 the State must present a unified stance, underscoring the pertinence of executive intervention. 5.7 Counsel contended that this appeal raises significant questions of public policy, to which the executive holds a distinct perspective that it wishes to convey to the Court through the intervention of the Attorney General. 5.8 It was further argued that the Attorney General serves as the Chief Legal Advisor to the Government of the Republic of Zambia. The applicant elaborated on the nature of the Attorney General's responsibilities, as outlined in Article 177 of the Constitution of Zambia (Amendment) Act. He also discussed the details of the COMESA Treaty and the TDB Charter, which purportedly grants comprehensive immunity -R13- to the appellant except 1n cases where it exercises its borrowing powers. 5.9 He went on to state that the Attorney General should be permitted to express the state's viewpoint on this issue, as the Court's decision will determine whether Zambia would be in breach of its obligations under the Charter and the Treaty. 5.10 Commenting on the Supreme Court's decision in the case of Antonio Ventriglia v. Eastern and Southern African Trade and Development Bank supra, which determined the appellant's immunity from suit in Zambia, counsel noted that the State was not a party to the proceedings and its views were not sought. 6.0 1 st and 2 nd RESPONDENT'S HEADS OF ARGUMENT 6.1 Counsel for the 1 st and 2 nd respondents' submitted that the appeal aims at challenging the Supreme Court's judgment in the case of Antonio Ventriglia. He emphasized that a party seeking to be joined to the proceedings must satisfy the locus standi test. He cited the case of R v. Inland Revenue Commissioners, ex Parte National Federation of Self Employed & Small Business Limited,5 which defined locus standi as the ability of a party to demonstrate sufficient -R14- connection to and harm from the law and action challenged to support their participation in the case. 6.2 He also referred us to the cases of Abel Mulenga and Others v. Chikumbi and Others6 and Suhayl Dudhia v. Samir Karia and Citi Bank Zambia Limited,7 and contended that the State's grant of immunity to the appellant through Statutory Instrument No.123 of 1992 does not inherently provide the applicant with sufficient interest to be joined to this action as Amicus Curiae. 6.3 That the State has not shown how it would be affected by these proceedings, especially since the questions in the matter were dealt with by the Supreme Court in 2010 in the case of Antonio Ventriglia supra. Neither has it demonstrated how its inclusion would help effectually and completely determine the matter. 6.4 For the foregoing reasons, Counsel implored us to refuse the application for joinder. 7.0 THE HEARING 7. 1 At the hearing, the Solicitor General Mr. Muchende relied on the Notice of Motion, affidavit and skeleton arguments contained in the Record of Motion filed on 9 th February 2024. -R15- The oral submissions were mainly a repetition of the written submissions. 7.2 Mr. Muchende emphasised that the Attorney General sufficiently established the required interest by showing how the Court's determination of this matter would affect Zambia's obligations under the various treaties and international agreements following the doctrine of pacta sunt servanda (agreements must be kept). That in an application for joinder, the overriding principle is that of sufficient interest. 7.3 Reliance was placed on the case of Christine Lwali, Saviour Chishimba Stephen Mubanga & 26 Others v Edward Mumbi sued as Secretary General of the Patriotic Front Party, Michael Chilufya Sata & the Attorney General as intervenor8 where the importance of joining the Attorney General in matters that border on public interest was addressed. The Supreme Court stated that the Attorney General is the first law officer of the country. 7.4 Mr. Muchende stated that this is a suitable case to join the Attorney General. 7.5 Mr. Chuula and Mr Mumba, counsel for the appellant, supported the Solicitor General's submissions. 7.6 Mr. Siwila, counsel for the 1st , 2 nd and 3 rd respondents opposed the motion for j oinder and relied on the affidavit and skeleton -R16- arguments in opposition. He pointed out that the two issues to be considered are that of interest and how the Attorney General will be affected. The issue before the Court is one of setting aside a consent judgement which was entered into by the appellant, 2 nd and 4 th respondent in cause no. 2008/HN/268 (2013/HP/0021). The respondents commenced a fresh action to set aside the consent judgment. Counsel contended that the State will not be affected by the outcome of the proceedings to set aside the consent judgment. The State has no sufficient interest in the consentjudgment entered into by private parties. 7. 7 He noted that the State relies on the Eastern and Southern African States Development Charter (TDB) which sets out the extent of the immunity enjoyed by the appellant. Clause 42 (1) thereof provides for restrictive immunity as opposed to absolute immunity. Therefore, the assertion by the appellant that it enjoys absolute immunity is incorrect. 7.8 Resolution BG/35/19/AOB/01 obligated the State to take legislative, administrative, and other steps to clothe the appellant bank with full immunity but to date, the applicant has not shown that a resolution to clothe the appellant with absolute immunity has been invoked. The appellant still enjoys restrictive immunity. The issue of immunity which the -Rl7- State is canvassing has already been dealt with in the Supreme Court Case of Antonio Ventriglia supra. Given this decision, this Court's hands are tied. 7. 9 We were urged to dismiss the j oinder application. 7.10 Mr. Sianondo, began by responding to the question we posed on who signed the consent judgment. He responded that the appellant signed the consent judgment and therefore had to be cited in cause No. 2021/HP/0195 for setting aside the consent judgment. He proceeded to submit on the difference between an Amicus Curiae and an intervenor. He pointed out that the heading of the summons shows the Attorney General wants to be joined as Amicus Curiae but in the body of the application it is indicated that he wants to be joined as an intervenor which is incorrect. 7.11 Mr. Khanda added that the applicant's failure to demonstrate how the 2010 decision of the Supreme Court has affected it is an indication that he does not have sufficient interest in the matter. 7.12 In reply to Mr. Sianondo's observation that the State was using the terms Amicus Curiae and intervenor interchangeably, Mr. Muchende clarified that the intention is to have the Attorney General joined as an intervenor and that despite the interchanging of words the Court can still consider to do -R18- justice. He relied on the case of Knox Magugu Mbazima v. Tobacco Association of Zambia, 9 where the Supreme Court noted that it was moved by the wrong rules of court but still proceeded to determine the application. 8.0 ANALYSIS AND DECISION 8.1 We have prudently considered the motion for an order for joinder of the Attorney General to appeal No. 12 of 2024. We have also looked at the decision of the single Judge of this Court and the arguments and authorities advanced by counsel for the concerned parties. We hasten to mention that the motion was framed as a fresh application in that the heading is the same as the motion that was heard by the single Judge of this Court and rejected on 26 th January, 2024. Order X Rule 8 of the Court of Appeal Rules, 2016 provides as follows: "A person who is aggrieved by a decision of a single Judge and who intends to have such decision varied, discharged or reversed by the Court under section 9 (b) of the Act shall before the date of hearing of the application by the court, file three extra copies of proceedings including copies of affidavits filed by the other party prior to the single Judge's decision for the use of the Court." -R19- 8.2 Section 9 (b) of the Court of Appeal Act provides that: "In civil matters, an order direction or decision made or given in pursuance of the powers conferred by this section may be varied, discharged or reversed by the Court." 8.3 It is trite law that an application to vary, discharge or reverse a decision of a single Judge is dealt with by rehearing the application that was before the single Judge. Therefore the normal procedure is to cite the relevant Court of Appeal Rules and present the application as one for the reversal, variation or discharge of the single Judge's decision. 8.4 We note that the notice of motion was not properly drafted. Nevertheless, the required documents under Order X rule 8 of the Court of Appeal Rules were placed on the record of the motion. Therefore, the other parties will not suffer any injustice should we proceed to determine the matter on its merits. We therefore excuse the applicant for the omission and will proceed to determine the matter. 8.5 The application is founded on Order 15/6/2 of the RSC which bestows upon the Court power to order the joinder of a party at any stage of the proceedings in any cause or matter, either on its own motion or upon application. A party may be added if their presence is necessary to ensure that all matters in -R20- dispute can be effectively determined or adjudicated upon, or if there is a question or issue involving them and another party that should be resolved in the proceedings. 8.6 Order 15/6/9 of the RSC in explaining the interest of an intervening party elaborates that to intervene in an action and be joined as a party, a person not originally part of the lawsuit should have some interest which is directly related or connected with the subject matter of the action. 8.7 Order 15/6/ 10 of the RSC gives the Attorney-General the right to intervene in a private suit if it affects the Crown's prerogative or relations with foreign states. Additionally, the Attorney-General may intervene, either at the court's invitation or with permission, in cases involving public policy issues where the executive branch has a view that it wishes to bring to the court's attention. 8.8 In the case of Sachar Narendra Kumar v. Joseph Brown Mutale, 10 it was established that the rationale for ordering a joinder of a party is to allow the Court to determine all matters in dispute in one cause and thus prevent multiplicity of actions. This power is discretionary. 8. 9 The Court further stated that in considering whether or not to join a party to the proceedings, the Court must be guided by the interest of justice. Additionally, the Court must take into -R21- consideration all the circumstances of the case. Some of these principles were also echoed in the case of Hope Foundation of Women and Children v. Munalula Linyati2 supra which we also adopt. 8.10 The crucial question raised in this application is whether the Attorney General has demonstrated sufficient interest to be joined to the appeal. We further ask ourselves whether it would be in the interest of justice to add him at this stage of the proceedings. Is it necessary to join him to the appeal for there to be proper determination of all the issues raised therein or merely the issue of immunity of the appellant against suit? Will joining the Attorney General to these proceedings cause prejudice to the respondent's action or defeat or nullify the action against the appellant? These questions will be determined simultaneously. 8.11 Using the terms of "Amicus Curiae" and "intervenor" interchangeably is not fatal to the application because the nature of the application is clear to the Court and the parties concerned: for joinder of the Attorney General to the appeal as an intervenor. 8.12 By law, the only way to challenge a judgment by consent is to start a fresh action specifically to challenge that judgment. See the cases of Zambia Seed Company Limited and Chartered -R22- International (Pvt) Limited11 and John Mukoma Kasanga and Others v. Development Bank of Zambia and Others. 12 8. 13 Therefore the only option that was available to the 1 st and 2nd respondents in trying to set aside the consent judgment that the appellant itself entered into was to commence a fresh action. We note that the consent judgment is for the recovery of a colossal sum of money by the appellant from the 1st and 2nd respondent. 8.14 As rightly argued by the respondents' advocates, the consent judgment has nothing to do with the Attorney General or the State. Issues relating to the appellant's immunity against suit are the substantive issues to be determined upon hearing the appeal. 8.15 The applicant has neither shown how the Ventriglia case 1 has adversely affected the State since 2010 nor demonstrated that he ought to be joined to the proceedings to allow this Court determine all matters in dispute in one cause in order to prevent multiplicity of actions (see the cases of Sachar Nerenda Kumar v. Joseph Brown Mutale). 8 .16 Considering Order 15 / 6 / 9 of the RSC, we are of the view that the applicant has no interest which is directly related to the subject matter of the action because the subject matter of the action is the consent judgment. The main question raised in -R23- the appeal is whether the Ventriglia ease 1 was decided per incuriam. This question can be effectively determined without joining the applicant to the appeal. The Resolution GB/ 35 / 19/AOB/01 by the Board of Governors made on 22nd August, 2019 which advises COMESA member States including Zambia to take such administrative legislative or judicial steps to recognize the appellant's immunity from suit in Zambia, in relation to matters including commercial transactions was made nine years after the Ventriglia ease 1 was decided. The intended intervenor relied on the said resolution. We do not see how that resolution affected that decision retrospectively. 8.17 Applying the R v. Inland Revenue Commissioners case, we find that the Attorney General has no locus standi in this matter. 8.18 Considering all circumstances of this case, we hold the firm view that the Attorney General has not demonstrated sufficient interest in this matter or that the appeal cannot effectively be determined without his involvement. 8.19 We are of the further view that it would not be in the interest of justice to join the Attorney General to this appeal because that would delay the proceedings and cause prejudice to the 1 stand 2nct respondents. -R24- 9.0 CONCLUSION 9.1 Finally, we are not persuaded to interfere with the single Judge's Ruling. It would not be in the interest of justice to join the Attorney General at this stage of the proceedings. The motion is denied with costs to the 1st , 2 nd , and 3 rd respondents. J. CHASHI COURT OF APPEAL JUDGE C. K. MAKUNGU COURT OF APPEAL JUDGE -R25-