Finsbury Investments Limited v Antonio Ventriglia and Anor (Application/75/2021) [2024] ZMCA 308 (18 November 2024)

IN THE COURT OF APPEAL HOLDEN AT LUSAKA (CML JURISDICTION) BETWEEN: Application/75/2021 FINSBURY INVESTMENT LIMIT APPELLANT AND ANTONIO VENTRIGLIA MANUELA VENTRIGLIA RESPONDENT ND RESPONDENT RAJAN LEKHRAJ MAHTANI 1 sT ALLEGED CONTEMNOR PHESTO NDOLOLO MUSONDA 2ND ALLEGED CONTEMNOR JIMMY KALUNGA 3RD ALLEGED CONTEMNOR CORAM : KONDOLO SC, NGULUBE, BOBO-BANDA JAA For the Appellant and Alleged Contemnors: Mr. J. Sangwa, SC & Mr. M Nkunika of Messrs Simeza Sangwa Associates; For the 1st Alleged Contemnor: Mr. D. M. Chakoleka of Messrs Mulenga Mundashi & Company; Mr. S. P. Chilembo & Mr. D. M. Silavwe of Messrs Razo Chambers For the Respondents: Mr. S. Mambwe & Mr A. Siwila of Messrs Mambwe, Siwila & Lisimba Advocates; Mr. C Sianondo of Messrs Malambo & Company; Mr. Kanda of Messrs Central Chambers and RULING M. KONDOLO delivered the ruling of the Court; CASES REFERRED TO: 1. Post Newspapers Limited v The Zambia Revenue Authority SCZ/ 18/2016 2. Everett v Rib bands and [ 1952] 2 QB 198 3. Carl Zeiss Stiftung v Hebert Smith & Co. [1969] lCh 93, CA. 4. John Mumba, Danny Museteka, Dr. W Amisi and Dennis S Simuyani v Zambia Red Cross Society (2006) ZR 137 5. Bank of Zambia v Al Shams Building Materials Company Limited & 2 Others CAZ/430/2023 6. Hadkinson v Hadkinson (1952) All ER 567 LEGISLATION REFERRED TO: 1. Rules of the Supreme Court (1965), ,999 Edition 2. Constitutional Court Review 2019 Volume 9, 283-315 (https://doi.org/10.2989/ CCR.2019.0011) 3. The Supreme Court Rules, White Book, 1999 Edition 1. INTRODUCTION 1.1 The Applicant, who is the Appellant herein, filed summons for an order for a point of law to be tried as a preliminary issue pursuant to Order 33 Rule 3 of the Rules of the Supreme Court 1965 (RSC) on the following question; Whether, based on the decision of the Supreme Court in Post Newspapers Limited v The Zambia Revenue Authority f1J, the Ruling and Order of 29th March 2019, are stayable. 2. BACKGROUND 2. 1 In the main matter, the High Court decided against the Appellant who appealed to this Court and the decision of the High Court was overturned. 2.2 Following success in the appeal, the Appellant applied for the judgement to be embodied. The Respondents took issue with the draft embodiment order proposed by the Appellant on the grounds that the sum reflecting as payable to them by the Appellant was different from the sum ordered in the judgement. They further raised issue that the proposed embodiment had introduced a non-party as a beneficiary of the judgement. 2.3 The application was heard by a single judge who on 28 th December 2019 dismissed the Respondents objections and delivered a ruling and order allowing the embodiment order as proposed by the Appellant. 2.4 On 8 th April 2020, the Court granted an application by the Respondents for leave to appeal to the Supreme Court against the Judgment of 31 st January, 2019 and the Ruling and Order of 29 th March 2019. The Supreme Court on 28 th October, 2020 delivered its judgement dismissing the appeal on the ground that the Court of Appeal had lacked jurisdiction to hear the application for leave to appeal. 2.5 The Appellant reverted to the Court of Appea, and on 29 th October, 2020 moved the Court for an Order for leave to apply for an extension of time in which to apply to set aside or reverse the Ruling and Order of 29t h March 2019. 2.6 The application was heard by a single judge who on 4 th December, 2020, delivered a ruling stating that he had declined to grant an application staying his Ruling and Order of 28th March 2019 pending the hearing of an application to the full Court for an order to extend time within which to reverse or discharge his decision to refuse an order for stay. He noted that the application for extension of time was not argued . He opined that it was appropriate to have the Court consider the application for extension of time together with the application for discharge or reversal of his order. He accordingly adjourned the application for consideration by the Court. 2. 7 The same day on 4 th December, 2019 the Respondents applied to the Court ex parte to stay execution of the Order of 29 th March, 2019 pending the application to discharge or reverse the said Ruling and Order. The ex parte Order was granted and set for an inter partes hearing seven days later on 11 th December, 2020. 2.8 The day before the inter partes hearing was to be heard, the Appellant on 10th December, 2020 filed a motion asking the Court to dismiss the Respondents application for stay of execution for want of jurisdiction. 2. 9 As a consequence, the inter partes hearing set for 11 th December, 2020 did not take place. 2.10 The Court considered the application and on 16th September, 2021 delivered its ruling on the matter stating that it was clothed with jurisdiction to hear the Respondents application. 2.11 On 21st September, 2021 the Respondents filed a motion moving the Court for contempt of court against the 2 nd and 3 rd alleged contemnors under application no. 48 of 2021. 2.12 On 30th September, 2021, the Appellant filed a Motion to appeal to the Supreme Court against our ruling of 16 th September, 2021 on jurisdiction. 2.13 On 31 st December, 2021 the Respondents filed another motion moving the Court for contempt of court this time against the 1st , 2 nd and 3 rd alleged contemnors under application no. 75 of 2021. These are the contempt proceedings currently underway in this court 2.14 On 2 nd February, 2022, the Respondents moved the Court to stay the proceedings until after the contempt proceedings are concluded. The Respondents application was granted by an order delivered on 13th July, 2022. 2.15 The contempt proceedings commenced and after the Respondents closed their case the alleged contemnors were found with a case to answer and put on their defence. 2.16 On 27 th July, 2023, the Appellant filed the application currently before court responding to the Respondents application to stay execution of the Ruling and Order of 29 th March 2020, on points of law. 2.17 The main argument by the Appellant being that, the Order of 29th March, 2020 is declaratory and not executory, meaning that the outcome of the application could have a bearing on the contempt proceedings. 2.18 The application was not set down for hearing because of our order of 13th July, 2022 staying proceedings. 3. THE APPLICATION 3.1 When the contempt matter came up on 21 st August 2024 for hearing the alleged contemnors on their defence, the Appellant asked that their application filed on 27th July, 2023 be heard. 3.2 We reminded them of our order staying proceedings but the Appellant characterized the application as a jurisdictional issue which was challenging the contempt proceedings themselves. It was, on that basis, argued that the application should be heard, as an objection on a point of law could be raised at any time. 3.3 It was further submitted that 1n the Appellants understanding, the order did not stay all proceedings but only pending applications and the application before court has been raised within the contempt proceedings whose effect is to terminate the contempt proceedings which were, in their view a nullity. 3.4 The Respondents objected to the application on the basis that the question the Appellants wanted this Court to determine, i.e. whether the Order and Ruling of 29th March 2019 was stayable, was in fact an issue that should have been brought up in opposition at the inter partes hearing of the Order of 4 th December, 2020. 3.5 It was further submitted that the Order of 13th July, 2022 stayed hearing of other applications until the contempt proceedings are exhausted. 3.6 The Respondents asked that should the Court hold the view that the application should be entertained, they would like to respond to the application. 3.7 The Appellant replied by stating that the points raised by the Respondent should be raised in opposition to this application. 3.8 Appellants Case 3.9 As indicated earlier, the application was filed on 27th July, 2023 and supported by an affidavit and written arguments. We have been asked that this application be set down for hearing and disposed of forthwith before the trial of the issues of fact and other issues in the contempt proceedings and all other applications pending before the Court in this matter. 3.10 It was submitted that if this application is successful, it could determine and resolve most of the outstanding issues in this matter including the contempt proceedings, and the yet to be heard inter partes hearing for the stay of execution of the Ruling and Order of 29th March 2019. 3.11 The Appellants written submissions gave a long historical evolution of Order 33 Rule 3 RSC and ultimately opined that the objective of the rule is to enable the parties to better manage the time in litigating a matter. That there is no reason to proceed to a full trial where determining a particular issue will decisively determine the entire case. In arriving at this conclusion, the Appellants extensively quoted Romer L. J. in Everett v Ribbands 121 and Lord Denning in Carl Zeiss Stiftung v Hebert Smith & Co. 131 • 3. 12 That the preliminary issue raised in these proceedings seeks the Court to determine the following question of law; "whether based on the decision of the Supreme Court in Zambia Revenue Authority v Post Newspapers Limited the Ruling and Order of 29th March 2019 are stay able". 3.13 The Appellant submitted that this question of law falls within the ambit of Order 33 rule 3 RSC and that this Court is bound by the decision in the cited case where it was held as follows' "Where a judgement or Ruling refuses Judicial Review or an Injunction, there is nothing to stay; because such a judgement or Ruling does not award a remedy, such as money or property, which can be obtained by Court execution ...... if there is nothing to execute about such a judgement or ruling, then there is nothing to stay about it. Only a judgement or ruling which awards a remedy and which can be enforced by Court process can be stayed " 3.14 Reference was made to the earlier case of John Mumba, Danny Museteka, Dr. W Amisi and Dennis S Simuyani v Zambia Red Cross Society 141 where a single judge of the Supreme Court granted a stay of execution after an injunction had been discharged by the High Court and the full bench of Court stated as follows; "The court below should have asked itself, before granting the said stay as to 'what was there to stay.' Rll of 24 When the ex parte injunction was discharged the parties retained their original status which could not be stayed by the court .... " 3.15 It was submitted on the above premise that a determination by the Court on the point of law that the Ruling and Order of 29th March 2019 are declaratory in nature and therefore not stayable, will conclusively determine these contempt proceedings and resolve the pending inter partes hearing alluded to earlier. 3.16 It was pointed out that the contempt proceedings are founded on the premise that the Ruling and Order of 29 th March 2019 is stayable and was in fact stayed by the ex parte Order of 4 th December, 2020. 3.17 That the preliminary issue asks the question, whether based on the Zambia Revenue Authority v Post Newspapers Limited Case supra, the order and ruling are stayable. That if the Court finds that the said Ruling and Order are not stayable, that will conclusively determine these contempt proceedings. 3.18 That at the inter partes hearing of the ex parte order one of the issues for consideration will be whether there is cause to confirm or discharge the ex parte order pending the hearing of the Respondents application for leave to apply for the extension of time in which to apply to set aside the Order and Ruling. 3.19 That amongst the five reasons given 1n its affidavit and arguments in opposition to the ex parte order was the argument that the ruling and order of 29 th March 2019 are executory [sic] in nature and therefore not stayable. That if this Court agrees that they are not stayable, there will be no cause or reason to schedule the application for inter partes hearing. 3.20 The Appellant concluded by submitting that based on the decision of Romer L. J. in Everret v Rib bands supra, there is no reason, in this case, why the Court and the parties should not take advantage of the mechanism afforded by Order 33 rule 3 RSC and have the preliminary issue resolved. 3. 21 It was prayed that the preliminary application be set down for hearing forthwith and before trial of the issues of fact and other issues and that costs of this application be borne by the Respondents to the contempt proceedings. 4. Respondents case 4.1 The Respondents filed an affidavit 1n opposition together with arguments on 3 rd September, 2024. The affidavit in support tabulated the history of the matter but differed with the Appellant as to the details which led to the differences between the parties when embodying the judgement of 31 st January 2019. 4.2 It was submitted that the question of whether the Ruling and Order of 29 th March 2019 was declaratory was actually raised in the Appellants affidavit filed on 13th July, 2023, in opposition to the Respondents application for stay of execution of the said Ruling and Order. 4.3 That therefore when the Court suspended all proceedings, it included the question regarding whether the Order of 29 th March 2019 was declaratory. 4.4 Further, that the question of whether it was declaratory was appropriate for resolution at the inter partes hearing. That this application filed by the Appellant was in breach of the order of this Court of 13th July 2023 which stayed all the proceedings pending conclusion of the contempt proceedings. 4.5 The Respondent submitted that setting aside the ex parte order would neither abate nor dissolve the contempt proceedings and cited this Court's ruling in the case of Bank of Zambia v Al Shams Building Materials Company Limited & 2 Others 151 where we held that Orders of Court must be obeyed whether or not they have any legal defects. 4.6 We were further directed to the ruling of 13th July, 2023 at paragraph 31 where we stated as follows; " .. .. Courts take a very serious view of any allegations that a party has disobeyed a court order. The law requires parties to obey court orders even where they believe that the orders are irregular or void". 4.7 It was further argued that contrary to the Appellants assertions, the Ruling and Order of 29 th March, 2019 were actually executable as the Appellant presented them to PACRA for the purpose of changing their records with regard to the status of the directors of Zambezi Portland Cement Limited. 4.8 It was prayed that the application be dismissed. 5. Appellants Reply 5.1 The Appellant submitted that at this stage, the Court is not concerned with the merits of the proposed question of law but whether the said question was appropriate to be set down for trial. 5.2 That instead of opposing the application, the Respondents had gone ahead of the Appellants and the Court and proceeded to address the merits of the question of law as framed by the Appellants. 5.3 That this application was properly before court because it was made within the contempt proceedings and was thus unaffected by the Order of 13th September 2023. 5.4 The Appellant concluded that by concentrating on the merits of the application the Respondents had ended up not opposing the Appellants application. 5.5 It was prayed that the application be allowed. 6. ANALYSIS AND DECISION 6.1 We have considered the summons, the affidavits and arguments filed by the parties. 6.2 It is quite interesting when one considers that the Appellant is in effect asking the court to stay the contempt proceedings to allow a point of law to be tried as a preliminary issue when the contempt proceedings are themselves proceeding following an order to stay proceedings until the contempt proceedings are concluded. 6 .3 It is clear that one of the objectives of this application is to terminate the contempt proceedings on the point of law raised by the Appellant. The Appellant is quite within its rights to pursue this application because it is well settled that parties are permitted to raise points of law and jurisdictional questions at any point during the proceedings. For that reason, we are duty bound to consider whether the Appellants application has merit. 6.4 The gravamen of the Appellants application is that this application should be allowed because if decided in favour of the Appellant, most of the outstanding issues in the main case will be determined. That it would be wise to save time by embarking on the proposed course of action which could determine all the outstanding matters in one hearing. 6.5 In delivering his decision on the importance of Courts hearing applications that could settle a matter and save the Court's time by not proceeding with an ill-fated trial, Romer L. J. in Everret v Rib bands supra stated that it was preferable for such applications to be made timeously and he said as follows; "I think where you have a point of law, which, if decided in one way, is going to be decisive of litigation, then advantage ought to be taken of the facilities afforded by the Rules of Court to have it disposed of at the close of pleadings or very shortly after the close of pleadings" 6.6 We however note, that this application was made well after the contempt proceedings had commenced, and whilst a decision was being awaited as to whether or not the alleged contemnors would be found with a case to answer. 6.7 We further observe that ideally, this application should have been made immediately after the Respondents were granted the ex parte order staying the Ruling and Order of 29 th March 2029. 6.8 However, instead of making this application at that opportune moment or advancing the same arguments at the inter partes hearing, the day before the hearing, the Appellant decided to challenge the jurisdiction of the Court. 6.9 In his oral submissions State Counsel Sangwa on behalf of the Appellant submitted that the Order of 13th July, 2023 did not stay all proceedings but was only in relation to the Appellants application to appeal to the Supreme Court against the Ruling of 16th September 2921, by which we decided that we had jurisdiction to hear the Respondents application for extension of time and stay of execution. 6.10 This argument was repeated in the Appellants reply to the Respondents affidavit in opposition which emphasised that the application before court had been made within the contempt proceedings and was thus unaffected by the Order of 13th July 2022. 6. 11 We must hasten to remind the parties that the Appellants motion asking the Court to stay the proceedings was on the basis that contempt proceedings take precedence over all other applications as they are criminal in nature; and that this court cannot continue making orders and decisions when its authority is being undermined through the disobedience of its orders. On that basis the Respondents sought that all other proceedings in this matter be suspended pending the determination of the notice of motion for contempt of court. 6.12 After considering the arguments advanced by the parties on the application to stay proceedings we ruled as follows; 'We agree with the applicants that this court cannot continue making orders and decisions in the face of these allegations that the authority of the court is being undermined through the disobedience of its orders. We therefore find merit in this notice of motion and hereby allow it. We accordingly suspend the proceedings in this matter pending the determination of the contempt proceedings." 6.13 The correct position is therefore that all proceedings in this matter were stayed pending the conclusion of the contempt proceedings. That is the reason why the inter partes hearing has not materialised. 6.14 The Appellant acknowledges that the contempt proceedings were launched against the alleged contemnors for disobeying the ex partes order of 4 th December 2020 which stayed the execution of the ruling of the single judge of the Court of Appeal dated 29 th March 2019 pending an inter partes hearing which still awaits a return date of hearing. 6.15 According to the Appellant the continued prosecution of the contempt proceedings depends on whether the Ruling and Order of 29th March 2019 is stayable. In our view, the Appellants perception of the issue before Court is completely misconceived because the contempt proceedings are based on the allegation that the alleged contemnors disobeyed the ex parte order of this Court dated 4 th December 2020 and not on whether or not the ruling and order stayed were stayable 6.16 We agree with the Respondent, and as we said earlier, the issue of whether the Order of 29 th March 2019 was stayable is amongst the arguments the Court may have been called upon to interrogate at the inter partes hearing which is yet to be heard. The outcome of the inter partes application has no bearing on the continuance of or life of the contempt proceedings which are purely based on the allegation that the ex parte order was disobeyed. 6.17 The problem facing the Appellant is that it seeks to nullify the contempt proceedings but the Order of stay of proceedings of 13th July 2022, stands in the way of the inter partes hearing under which the Appellant sought to advance its arguments, including the question we are being asked to determine in this application. 6.18 The Appellants application to appeal to the Supreme Court was equally affected by the order of 13th July, 2023, staying proceedings in this matter. It is notable that the Appellant did not appeal that decision. 6.19 The Appellant has deployed this application to enable it advance the argument herein which it intended to advance at the inter partes hearing which can only proceed after the contempt proceedings are concluded. 6.20 According to Romer L. J. who the Appellant has cited to a great degree, applications of this nature should be brought to Court expeditiously, preferably right after the close of pleadings. The application in casu has been brought very late in the day, after the Respondents had closed their case. 6.21 According to the Appellant this does not really natter because if the question posed to the court is answered in the affirmative, the effect will nullify the ex parte order of stay of 4 th December 2020. That if the ex parte order is nullified on account of the Ruling and Order of 29 th March 2019 not being stayable, then there was nothing that was disobeyed. 6.22 We find this reasoning both shocking and alarming because the contempt proceedings herein have little or nothing to do with whether or not the ex parte order was legally wrong but has everything to do with the fact that the Order was made and remains an Order of the Court that must be obeyed until it is set aside. 6.23 In Bank of Zambia v Al Shams Building Materials Company Limited & 2 Others supra this is what we said; "In our jurisdiction however, an order of the court must be obeyed whether perceived to be a nullity, illegal, void, irregular or for some similar reasons until it has been vacated or set aside by the same court or on appeal. 6.24 Further, in our ruling of 13th July 2022, we too deferred to Lord Romer where in the case of Hadkinson v Hadkinson 16 1 he said as follows· ' ' "It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a competent jurisdiction to obey it, and until that order is discharged. The compromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it be irregular or even void." (emphasis ours) 6.25 In an article by Mitchell Nold De Beer published in the Constitutional Court Review 2019 Volume 9, 283-315 (https://doi.org/10.2989/CCR.2019.0011), a South African publication, the learned author opined as follows; " .... judges err sometimes. And if they err and their orders not challenged on appeal can simply be ignored, that could be a near-fatal blow to the rule of law; respecting court orders is a core foundation of our legal system. Not only will the law lose its ability to regulate affairs between private parties, but this might also undermine its important function in controlling the exercise of public power by the State." 6.26 It is crystal clear that the question of law which the Appellant would have this Court try as a preliminary issue will have no impact at all on the contempt proceedings whose length · and breadth are confined to ·alleged disobedience of the ex parte order irrespective of whether or not the said ex parte order was legally sound. 6.27 In the circumstances, hearing the application as proposed by the Appellant will have the effect of undermining the Order of this Court of13th July 2022, staying proceedings until the contempt proceedings are concluded. 6.28 In the premises, this application is dismissed with costs to the Respondents. 6.29 The contempt proceedings shall resume at the next sitting of the Court. ~ ::::, .......•••.•.••••................•••... M. M. KONDOLO SC COURT OF APPEAL JUDGE '-. ~ .............................•••••• P. C. NGULUBE COURT OF APPEAL JUDGE A. M. BANDA-BOBO COURT OF APPEAL JUDGE