Finsbury Investments Limited v Antonio Ventriglia and Ors (APPLICATION NO. 75/2021) [2025] ZMCA 66 (29 May 2025)

IN THE COURT OF APPEAL APPLICATION NO. 75/2021 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: FINSBURY INVESTMENT LIMITED APPELLANT AND ANTONIO VENTRIGLIA MANUELA VENTRIGLIA 1 ST RESPONDENT 2ND RESPONDENT RAJAN LEKHRAJ MAHTANI 1 sT ALLEGED CONTEMNOR PHESTO NDOLOLO MUSONDA 2ND ALLEGED CONTEMNOR JIMMY KALUNGA 3RD ALLEGED CONTEMNOR CORAM : KONDOLO SC, NGULUBE AND BANDA-BOBO JJA On 21 st August, 2024; 20th November 2024; 27th November 2024 and 29th May, 2025 For the Appellant and the Alleged Contemnors: Mr. J. Sangwa, SC of Messrs Simeza Sangwa & Associates; Mr Chakoleka & Mr. P. Chomba of Messrs Mulenga Mundashi & Company; Mr. S. P. Chilembo & Mr. P. M. Silavwe of Messrs Raso Chambers; Mr. M. Nkunika of Messrs ZS Legal Practitioners. For the Respondents: Mr. A. Siwila & Mr. S. Mambwe of Messrs Page 2 of 5 Mambwe, Siwila & Lisimba Advocates. Mr. C. Sianondo & C. Malambo of Messrs Malambo & Co; Mr. S. Sikota, SC & Mr. K. Khanda of Messrs Central Chambers SENTENCING KONDOLO SC, JA delivered the sentence of the Court; 1. MITIGATION 1. 1. Having been convicted of contempt of court, in the proceedings herein, learned State Counsel Sangwa submitted in mitigation on behalf of his clients ACl, AC2 and AC3. 1.2. State Counsel stated that he was taking full responsibility for his clients' actions because they acted on his advice. 1.2.1. He stated that the advice was honestly and genuinely based on his understanding of the law as evidenced by the detailed legal arguments advanced by his team. That there was no intention on his part or his clients to show any form of disrespect to the Court. Page 3 of 5 1.2.2. That now that the Court has clarified the contentious issues, the alleged contemnors would proceed as guided by the Court. 1.3. Secondly, that the acts which amounted to contempt with regard to AC 1 were rectified in short order and have not been repeated. That AC2 and AC3 had never gone back to ZPC after the events that led to these contempt proceedings. 1.4. Thirdly, having been guided on the position by the Court they commit to comply with the order of 4 th December, 2020. 1.4.1. With respect to AC 1, we were asked to consider that he is of advanced age and has a medical condition which requires constant monitoring. 1.4.2. We were also asked to consider that AC2 and AC3 are equally of advanced age. 1.4.3. We were for these reasons beseeched not to impose any custodial sentence or fine on the contemnors as the very finding of contempt was enough. 1.5. That Order 45 and 52 RSC is a means of enforcement, and if there was something additional required of the contemnors with regard to the Order of 4 th December 2020 they are willing to do so. Page 4 of 5 2. SENTENCE 2.1. We have considered the mitigation on behalf of ACl, AC2 and AC3 by the learned State Counsel and find quite remarkable that he bared all by accepting responsibility for these most unfortunate proceedings, stating that his clients acted on his advice. 2.2. It is settled law that the general position is that mistakes and misadvise of counsel are of no concern to the court and is a matter between the client and his counsel. 2.3. Secondly, the real question had nothing to do with the parties' interpretation of the law as to whether the order of 4 th December 2020 was legally correct. The only question was whether or not the order was disobeyed. 2.4. To ask us to accept that State Counsel or indeed his clients believed that parties are at liberty to disobey court orders simply because they believe the order to be wrong at law is incomprehensible. 2.5. Despite our preceding comment, we note ACl's advanced age and medical condition as well as the ages of AC2 and AC3. We also note that the disobedience of the order lasted a very short period and did not recur. Page 5 of 5 2.6. We however find it imperative that the requirement to unreservedly comply with court orders must be emphasized by the Courts taking action that will cause parties to think twice before disobeying court orders. 2.7. Taking into account all the factors submitted in mitigation we find that the circumstances of this case do not warrant any of the contemnors being committed to prison. 2.8. We however, impose a fine of K75, 000 to be paid by each contemnor before the expiry of seven days starting from tomorrow, failure of which shall attract 30 days simple imprisonment for each contemnor who fails to pay the fine. .. . .......•••.......•. M. M. KONDOLO, SC COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE ·········-":·~··········· A. M. BANDA-BOBO COURT OF APPEAL JUDGE