Urban Brands Asset Management Limited and Anor v Impala Hotels and Suites Ndola Limited and Ors (2024/HPC/0063) [2024] ZMHC 310 (18 March 2024)

IN THE JHGH COURT FOR ZAM AT THE COMMERCIAL REOISTR BOLDEN' AT LUSAKA (Civil Jomdictlon) BETWEEN: AND I Ml~2lm MERCl~L R£CI IMPALA HOTELS AND SUITES NDOLA LIMITED AFRIC. AA' LIFE FINANCIAL SERVICES (ZAMBIA) LIMITED SANI>VIK MINING PENSION TRUST SCHEME Lll'IIITED CEC PENSION' TRUST SCHEME INDENI PENSION' TRUST SCHEME LAFARGE CEMENT PLC PENSION' TRUST SCHEME KONKOLA COPPER MINES PLC PENSION TRUST SCHEI/IE FIRST DEFENDANT SECOND DEFENDANT THJRJ) DEFENDANT FOUR. TB DEFENDANT FIFTH DEFENDANT SIXTH DEFENI>Al'IT SEVENTH DEFENDANT Before the Honourable Mr Ju&tico K.. Cherula on 18th March 2024 For the: PJsintifTe For the 1 ~ Dcfc-n&tnt For the 2rA to 1lfl,. Defendants : Mr Y. YoM and Ms. H, Chile$h e of MAY & Company , N I A : Mr P. Chomb:.,i o ( Mulengt\ Mun das:hl Lc:,;sl Practitiont:tS RULING On Application for Leave to Appeal l have LISTENED ATTENTIVELY to the arguments verbalised and CLOSELY STUDIED the documentation on record. After a CAREFUL CONSIDERATION, my decision delivered ex-tempore is as follows. 1.1 The Court of Appeal Rules (S.1. No. 65 of 2016) in Order 10 Rule 4(3) have the following mandatory prescription with respect to an application for leave to appeal: "(3} An application to the Hiqh Court or quasi-judicial body for leave to appeal to the Court shall be bu motion or summons and state the grounds of the application, and shall, if necessary, be supported by an affidavit." {Emphasis added) 1.2 Quite clearly therefore, an application for leave to appeal (against a decision which requires it) ought to be anchored on some grounds which must be contained in the summons or motion. 1.3 In the case before Court, perusal of the summons filed (on 11th March 2024) for leave to appeal shows that there are no grounds stated thereon for the application. Instead the Plaintiffs indicate that the grounds are set out in the affidavit in support and its accompanying arguments. 1.4 On that score, the application is procedurally incompetent and should ordinarily fail without even further consideration. 1.5 Now turning to the merits, the Supreme Court guided in Breza Engineering Limited v GM International Limited and KCM - Vol. 1 (2010) ZR 46 at page 49 and 53, that an applicant for leave to appeal must demonstrate that there are realistic prospects of success on appeal to justify the grant of leave. 1.6 In the case before Court, the Plaintiffs have not in this application demonstrated primafacie: (i) whether and how this Court misapplied the principles of law cited in the ruling of 7th March 2024; (ii) anything new that has a bearing on the merits of the ruling. R2 1.7 The aforesaid deficiencies are not cured by the exhibit of a draft memorandum of appeal with proposed grounds. 1.8 J say so as firstly, preparation of a memorandum is simply fulfilling a procedural step in the appellate process. Secondly, there should have been some life breathed into the proposed grounds by brief arguments on each of them to show (primafacie) that they are a meritorious anchor of some realistic prospects of success on appeal. 1.9 Infact the jurisprudence suggests doom for the intended appeal. I cite the case of Chimanga Changa Ltd. u Export Trading Ltd. - Appeal No. 76/2020 at J 17 to J 19, where Siavwapa, JP (then as JA) aptly guided as follows where a statute creates a right of redress by application to this Court but does not prescribe the mode of commencement: COMMENCING AN ACTION The arguments relating to whether or not the Respondent commenced the action properly when it mo11ed the Court by originating summons are clear. Equally the law governing how an action is commenced is clear as the Supreme Court of Zambia and Rules of procedure have long settled the debate. We therefore think that any arguments contrary to the clear provisions of the law are as a result of a serious misapprehension of the law. R3 We however wish to start from section 22 itself which states that "an affected person may apply to a court for an order." We are not aware of any application that is made by filing a writ of summons. Ordinarily, a writ of summons is accompanied by a statement of claim thereby presupposing contentious issues resolvable by trial. •·· Secondly, an order of the Court is obtainable at chambers without a trial. It is therefore our considered opinion that even going by section 22(1) alone, we have a clear indication of the envisaged mode of commencement ,. ~ We however, also find the case of Chishala and others 11 Laston Geoffrey Mwale among others very clear in so far as it gives meaning to Order 6 rule 1 of the High Court Rules. What comes out clearly from that judgment is that to employ originating summons to commence proceeding, one must show that it is pennitted under a rule or statute or it is a matter disposable at chambers. We have already shown that in this case section 22111 envisages commencement by originating summons. Secondly it is noted that the matter is capable of disposal at chambers. Howetier, because Order XXX rule 11 of the High Court Rules is couched in a manner that does not specifically catch the spirit of section 22 £11 of the Corporate Insolvency Act. its extension to the "law and practice for the time being observed tn England and applicable to Zambia". beckons the aid of Order 5 rule 3 of the Rules of the Supreme Court 1999 edition which provides as follows; uProceedings by which an application is to be made to the High Court or a judge thereof under any Act must be began by Originating Summons except where by these rules or by or under any Act the application in question is expressly required or authorized to be made by some other means. This rule does not apply to an application made in pending proceedings." R4 This nde expressly catches the spirit of Section 22 of the Corporate Insolvency Act which provides for an application to be made to the High Court. We therefore uphold the learned Judge's decision and find no merit in this ground and dismiss it accordingly." (Emphasis added) l.l0The said decision of the Court of Appeal was upheld by the Supreme Court in Chlmanga Changa Ltd. 11 Export Trading Ltd. - Appeal No. 3 of 2022. 1.11 Consequently, I am unable to conclude that there are any realistic prospects of success of the intended appeal which seeks to fault the decision of this Court (on mode of commencement for a statutory application under s.134(1) of the Companies Act, No. 10 of2017). This goes to the heart of the application. l. l Z Therefore, on account of both procedural !law and lack of merit, the application for leave to appeal is denied. No order is made as to costs. Dated at Lusaka this ............... da rt,t K. CHENDA Judge of The High Court RS