INDE CREDIT COMPANY LIMITED AND GREEN PARK TRANSPORT AND CONTRACTORS LIMITED AND OTHERS (Application No. 93 of 2024) [2025] ZMCA 74 (28 May 2025)

IN THE COURT OF APPEAL OF ZAMBIA Application No. 93 of 2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: Jb-- Jv! ; 0u'Rf OFAp: , ( r 28 MAY 2025 GV1L FEG1STRy I I) INDE CREDIT COMPANY LIMITED APPELLANT AND GREEN PARK TRANSPORT AND CONTRACTORS LIMITED 11T RESPONDENT REJI ANTHONY PRAJAM RESY MANNEMPLAVAN 2nd RESPONDENT 3" RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA, PATEL, JJA On 23rd March & 28th May 2025 For the Appellant: Mr. Y. S. Simukonda Messrs. Noel Simwanza L. P. For the Respondents: Mr. M. Mwachilenga Messrs. James & Doris L. P. RULING Patel, JA, delivered the Ruling of the Court. Ri Cases referred to: 1. Kalymos Processing Limited and Another v Konkola Copper Mines Plc (In Liquidation) -CAZ Application No. 60 of 2023 2. Mbazima v Tobacco Association of Zambia -SCZ/08 of 2021; ZMSC 48. 3. Rosemary Nyangu v Pamodzi Hotel Plc - SCZ ZMSC 151 4. Clever Mpoha and Savenda Management Services v ETS Rwasa Salvator- SCZ8/025/2021 5. Muleka Investments Limited and two others v Development Bank of Zambia Application No. 79 of 2024 6. Finance Bank Zambia limited v Dimitrios Monokandilos and Filandra Kouri- SCZ/8/37/20 19 Legislation & Rules referred to: 1. The Court of Appeal Rules, Statutory Instrument No.65 2016 2. The Court of Appeal Act, No.7 of 2016 3. The Supreme Court Act, Chapter 25 of the Laws of Zambia 1.0 INTRODUCTION 1.1 This is a Ruling in respect of a Notice of Motion filed on 4th October 2024 to reverse the ex-Tempore Ruling of a Single Judge, pursuant to Order X Rules 2(8) and (12) of the Court of Appeal Rules 2016' as read with section 9(b) of the Court of Appeal Act2. R2 1 P a g a 1.2 The said Motion was filed by the Appellant. We have guided numerous times that in an application or motion before the Court, Parties must ensure that they are cited correctly as the Applicant or Respondent, as the case may be, and not as Appellant and Respondent, as they may have been in the main appeal. 1.3 Subject to the observation above, we shall refer to the Applicant as Appellant as it has cited itself in the Motion. 2.0 BACKGROUND 2.1 The brief background of this case is that on 28th February 2024, we delivered a Judgement which was followed by Assessment proceedings (as ordered by our said Judgment). The Appellant being dissatisfied with the Judgment on Assessment appears to have lodged its Notice and Memorandum of Appeal. 2.2 It would appear that the Appellant failed to file its Record of Appeal and Heads of Argument within time and made its application for an extension of time. The said application was heard by a Single Judge of the Court. 2.3 The Appellant, aggrieved with the decision of a Single Judge of this Court, delivered by way of an ex Tempore Ruling dated 25th September 2024 (The Ruling), purported to file a Motion as stated in paragraph 1.1 above. 2.4 For reasons that will become evident, we have not stated the nature of the Appellant's grievance or the facts of the Motion before us. R3 I P a g e 3.0 NOTICE OF MOTION 3.1 The Motion was filed on 4th October 2024. Apart from the fact that the Motion has raised grounds attacking the Ruling of the single Judge, and to which we shall speak later, the Affidavit in support of the Motion is noted from pages 8 to 191 and makes reference to several exhibits marked 'YSS1 to YSS 14'. We have painstakingly scrutinized the said exhibits from pages 14 to 190 and are of the considered view that none of these exhibits were placed before the single Judge. (We will speak to this later in our Ruling). 3.2 The Motion also placed reliance on new Skeleton Arguments seen on pages 266 to 277. (We shall speak to these later in our Ruling). 4.0 THE OPPOSITION 4.1 The Respondents filed their Affidavit in Opposition and Skeleton Arguments on 5th November 2024. The gist of the Respondents' argument was centered on the incompetence of the Motion before us, and these have been fully examined and considered. 5.0 THE HEARING OF THE NOTICE OF MOTION 5.1 At the hearing of the Motion on 25th March 2025, it transpired that the Respondents had not served its opposing process on the Appellant. 5.2 Counsel also raised an issue with respect to the presence of Lady Justice A. N. Patel SC on the Panel and with reference to section 6 of the Court of Appeal Act2. It was their understanding that the assessment proceedings, which R4 I P a g e were the subject of the appeal before the Court, arose out of a Judgment delivered by the said Judge whilst she was Judge in Charge of the Commercial Division at the High Court in Kitwe. 5.3 We have noted however, that the Judgment of the lower Court has been the subject of an appeal before this Court, under reference number CAZ Appeal No. 31 of 2023 and which culminated in a Judgment dated 28th February 2024. To the extent that the matter was determined by a Judgment of the Court, it cannot be said that the proceedings on assessment were as a result of the Judgment of the Lower Court over which the Judge presided. 5.4 Counsel however expressed no reservation with the presence of her Ladyship on the Panel that was hearing the Motion save to make the observation above. The Court subsequently issued directions for the Appellant to be served and allowed them 10 days in which to file their Reply, if any. 5.5 The Appellant (now calling itself Applicant), has since filed its Affidavit and Skeleton Arguments in reply dated 4th April 2025, which have been fully interrogated by the Court. 6.0 ANALYSIS AND DECISION OF THIS COURT 6.1 It is cardinal to note that the Motion before us arises by way of renewal before the full Court of the Appellant's application which failed to find favour before the single judge. The Motion, as correctly submitted by the Respondents, is presented as an appeal. It is trite, and we remind litigants R5 I P a g e that the renewal application following the outcome before the single Judge is founded on section 9 (b) of the Court of Appeal Act' and Order X rule 2 (8) of the Court of Appeal Rules'. 6.2 Section 9 (b) provides as follows: "A single judge of the Court may exercise a power vested in the Court not involving the decision of an appeal, except that- (b) 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." 6.3 Order X, rule 2(8)1 of the Court of Appeal Rules under which the Motion before us has been brought 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 could under section 9(b) of the Act shall, before the date of hearing of the application by the Court, file three extra copies of the proceedings, including copies of the affidavits filed by the other party prior to the single judge's decision, for the use of the Court." (emphasis added). 6.4 We are of the considered view that the law cited above and pursuant to which the application before us is anchored, does not give appellate jurisdiction to the full Court from a decision of one of its member. What ought to be brought before us is a renewed application for the Full Court to consider. In a recent decision of the Court, rendered in the case of Kalymos R6 I P a g e Processing Limited and Another v Konkola Copper Mines Plc (In Liquidation)', we noted as follows: "In determining the application before us and the grounds thereof, we have examined the provisions of Section 9(b) of the Court of Appeal Act in relation to the powers of the full Court to vary or reverse a decision of a single Judge of the Court. An application brought before the full court under Section 9(b) of the CAR should be dealt with by way of a rehearing of the application that was before a single Judge. The Judges of the full Court consider the application as a renewed application before them as if coming to them for the first time." 6.5 We have stated on numerous occasions that an application or motion properly comes from a single Judge to the full Court by way of renewal and must be presented as such. It is not an appeal necessitating new grounds premised on the decision of the single Judge. 6.6 The Supreme Court has adequately guided that a Motion against a Ruling of the single Judge is not an appeal against the decision of the single Judge. It ought to be presented simply as a renewed application. We refer to the decision of the Apex Court in the case of Mbazima v Tobacco Association of Zambia'. 6.7 In the cited Mbazima case, the Apex Court stated as follows: "In Zambia Telecommunications Company Limited v Muyawa Liyuwa we stated as follows: - R7 I P a g e we want to state here for the benefit of litigants and advocates who appear before Judges of this Court at chambers, that when aggrieved, or dissatisfied by any decision of a single judge of this court, they come to a full court by way of renewal of the application or motion and not by way of appeal. This is so because in terms of section 4 of the Supreme Court Act, Cap 25 of the Laws of Zambia a single Judge of the court may exercise any powers of the court not involving the decision of an appeal or a final decision in the exercise of his original jurisdiction.... The renewed application is not an appeal." 6.8 The Apex Court has consistently warned all litigants that presenting a motion before the full Court that emanates from a decision of a single Judge in the form of an appeal is fatal. In Rosemary Nyangu v Pamodzi Plc' and more recently in Clever Mpoha and Savenda Management Services v ETS Rwasa Salvator4, the Supreme Court dismissed motions on account that they were erroneously presented as appeals from decisions of a single Judge as opposed to renewed applications. 6.9 In casu, the Appellant has raised four grounds challenging the Ruling of the Single Judge seen on pages 5 and 6 of the Motion and which state as follows: i. The Judge erred in law and fact when he held that there was no proof of request for the typed transcript of the assessment proceedings because no prior written request was produced on record despite there being absolutely no law to the effect that request proceeds must be made in writing. R8 I The Judge erred in law and fact when he disregarded settled jurisprudence that failure to obtain the transcript of typed proceedings is a valid reason for extension of time to comply with the rules of Court on lodgment of an appeal before this Court and further that Order XII Rule 3(2) of the Rules of the Court of Appeal, 2016 enables an Appellant to apply for extension of time within 21 days of the expiry of initial 60 days for enlargement of time. iii. The Judge erred in law and fact when against the weight of evidence he found as that the typed transcript of proceedings was available on record on the 13th of August, 2024 as exhibited "MMM5" before the expiry of the statutory 60 day periodforfiling of the Record of Appeal and thus wrongly held that the Appellant inordinately delayed to file its Record of Appeal. iv. The Judge erred in law and fact and further contradicted himself when he placed reliance on the typed proceedings exhibited "MMMS" to hold that the typed transcript of proceedings was available on record as of 13th of August, 2024 despite there being no proof of prior request but disregarded the typed transcript exhibited by the Appellant as "YSS3" dated the 17th September, 2024 on the premise that there was no proof of request and/or production thereof. 6.10 It is on the basis of the above four grounds that the Appellant entreats us to reverse the Ruling of the Single Judge. The new grounds raised in the Motion are wholly directed at faulting the Single Judge's analysis and determination of the application. In our considered opinion, the grievances are most R9 I P a g e certainly presented as an appeal anchored on the four grounds in paragraph 6.9 above. 6.11 It is also noted that the skeleton arguments filed in support of the Notice of Motion, and which are seen from pages 266 to 277 of the Record of Motion, are in fact based on attacking the Ruling of the Single Judge addressing the four grounds noted in paragraph 6.9 above. 6.12 In its Affidavit in Reply and Skeleton Arguments, the Appellant attempts to catalog a series of reasons as to why and how it fell foul of the time requirements and which it states were caused by administrative lapses. We have noted the letter of complaint exhibited and marked 'YSSi' to the affidavit of Yande Sizala Simukonda, Counsel with conduct. 6.13 In its skeleton arguments, the Appellant appears to canvass the position that its Notice of Motion is competent before the Court and has not been settled as an appeal of the decision of the single Judge. Counsel has directed our attention to a decision of the Court rendered in the case of Kalymnos Processing Limited v Konkola Copper Mines Plc (In Liquidation) and has quoted from paragraphs 9.4 and 9.5 of our Ruling. 6.14 We are of the considered view that Counsel appears to have misapprehended our observations made in that decision. Reference to 'grounds' does not suggest grounds of appeal. We have referred to our said Ruling in paragraph 6.4 above. 6.15 Counsel also appears to canvass the argument at paragraph 1.3 of its skeleton arguments in reply, "that this Court has not in any way whatsoever RiO I outlawed the advancement of grounds in support of a Notice of Motion against the decision of a single Judge but in fact makes recognition of the advancement of grounds of appeal /n support of a Notice of Motion'. 6.16 We are of the considered view and it is trite, there having been enough guidance in the jurisdiction, that as a Motion comes by way of renewal, it must as a matter of necessity, speak to the same grounds that were before the single Judge and not be premised on challenging the said Ruling of the Single Judge as though on appeal to the full Court. Paragraph 6.9 above refers. 6.17 On the facts of this case, the Appellant's arguments should have focused on the application that was the subject of the hearing before the single Judge, namely, the Summons for extension of time to file the Record of Appeal and heads of Arguments, and ought to have placed reliance on the same documents that were before the single Judge. Paragraph 3.1 above refers. 6.18 It is clear at a glance that the Affidavit that was before the single Judge was in extent of two pages and is noted at pages 194 to 195 of the Motion. The Affidavit in support of the Notice of Motion as has been noted is seen from pages 8 to 191 of the Motion. Can it then be argued that this is the same material placed before us (the Full Court), as was placed before the single Judge? The resounding answer is in the negative. 6.19 We also refer to a recent Ruling of the Court delivered in the case of Muleka Investments Limited and two others v Development Bank of Zambia' wherein we had occasion to analyze the requirements of section 9 (b) of the R11 I P a g e Court of Appeal Act' and Order X rule 2 (8) of the Court of Appeal Rules'. We also lamented in that case, as we do again, that litigants continue to ignore the mandatory rules of Court and adopt procedures alien to this Court. 6.20 We refer to a recent Ruling of the Supreme Court rendered in the case of Finance Bank Zambia limited v Dimitrios Monokandilos and Filandra Kouri6 which analysed the requirements of a Motion to set aside, discharge, vary or reverse the decision of the single judge of the Court. In that case, the Supreme Court had the opportunity to guide litigants on the requirements of section 4 b and rule 48 (4) of the Rules of the Supreme Court'. 6.21 The Apex Court, on page R17/18, speaking to the provisions above stated as follows: "It is self-evident, even from a cursory reading of sub-rule 4 of Rule 48, that a person who is aggrieved by a decision of a single Judge of this Court and who desires to have such decision varied, discharged or reversed by the (full) Court must place the some material in the nature of copies of proceedings, affidavits, that will have been placed before the single Judge prior to the single judge's decision for the use of the (full) Court. It can scarcely be disputed that, as worded, Rule 48(4) restricts the party who invokes this Rule in the sense that it does not permit or give room for the introduction of any fresh or additional materials before the (full) Court beyond whatever will have been placed before the Single Judge 'prior to' such Judge's decision". Emphasis added. R12 I P a g e 6.22 In casu, we have already noted at paragraph 6.18 above, that the actual Affidavit filed in support of the Notice of Motion, makes no reference to any exhibits. This we have discerned from the Affidavit filed in support of the application, the subject of the Ex Tempore Ruling. The Affidavit appears on pages 194/195. 6.23 Borrowing from the guidance of the Supreme Court in the cited case of Finance Bank, as well as other authorities relied on, it is trite therefore that the Appellant's Notice of Motion is incompetent and must be dismissed with costs to the Respondent, same to be taxed in default of agreement. M. J. SIAVWAPA JUDGE PRESIDENT F. M CHISHIMBA A. N. PATEL S. C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE R13 I P a g e