Lusaka Premier Health Clinic Ltd and Anor v Murray and Roberts Construction Ltd and Anor (APPLICATION NO. SCZ/8/30/2023) [2024] ZMCA 140 (11 March 2024)

THE SUPREME COURT FOR ZAMBIA APPLICATION NO. SCZ/8/30/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) I ULIC O l !'-4t ('Jinn, BETWEEN: LUSAKA PREMIER HEALTH CLINIC LTD (In Receivership) 1 ST APPLICANT FINSBURY INVESTMENT LTD 2ND APPLICANT AND MURRAY AND ROBERTS CONSTRUCTION LTD 1 ST RESPONDENT KADDOURA CONSTRUCTION LTD 2ND RESPONDENT CORAM Wood, Mutuna and Chisanga, JJS, on 6 th February 2024 and 11 th March 2024 For the 2 nd Appellant Mr. Manda M. Mwitumwa of Messrs. Manda and Pasi Advocates For the 1st and 2nd Respondent: Mr. C. Sianondo and Mr. J. Milenji of Messrs Malambo and Company RULING Mutuna JS, delivered the ruling of the Court ~ Rl ~ Cases Referred To: 1. Afritec Asset Management Company Limited and Another v. The Gynae and Ante-natal Clinic and Another, SCZ Judgment No. 11 of 2019. 2. Manal Investments Limited v. Lamise Investment Limited (2001) 3. 4. ZR24 Nicholas Kiptoo Arop Koriv Solet v. Independent Election and Boundaries Commission and 7 Others, Application No. 16 of2014 Bidvest Food Zambia Limited and Others v. CAA Import and Export Limited Appeal No. 56 of 2017 Legislation Referred To: 1. Court of Appeal Act No. 7 of 2016; 2. Court of Appeal Rules, S. I. No. 65 of 2016; 3. Supreme Court (Amendment) Act No. 24 of 2016; 4. Supreme Court Act Cap 25. Introduction 1. This motion follows the refusal by a single Judge of this court to grant a stay of execution, pending appeal, of a judgment of the High Court handed down on 24 th April 2023. 2. The application came before the single Judge of this court by way of a motion renewing the decision of the Court of Appeal refusing to stay execution of the judgment. ~ R2 - Background 3. The facts leading up to this motion as they are relevant to its determination are that following a hearing of the matter before a High Court Judge, the Judge delivered a judgment in favour of the Respondents on 24th April 2023. The Applicants were unhappy with the judgment prompting them to appeal to the Court of Appeal. 4. After the Applicants filed the notice of appeal, they applied to the High Court Judge for a stay of execution of the judgment. The application was accompanied by a draft ex-parte order for signature of the Judge. 5. When a legal assistant in the firm of lawyers representing the Applicants followed up on the status of the application, he was informed by the Marshal to the Judge that the High Court Judge had refused to sign the order staying execution. The Applicants then launched an application before a single Judge of the Court of Appeal by way of renewal of the application which was before the High Court Judge. - R3 - 6. The application was allocated to Patel JA who after hearing the matter held that the application was premature because there was no decision rendered by the High Court Judge. She also stated, by way of obiter dicta, that the record revealed that no permission to appeal to the Court of Appeal had been granted by the High Court against the decision complained of. 7. The decision by Patel JA prompted the Applicants to write to the Marshal to the High Court Judge insisting on a written decision of the court dismissing the stay of execution. The Marshal responded by way of letter dated 28 th June 2023 in which he indicated that execution had been concluded in the matter by way of a vesting order, as such, there was nothing to stay. 8. Armed with the letter from the Marshal, the Applicants approached the Court of Appeal once again, by way of renewal of the application for a stay requesting it to grant a stay of execution of the judgment. This time, the application was allocated to Chashi JA who heard and dismissed it because it was predicated on an appeal filed without the permission of the High Court. ~ R4 ~ • 9. The Judge went on to declare that the notice and memorandum of appeal filed in the Court of Appeal, contesting the judgment of the High Court dated 24th April 2023, was a nullity. He also stated that despite the decision by Patel JA, there was still no evidence on record to show that the Applicants were granted permission to appeal to the Court of Appeal. 10. The Applicants escalated the application to the full Court which essentially upheld the decision by Chashi JA and stated that the decision by Patel JA had not been challenged hence, the only decision they could consider was by Chashi JA. The Applicants escalated the application to a single Judge of this court. The motion before the single Judge of this Court 11. The Applicants launched the motion by way of an ex-parte summons for stay of execution, supporting affidavit and skeleton argument. A perusal of the affidavit in support, reveals that the Applicants anchored their application on the following grounds: - ~RS~ 11.1. The motion was suitable for the grant of a stay of execution because the grounds and surrounding circumstances require determination of the matter on the merits; 11.2. There are several appeals pending which affect the subject matter of the dispute, therefore, it is necessary to maintain the status quo; and, 11.3. No prejudice would be occasioned to the Respondents. 12. When the application was tabled before Hamaundu JS he granted an ex-parte order staying execution on 27th October 2023 with a return date for inter parties hearing on 20th November 2023. He also identified two issues for determination as follows: - 12.1. Whether the Supreme Court after the establishment of the Court of Appeal has jurisdiction to entertain, or indeed, grant renewed interlocutory applications of matters that are not yet formally before the Court; and, - R6 - 12.2. Whether, against the peculiar background of this case, the Supreme Court has jurisdiction to entertain the application. 13. After identifying the issues, the Judge noted that there was a statutory provision which prescribes how matters are supposed to be presented to our court which he would like to revisit. This was along with our decision in the case of Afritec Asset Management Company Limited and Another v. The Gynae and Antenatal Clinic and Another1 • He accordingly adjourned the hearing to 20th November 2023. 14. On the hearing day, counsel for the Applicants argued that the motion was properly before Hamaundu JS because in terms of Section 4 of the Supreme Court Act, a single Judge of this Court has jurisdiction to exercise any power vested in the Court as long as it is not a matter involving a decision on appeal. 15. Counsel argued that this court interpreted the meaning of Section 4 in the Afritec Asset Management1 case when it distinguished between applications which require permission to appeal and those which can be renewed before it without ~ R7 ~ such permission. Concluding arguments on the point, counsel submitted that any application which is interlocutory in nature qualifies to be renewed before this court. The matter before the court being a stay of execution of a judgment 1s interlocutory in nature and this qualifies for renewal. 16. Counsel proceeded to argue the substantive application for a stay. In doing so he began by acknowledging that the High Court Judge did not hear the Applicants' application for a stay. He went on to submit that if the stay of execution is not granted, the substantive appeal will be rendered nugatory if successful. To this end, it was counsel's argument that the appeal has reasonable prospects of success as revealed by the grounds of appeal set out in the memorandum of appeal. The Applicants had, therefore, surmounted the test for grant of a stay of execution. Counsel set out a number of our decisions in which we stated that our court is entitled to preview the prospect of success of the appeal in considering an application for a stay of execution. 1 7. The next limb of counsel's argument was that the application was of utmost urgency and he drew the attention of the Judge - RS - to a passage from the Afritec Asset Management 1 judgment as follows: "The time has come for us to treat applications for an injunction emanating from the High Court with the urgency they deserve. This is not unusual because we already deal and treat applications for a stay of execution and leave to appeal from the High Court with the urgency they deserve." 18. As regards the decision by the Court of Appeal that prior to lodging the appeal the Applicants should have sought permission, counsel argued that this was contrary to a number of decisions. He argued that there is no need for permission to appeal to be sought before filing a notice and memorandum of appeal against a decision delivered in open court by the High Court. 19. The last argument by counsel addressed the issue of jurisdiction of a single judge of the Court of Appeal. He referred the Judge to Section 9 of the Court of Appeal Act and Order 10 Rule 2 (8) of the Court of Appeal Rules. 20. The crux of the arguments by counsel for the Respondents was that since the motion before the single Judge arose from a decision of the full bench of the Court of Appel, the Applicant - R9 - ought to have sought permission to appeal prior to launching the motion before the Judge in line with Section 24 (b) of the Supreme Court (Amendment) Act No. 24 of 2016 as read with Section 13 ( 1) of the Court of Appeal Act. Counsel re enforced the argument by contending that the decision of the Court of Appeal was a judgment as defined by Section 2 of the Court of Appeal Act, therefore, it was imperative to obtain permission to appeal before contesting it. 21. Counsel's arguments went on to address the powers of a single Judge of this Court derived from Section 4 of the Supreme Court Act. He submitted that the power vested in a single Judge by this section can only be exercised after permission to appeal has been granted. Subsequently, in terms of Rule 40 (1) of the Supreme Court Rules, a party is required to file a notice of appeal to initiate the appeal process. 22. It was counsel's argument that the jurisdiction of a single Judge of this court is derived from the filing of a notice of appeal. Counsel drew the Judge's attention to a decision of the Kenyan Supreme Court in the case of Nicholas Kiptoo Arop Koriv Solat v. Independent Electone & Boundaries Commission - RlO- • and 7 Others, Application Number 16 of 2014 which states in part as follows: - "A Notice of Appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre-requisite." 23. Counsel advanced his arguments by analyzing the Afritec Asset Management 1 case which the Applicants relied upon. He concluded that the case is distinguished from this case because that the appeal was lodged in 2015 before the establishment of the Court of Appeal. Further, 1n the Afritec Asset Management 1 case, a notice of appeal was filed in the Supreme Court from a decision of the High Court. Stemming from this, the Supreme Court had jurisdiction. 24. As for the question of permission to appeal in respect of the judgment of the High Court, counsel argued that the issue along with the question of competence of the appeal was addressed in the ruling by Patel JA which ruling did not progress to the full Bench of the Court of Appeal. He, therefore, urged Hamaundu JS not to consider the arguments. - Rll - • 25. Counsel concluded arguments by considering the merits of the application for a stay. He argued that it is not enough for the Applicants to state that they would be prejudiced if the stay is not granted. According to counsel, for an applicant to be successful he must demonstrate that the appeal has prospects of success. He set out a number of decisions by this court in support of that contention. Decision by the single Judge 26. The learned single Judge began his consideration of the application by explaining the background to the Afritec Asset Management 1 case upon which the Applicants had anchored their application. He stated that the appeal came to our court before 2016, prior to the establishment of the Court of Appeal. 27. This, he stated, was during the period when appeals from the High Court lay directly to our court with interlocutory applications for stays of execution and leave to appeal coming to us by way of renewal. Any contest against decisions of the High Court involving interlocutory applications came to us by way of appeal because of our decision in the case of Manal ~ R12 - • Investments Limited v. Lamise Investment Limited2 in which we explained the effect of Section 4 of the Supreme Court Act. 28. The Judge concluded his explanation by stating that the court lamented the delay it took in disposing of appeals arising from interlocutory injunctions and the adverse effect this had on the subject matter of the dispute. He explained further that it was for this reason that we were prompted to revisit our decision in the Manal2 case to the extent that decisions on interlocutory injunctions should come to us or the Court of Appeal by way of renewal and not appeal and that they should first be dealt with by a single Judge. 29. In terms of the situation post the creation of the Court of Appeal, Hamaundu JS explained that the situation now is that all appeals from interlocutory or final decisions of the High Court are to be directed to the Court of Appeal. This includes interlocutory applications which used to be directed at this Court by way of renewal. 30. The Judge went on to say that the Court of Appeal Act restricts access to our Court by imposing the requirement of permission to appeal. The facts in paragraph 29 notwithstanding, the Judge - R13 - • explained that there are still certain provisions of the law which provide for appeals from certain decisions of the High Court to lie directly to this court as an appellate court of first instance. He gave an example of proceedings in the High Court under Part III of the Constitution and said the position has not changed in that appeals from such decisions lie to this court. Likewise, this court still entertains interlocutory applications from the High Court in such matters by way of renewal. 31. To this extent, Hamaundu JS, clarified that 1n so far as the passage quoted from the Afritec Asset Management 1 case refers to the Supreme Court, it should be restricted to those matters whose appeal still lies directly to this court. For that reason, he agreed with the argument advanced by counsel for the Respondents that the Court of Appeal Act has prescribed how matters from the Court of Appeal come to this Court which is through permission to appeal. 32. The Judge went on to consider the provisions of Sections 2 and 13 of the Court of Appeal Act along with our decision in the case of Bidvest Food Zambia Limited and Others v. CAA Import and Export Limited4 as follows: - - R14- • 32. 1. Decisions of the Court of Appeal, whether they are final or interlocutory in nature can only be brought to the Supreme Court by way of appeal; 32.2. Such decisions can only be appealed against to the Supreme Court after permission to do so is granted, and; 32.3. Even if the decision sought to be assailed is interlocutory the same restriction, on permission to appeal in accordance with Section 13 (2) of the Court of Appeal Act apply, such that only deserving interlocutory appeals will be allowed into the Supreme Court. 33. The Judge concluded by stating that the decision from which the motion before him arose was an interlocutory application in the Court of Appeal. As such, there was need for the Applicants to obtain permission to appeal. He concluded that the application before him was incompetent as it was presented by way of renewal and accordingly dismissed it with costs. Application before this Court and arguments by counsel 34. The second Applicant is aggrieved with the decision of the single Judge of this court and has launched this motion by way of ~ RlS ~ • renewal of the application which was before our brother Hamaundu JS. 35. The arguments advanced by counsel have not changed. Counsel for the Second Applicant repeated his argument that the motion is properly before us because it complies with our decision in the Afritec Asset Management 1 case. Further, the stay of execution should be granted because the Respondents will not be prejudiced. 36. The Respondents reiterate that since the establishment of the Court of Appeal, a matter can only come before us by way of appeal following the grant of permission to appeal. The procedure for renewing an application before this court was only applicable when appeals from the High Court were directed at this court. Further, an applicant for a stay of execution pending appeal must show that the appeal has reasonable prospects of success. It is not enough to say that the stay of execution will not prejudice the Respondents. 37. At the hearing we engaged counsel for the Second Applicant on the 'ruling' delivered by the High Court Judge which was the subject of these proceedings and he conceded that there was no ~ R16 ~ • formal ruling issued by the Judge dismissing the application for a stay of executing pending appeal. He also conceded that in view of this fact the best avenue for his client was to appeal against the High Court Judge's failure to deliver a formal ruling. We revert to this later in our determination of this application. Decision of the Court 38. Following our consideration of the arguments by counsel and record of the motion we are inclined to determine this application by considering whether it is competent. This is the position we have taken because the background reveals that the High Court Judge did not at any time hand down a decision on the Applicants' quest for a stay of execution. 39. To recap, the facts of this case are that the High Court Judge declined to sign the ex-parte order filed by the Applicants. In addition, when he was prompted to hand down a formal ruling after the decision by Patel JA, he instructed his Marshal to write a letter to the parties revealing his mind on the issue. This was by no means an order or ruling as envisaged by that and other courts. Therefore, there was nothing in the form of an order or ~ R17 ~ • ruling which the Applicants could escalate to the Court of Appeal by way of renewal. 40. Counsel for the Applicants as we have stated earlier conceded and did agree that his best option at the time was to appeal against the High Court Judge's failure to render a formal order or ruling. Conclusion 41. The decisions we have reached in the preceding paragraphs leave us with no option but to conclude that the application before the Court of Appeal was incompetent. Further, the escalated applications to this court before us and the single Judge were equally incompetent for the same reasons. 42. We accordingly dismiss it with costs. These will be taxed 1n default of agreement. A. SUPREMECOU . . . . . . . . . . . . . . . . . . . . . . . . . . r"--. - . . ..... F. M. CHISANGA SUPREME COURT JUDGE DGE ~ R18 ~