Pemba Lapidaries Limited and Anor v William Saunders (SCZ/8/28/2023) [2025] ZMSC 12 (21 May 2025)

IN THE SUPREME COURT OF ZAMBIA SCZ/8/28/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) WILLIAM SAUNDERS RESPONDENT Before the Hon. Lady Justice F. M. Chisanga on the 10th day of April 2025 and the 21 st day of May 2025 For the Applicants: Mrs. E . Chibambo Chomba, Mr. J Zulu, Messrs. Manda Pasi and Advocates For the Respondent: Mr. M. Ndalameta, Messrs. May and Company RULING Cases Referred to: 1. Barclays Bank Zambia Plc vs Jeremiah Njovu and 41 Others, Appeal No. 140/ 2015 2. Van Blerk vs Attorney General and Others, Appeal No. 7/2020 3. First Merchant Bank Zambia Limited vs Alshams Building Materials Limited, Appeal No. 51/2010 4. Investrust Merchant Bank Limited vs Ebrahim Yousuf (2004) ZR 28 Rl 1. Before me is an application, by Pemba Lapidaries and Pemba Trading Limited for leave to withdraw, amend and re-file record of motion out of time. The grounds on which the applicants seeks this indulgence are that by inadvertence, they omitted certain documents that should have been part of the record. The parties to the motion were also swapped. 2. Mrs Chomba, learned counsel seized with conduct of the matter on behalf of the applicants explains, in the supporting affidavit, that she omitted the affidavits that were before the single judge when she applied to vary, reverse or discharge the ruling of the single judge. She also omitted the Court proceedings. In addition to this omission, the applicants were described as respondents, and the respondents as applicants. She expresses the belief that the respondents will not suffer prejudice if the application is granted, as they will have the opportunity to oppose the motion. 3. The application is opposed by affidavit sworn by Mr Ndalameta, counsel acting on the respondent's behalf. He catalogues the progression of the matter, explaining that the respondent applied for leave to appeal against the decision of the Court of R2 Appeal, and was subsequently granted leave to appeal by a single judge of this Court. However, the applicants filed an application to the full Court to vary, discharge or reverse the grant of leave by the single judge. 4. To that application, the respondent retorted by filing a Notice of Preliminary Objection for dismissal, on 14th March 2025. The respondent's motion is pending before the full Court, and no formal response to the objection has been received from the applicants. Mr Ndalameta believes the application before me as a single judge for the applicant to withdraw the record of motion is irregular and prejudicial to the respondents and should be dismissed. 5. Mrs Chomba argues, in her written arguments, that the Court is reposed with jurisdiction to grant the application. She refers to Rule 11 SCR as well as Order 20 Rule 8 RSC, and Section 4 7 of CAP 2 of the Laws of Zambia. She has also cited Barclays Bank Zambia Pie vs Jeremiah Njovu and 41 Others1 and Van Blerk vs Attorney General and Others,2 in support of the application. R3 6. Learned counsel submits that she has also applied for extension of time within which to re-file the motion pending before the Court once withdrawn. In urging for extension of time for re filing the record of motion, Mrs Chomba refers to Section 4 7 of the Interpretation and General provisions Act, CAP 2 of the Laws of Zambia. 7. In resisting the motion, Mr Ndalameta refers to Section 4 of the Supreme Court Act. He argues that by parity of reasoning, a single judge has no jurisdiction to render a decision whose effect is to determine a motion that is pending before the full Court. Referring to the case of First Merchant Bank Zambia Limited vs Alshams Building Materials Limited, 3 learned counsel urges a reading of Section 4 in context, suggesting it is applicable even to motions pending before the full Court. 8. According to learned counsel, the rationale for this argument is that allowing the applicants to withdraw the motion pending before the Court and re-filing it would determine the preliminary objection mounted by the respondent to the applicants' motion to vary, discharge or reverse the decision of the single judge. R4 9. Moreover, it is submitted, the appeal has already been lodged by the respondent. It cannot be cause-listed on account of the motion to vary or reverse the grant of leave to appeal. Learned counsel argues that a pending appeal should not be held back on account of a defective motion. In his view, the respondent will suffer real prejudice if the preliminary objection is circumvented through the present application. Moreover, if the Court entertains the present application, the orderly administration of justice will be undermined, as observed in Investrust Merchant Bank Limited vs Ebrahim Yousuf4. 10. At the hearing, both learned counsel relied on the written arguments, augmenting orally where they considered fit. In responding to the opposing arguments, Mr. Chulu insisted that a single judge has jurisdiction to entertain an application as the one nqw before me. They do not, by doing so, make a final determination of the matter. As such, no prejudice will be suffered by the respondents, as they will have an opportunity to be heard on the motion. 11. I have duly considered the application for leave to withdraw, amend and re-file the record of motion out of time. At the time RS the applicants brought the motion before a single judge, the respondent had already filed a notice of preliminary objection, with the objective of persuading the Court to dismiss the motion to vary the decision to grant leave to appeal by a single judge. 12. Specifically, the objection mounted by the respondent questions the competence of the motion to vary the decision of the single judge, and is pending before the Court. The application to withdraw the motion and re-file it after rectifying the errors appears to be, nay, is pre-emptive. Once dealt with by a single judge, the preliminary objection pending before the Court will be forestalled. 13. I note that the application is brought pursuant to Rules 11 and 68 (1) SCR as read with Order 20 Rule 8 (1) RSC of England. Rule 11 of the SCR CAP 2 5 confers power on the Court to allow amendment of any proceedings in the Court. While 'the Court' refers to the 'Supreme Court' in Section 2, Section 4 allows a single judge of the Court to exercise any power vested in the Court, provided it does not involve the decision of an appeal. Rule 68 ( 1) confers power on a judge or the Court to allow amendment to any notice of appeal, respondent's notice, RG memorandum of appeal or other part of the record of appeal on such terms as they think fit. 14. Undoubtedly a single judge is reposed with jurisdiction to make amendments. While this rule speaks to documents that form part of an appeal and its record, there can be no question that amendment may be made to any document before the Court or a single judge, in the course of seeking permission to appeal or any other proceedings that arise in a matter before the Court or a single judge as the case may be. The only caveat for a single judge is that they may not exercise a power reserved for the Court. 15. While Section 4 SCA refers to a 'power not involving the decision of an appeal,' I believe a single judge is not permitted to decide matters that are actually pending before the Court, unless the Court itself refers a matter to them. Observe that the import of Section 4 is that a single judge exercises a power vested in the Court before a matter goes before it. After a single judge has dealt with a matter, a party may escalate it to the Court in both criminal and civil matters, by way of renewal. Nowhere in the R7 Supreme Court Act or Rules is a judge given pre-emptive power to decide a matter pending before the Court. 16. I agree with Mr Ndalameta that if I entertain the application brought by the applicants, I will assume jurisdiction not reposed in a single judge. I entertain no doubt that it is only the Court that can consider the application to withdraw the notice of motion pending before it. I, as a single judge, possess no jurisdiction to do so. I accordingly dismiss the application, with costs to be agreed and in default, taxed. Dated the .... ...... .. .... .. day of .... .. ... . 1 ····· ··· ··· ···2025 ~ r·0- Ma £= F . M. CHISANGA SUPREME COURT JUDGE RB