ZCCM Investments Holdings Plc v First Quantum Minerals Limited and Ors (SCZ/ 8 / 20/2021) [2024] ZMSC 34 (4 October 2024)

J1 IN THE SUPRME COURT OF ZAMBIA SCZ/ 8 / 20/2021 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: o 4 OCT 2021 ZCCM INVESTMENTS HOLDINGS-PLC ; : ;APPLICANT AND FIRST QUANTUM MINERALS LIMITED 1ST RESPONDENT FQM FINANCE LIMITED PHILIP K. R. PASCALL ARTHUR MATHIAS PASCALL CLIVE NEWALL MARTIN R. ROWLEY KANSANSHI MINING PLC 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT STH RESPONDENT 6TH RESPONDENT 7TH RESPONDENT The Hon. Mr. Justice Nigel K. Mutuna on 4 th October 2021 For the Applicant For the 1st and 2 nd Respondent For the 3 rd , 4 th , 5 th and 6th Respondents For the 7th Respondent Mr. B. C. Mutale SC of Messrs Ellis and Co. Mr. S. Sikota SC and Mr. K. Khanda, of Messrs Central Chambers Mr. M. Chilufya of Messrs Mulenga Mundashi Legal Practitioners Mrs. M. Namwila - Mwala of Messrs Corpus Legal Practitioners RULING Cases ref erred to: 1) BIDVEST and others v Car Import and Export Limited SCZ judgment number 56 of 2017 J2 2) Savenda Management Services Limited v Stanbic Bank Zambia Limited SCZ judgment number 10 of 2018 3) R v Secretary of State ex parte Eastway (2001) 1 ALL ER 27 4) Hermana Phillipus Stayn v Giovanni Greechi-Ruscona Application No. 4 of2012 5) Geogas SA v Trammo Gas Limited, the Bleared (1991) 2 ALL ER 6) Natasha Nawa v The People 9/2/2019 7) Kenya Plantation and Agricultural Workers Union v Kenyan export Floriculture, Horticulture and Allied Workers Union (Keghan) Represented by its Promoters David Benedict Omulama and 9 others (2018) eklr Civil Application No. 5 of 2017 8) S v Smith 2012 (1) SACR 365(SCA) 9) Antonio Ventriglia and Manuela Ventriglia v Eastern and Southern African Trade and Development Bank SCZjudgment No. 13 of2010 10) Mutantika and Another v Chipungu SCZ judgment No. 13 of 11) Gleeson V. J. Wippell and Company (1977) ALL ER 54 12) Rosemary Nyangu v Pamodzi Hotel Plc SCZ/8/08/2021 Legislation referred to: 1) Court of Appeal Act, No. 7 of 2016 2) Constitution of Zambia (Amendment) Act No. 2 of 2016 3) The Supreme Court Practice, 1965 Works referred to: 1) Law of Affidavits, by P. M. Bakshi, 2 nd edition, Lexis Nexis Butterworths Wadhwa, Nagpur, India Introduction 1) The Applicant has moved me by way of summons and supporting affidavit seeking permission to appeal to the Supreme Court against a judgment of the Court of Appeal dated 13th January 2021. J3 2) The grounds upon which permission is sought are that the appeal: raises points of law of public importance; has reasonable prospects of success; and, there are other compelling reasons for the appeal to be heard. 3) In presenting the application, the Applicant has relied on an affidavit sworn by one Lombe Mbalashi and skeleton arguments. 4) The 3 rd , 4 th 5 th and 6th Respondents, answered the Applicant's application by way of skeleton arguments filed on 27th August 2021, and the 7 th Respondent by way of skeleton arguments on even date along with an affidavit in opposition. 5) By a motion filed on 30th August 2021, the Applicant raised objection to the 7th Respondent's affidavit in opposition and sought an order that paragraphs 16, 17, 18, 19, 21, 26, 29, 31, 32, 33, 35, 36 and 37 be expunged from the record because they allegedly contain extraneous matters by way of legal arguments, objections, opinions and conclusions. J4 6) When I received the record, I appointed the 1st day of September 2021 at 09:00 hours as the day and time for hearing of the application. I also called for a prehearing meeting with counsel on 31 st August 2021 at 08:00 hours for purposes of agreeing how the application would be heard in view of the COVID 19 protocols put in place by the Judiciary whose main theme is social distancing. Pursuant to the said pre-hearing meeting and with the consent of the parties, I directed as follows: 6.1 there would be no formal hearing as the parties would rely on the documents filed and to be filed; 6.2 the Applicant's preliminary objection would stand as a partial reply to the 7 th Respondent's affidavit in opposition and skeleton arguments; 6.3 the 1st and 2 nd Respondents to file their affidavits in opposition and skeleton arguments on 6th September 2021; 6.4 The 3 rd , 4 th , 5th and 6th Respondent to file their affidavit in opposition on 6th September 2021; JS 6.5 the 7 th Respondent to file a supplementary affidavit in opposition and arguments on 6 th September 2021; 6.6 the Applicant to file the affidavit/ s in reply and skeleton arguments in reply on 13th September 2021; 6.7 I would deliver my ruling on or before 13th October 2021. Background 7) The backdrop to this application is that the Applicant had commenced an action before the High Court under cause number 2016/HPC/0515 against the seven Respondents seeking relief by way of a derivative action as shareholder for and on behalf of the 7 th Respondents. 8) The Applicant was also a party to arbitration proceedings commenced by Kansanshi Holdings Limited, and counterclaimed in a derivative action as shareholder in the 7 th Respondent for and on behalf of the 7 th Respondent. The arbitration proceedings progressed quicker than the court proceedings and a partial final award was issued pursuant to which the Applicant's claim was dismissed. J6 9) The dismissal of the Applicant's claim in the partial award, prompted the 7 th Respondent to apply in the High Court matter for an order to dismiss the action on the grounds that it was an abuse of court process, and amounted to a multiplicity of actions because the subject matter of the dispute was res judicata. It contended that the dispute before the High Court had been determined in the arbitration proceedings. 10) In a ruling dated 23 rd March 2020, the Learned High Court Judge upheld the preliminary objection and dismissed the matter. This prompted the Applicant to appeal to the Court of Appeal against the decision. The 3rd, 4th, 5th and 6th Respondents cross appealed. 11) In a judgment dated 13th January 2021, the Court of Appeal dismissed the appeal with costs and allowed the cross appeal by the 3 rd , 4 th 5 th and 6 th Respondents. The Applicant was dissatisfied with the decision of the Court of Appeal and launched an application for permission to appeal to the Supreme Court. J7 12) The grounds upon which permission to appeal was sought were that: the intended appeal raises a point of law of public importance; the appeal had reasonable prospects of success; and, there are some other compelling reasons for the appeal to be heard. 13) The intended grounds of appeal upon which the application in the Court of Appeal was anchored were contained in a draft memorandum of appeal filed along with the other documents in support of the Application. Decision by the Court of Appeal 14) The Court of Appeal delivered its decision on 29th July 2021 dismissing the application for permission to appeal. It held that the Applicant did not satisfy the threshold under Section 13 of the Court of Appeal Act. Application before me 15) The Applicant has escalated the application to me by way of renewal of the application which was made before the Court of Appeal. It has justified the application with the same contentions raised in the Court of Appeal and intended grounds of appeal as follows: J8 15 .1 The court below erred in law and in fact in holding that the claims and issues in the arbitration between the Appellant, Kansanshi Holdings Limited and the 7 th Respondent and those 1n cause number 2016/HPC/0515 are the same; 15.2 The court below erred in law and in fact when it held that the London arbitration proceedings and cause number 2016/HPC/0515 involved the same parties; 15.3 The court below erred in law and in fact when it held that the 1st to 6 th Respondents are privies of the 7 th Respondent for purposes of enabling the latter raise a plea of res judicata and issue estoppel; 15.4 The court below erred in law and in fact when it held that the provisions of Section 331 of the Companies Act No. 10 of 2017 did not apply to cause number 2016/HPC/0515; 15.5 The court below erred in law and in fact when it held that the 7th Respondent was not barred from making the application to dismiss the action; J9 15.6 The court below erred in law and in fact when it held that it was unprocedural for the Appellant to take any steps in the action, and for the High Court to entertain any other steps, pending the determination of the application for extension of time in which to apply for leave to continue a derivative action; 15.7 The court below erred in law and in fact when it awarded the 1st , 2nd and 7 th Respondents costs of the cross-appeal. The Evidence deployed by the parties 16) The Applicant's evidence in support of the application was in the affidavit sworn by one Lombe Mbalashi, counsel and Deputy General Counsel of the Applicant. He set out in great detail the background leading up to the application before me and the basis upon which the application was launched. 17) The witness then contended that the decision of the Court of Appeal omitted to address the following submissions made by the Applicant that: J10 17.1 a procedural order is not a final and conclusive judgment so as to be relied on for purposes of res judicata; 17.2 the corporate relationship between parent and subsidiary, and financial interest, cannot be sufficient to establish privity of interest; 17.3 a mere commercial interest in the outcome of litigation is likewise insufficient to establish privity; and, 17.4 the real defendant to a derivative action cannot be said to be privies of the nominal defendant for purposes of res judicata as the very context of a derivative action indicates that the interests of a nominal defendant and those of its 'controlling mind and will' are opposed. It was contended that the Supreme Court has not yet pronounced itself on the foregoing issues. 18) In an apparent attempt at showing that the intended appeal raises points of law of public importance, the witness explained the Applicant's status in the 7th J11 Respondent and that it holds shares in the 7 th Respondent on behalf of the Government of Zambia. He explained further that the Applicant is a State institution answerable to the people of Zambia and the action was commenced with the intention of ensuring that the 1st and 6 th Respondents management of the 7 th Respondent complies with good corporate governance ethos. 19) The witness went on to state that the issues 1n the intended appeal: 19.1 present an opportunity for the Supreme Court to clarify the law and development of jurisprudence; 19.2 affect a large number of people in the business sector, as well as litigants in general; 19.3 are relevant to the practice, procedure and administration of the law, the proper administration of justice and public interest; 19.4 are destined to continually exercise the judicial organs of the Republic of Zambia; and, 19.5 are an opportunity for the Supreme Court to guide members of the general public in the conduct of J12 business, commercial investment and alternative dispute resolution. 20) In conclusion the witness stated that a decision of the Supreme Court on the issues raised in the intended appeal will guide litigants and other courts on the weight to be attached to foreign procedural and final decisions on matters involving the same issue once they are registered in Zambia. Further, the decision of the Supreme Court on the matter is likely to have a bearing on Government policy regarding foreign investment and the involvement of State institutions in the mining sector. Consequently, the matter had aroused public curiosity, interest and media coverage both local and international as a result of the Applicant and 7 th Respondent's contribution to the economy of the country. 21) The Affidavit evidence opposing the application filed by the 7 th Respondent was sworn by one General Godwin Kingsley Chinkuli, the country manager of the 7th Respondent. He traced the background to the matter leading up to the application before me. J13 22) The deponent also stated what he had been informed by counsel and he believed to be true regarding the intended appeal. He, in this, regard, stated that arising from what he had been informed by counsel for the 7 th Respondent, he verily believed that: 22.1 the proposed grounds of appeal do not raise points of law of public importance, nor do they demonstrate any prospects of success or compelling reasons to warrant the grant of permission to appeal to the Supreme Court; 22.2 as a consequence of 22.1, the Court of Appeal was on firm ground when it dismissed the Applicant's application for permission to appeal and that the Court of Appeal addressed all issues presented before it· ' 22.3 there are no novel issues raised by the intended appeal to warrant the grant of permission to appeal; 22 .4 certain paragraphs of the affidavit in support contain new evidence and information which was not considered by the trial court and Court of Appeal, J14 they are, as a result, unrelated to the nexus of the pending application; 22.5 the 7 th Respondent reserves the right to set aside the partial final award rendered in the arbitration of the matter and that the same has no bearing on the application for permission to appeal; 22.6 the status of the Applicant and 7 th Respondent, vis a vis, the Zambian Government and people of Zambia has no bearing whatsoever on the application for permission to appeal; 22.7 the issues raised in the intended appeal are of a private nature governed by the law of contract and subject to determination by arbitration proceedings as evidenced by the partial final award; 22.8 the dismissal of the Applicant's case in the High Court and the appeal to the Court of Appeal attests to the sanctity of arbitration as the preferred choice of dispute resolution; and, 22.9 the Applicant has failed to satisfy the threshold for the grant of permission to appeal. J15 23) The initial affidavit in reply to the 7 th Respondent affidavit in opposition was the affidavit in support of notice of preliminary objection, sworn by one Yadika Eleanor Mkandawire, the General Counsel of the Applicant. She objected to certain paragraphs of the affidavit in opposition on the ground that they amounted to sharing the legal opinion offered to the 7 th Respondent by its counsel and opinions on the case by both the deponent and counsel. 24) The other affidavit in reply was also sworn by Lambe Mbalashi. It by and large addressed the issues that are meant to be argued at the intended appeal. For that reason, I have not summarized that portion as I would be straying into determination of the intended appeal. The remainder of the affidavit addresses facts that were already referred to in the affidavit in support. Arguments by counsel 25) In the skeleton arguments Mr. B. C. Mutale SC, counsel for the Applicant, began by setting out the background to the matter. I have not summarized this portion of counsel's arguments because they are not relevant to the matters J16 which I have to consider. The arguments as they are relevant to this application begin by setting out the provisions of the law pursuant to which the application is anchored and the powers vested in me in this regard. 26) Mr. B. C. Mutale SC then proceeded to interpret the provisions of Section 13(3) of the Court of Appeal Act with reference to the decisions of the Supreme Court in the cases of BIDVEST and others v Car Impart and Export Limited1 and Savenda Management Services Limited2 . He argued that these two cases reveal that, for an applicant to qualify for the grant of permission to appeal, he must show that the issues in the appeal and not the proposed grounds of appeal, raise a point of law of public importance. Further, it is enough for a party seeking permission to appeal to satisfy only one and not all the tests set out in Section 13(3) of the Court of Appeal Act to qualify for the grant of permission to appeal. 27) Counsel advanced his argument by explaining the three tests beginning with point of law of public importance. He did this by reference the BIDVEST1 case in which the J17 Supreme Court explained what constitutes a point of law of public importance. 28) Mr. B. C. Mutale SC then referred to the provisions of section 13(3) of the Court of Appeal Act with reference to the other two tests of reasonable prospects of success and other compelling reason for the appeal to be heard. He concluded that as revealed by the affidavit evidence, the intended appeal satisfies all the three tests, consequently, permission to appeal must be granted. 29) In relation to the preliminary objection to certain paragraphs in the 7 th Respondent's affidavit in opposition, Mr. B. C. Mutale SC argued that the paragraphs contain extraneous matters by way of legal arguments, objections opinions and conclusion. He contended that the paragraphs offend Order 41 rule 5 of the Supreme Court Practice, 1965 (White Book) as some of the facts alleged by the deponent are those that he cannot prove from his own knowledge. Counsel also referred to the English case of Gleeson v J. Wippel 11 in which the judge objected to receiving affidavit evidence which contained the opinions J18 of Queen's Counsel and an article published in a journal. I was urged to uphold the preliminary objection and allow the application for permission to appeal. 30) Counsel for the 1st and 2 nd Respondents, Mr. S. Sikota SC and Mr. K. Khanda began by explaining the origins of the application before me. They said that it arose from a decision of the Court of Appeal refusing permission to appeal and was, therefore, a renewal of the said application. 31) Counsel advanced their arguments by contending that pursuant to Article 125(2)(a) of the Constitution (as amended), the appellate Jurisdiction of the Supreme Court is not invoked as a matter of right. That the Court of Appeal Act under section 13(3) provides for appeals to the Supreme Court from decisions of that court and that an application for permission to appeal has to satisfy one or all the grounds set out in Section 13(3) if permission to appeal is to be granted. Further, the Court of Appeal still retains the discretion to refuse permission to appeal J19 notwithstanding that the threshold is met because the word "may" and not "shall" is used in the Section. 32) By way of reinforcement of their arguments, counsel quoted passages from three foreign decisions as follows: R v Secretary of State ex parte East-way3 , Hermama Phillipus Stayn v Giovanni Greechi-Ruscone4 and Geogas SA v Trammo Gas Limited, the Bleared5 • These cases set out the standard to be met in the United Kingdom and Kenya for an appeal to be escalated to the Supreme Court in those jurisdictions. Counsel concluded arguments on this point by stating that to satisfy the test of public importance, the issue in the intended appeal must have some elements of novely in it or uncertainty requiring adjudication or clarification in an area of the law, not only for purposes of that particular case, but also for the benefit of cases to come before the courts in future. In addition, the issue must be significant in general and beneficial to the public at large. 33) Counsel went to great length at quoting passages from the BIDVEST1 case and the decision of the Supreme Court in J20 the case of Natasha Nawa v The People6 which rationalize the need to limit appeal to the Supreme Court. They concluded by analyzing the issues arising from the grounds of the intended appeal and contended that they do not meet the threshold of general importance to compel me to grant permission to appeal to the Supreme Court. Counsel emphasized that the fact that the Applicant alleges that the matter has been widely covered by local and foreign media does not satisfy the test of point of law of public importance. They, in this regard, referred to the Kenyan case of Kenya Plantation and Agricultural Worker Union v Kenya Export Floriculture, Horticulture and Allied Workers' Union (Kefhan) represented by its Promoters David Benedict Omulama and 9 others7 . The principles articulated in this case are on all fours with those in the BIDVEST1 case. I have, therefore, not reproduced them. 34) On the issue of the appeal having reasonable prospects of success, counsel went to great length at arguing the merits and demerits of the intended appeal. I have, for the J21 obvious reason that at this stage I am not called upon to determine the intended appeal, not reproduced the arguments. Suffice to say that counsel argued that both the High Court and Court of Appeal dealt with the issues presented before them well, hence the prospects of success of the intended appeal are remote. 35) Last was the issue of some other compelling reason for the appeal to be heard. Counsel argued that the Applicant has not advanced any compelling reason for the Supreme Court to hear the intended appeal. The reliefs claimed by the Applicant have been adjudicated upon extensively and there are no new triable issues or questions of importance that require further deliberation by the Supreme Court. 36) I was urged to dismiss the application. 37) Counsel for the 3rd , 4 th , 5th and 6th Respondents, Mr. M. Chilufya like counsel before him, began his arguments by setting out the background to the application. He then set out the issue for determination as being whether the Applicant had met the threshold set out in Section 13(3) of the Court of Appeal Act. J22 38) Counsel proceeded to consider the threshold of reasonable prospect of success and argued that the test set out in the BIDVEST1 case is that permission to appeal will be granted where the appeal has real, as opposed to fanciful prospects of success. He argued that the Applicant is by law required to demonstrated that the intended appeal has reasonable prospects of success and that it has failed to do so. 39) Mr. Chilufya advanced his arguments by defining what constitutes "reasonable prospects of success" by reference to the South African case of S v Smith8 in which the court held that the test postulates a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. He argued that the Court of Appeal was on firm ground when it held that the intended appeal had no prospects of success and that the Applicant has not demonstrated how the intended appeal has reasonable prospect of success. )23 40) In addition, counsel set out the rationale for the high standard to be met in considering whether or not to grant permission to appeal in accordance with the decision of the Supreme Court in the BIDVEST case. He also went to grant length at setting out all the grounds of the intended appeal and arguing against their merits. In so doing, he substantially argued the intended appeal and I have, for that reason, not recounted his arguments. 41) On the issue of the intended appeal raising a point of law of public importance, Mr. Chilufya set out the test in the BIDVEST1 case and concluded that the Applicant has failed to satisfy the test in the said case. Further, the Applicant's intended appeal relates to issues of res judicata, a concept that relates to law which is well settled in Zambia. 42) The last point which Mr. Chilufya submitted on was the issue of the intended appeal raising compelling reasons for it to be heard. He once again referred to the test set out in the BIDVEST1 case on this issue and concluded that in view of the fact that the intended appeal is meant to J24 address res judicata, an issue which is well settled in Zambia, there is no compelling reason for the intended appeal to be heard. Further, the Applicant has not demonstrated that there are facts or any changes in circumstances warranting the Supreme Court to depart from existing precedents. 43) I was urged to dismiss the application. 44) Like counsel before her, Mrs. M. Namwila- Mwala, counsel for the 7 th Respondent, began by explaining the background to the application and identified the issue for determination as being whether the Applicant had satisfied the threshold set by Section 13(3) of the Court of Appeal Act. 45) Mrs. Namwila - Mwala then explained the effect of the creation of the Court of Appeal with reference to appeals to the Supreme Court and quoted extensively from the decision of the Supreme Court in the cases of BIDVEST1 and Savenda Management Services Limited v Stanbic Bank Zambia Limited2 . J25 46) Counsel advanced her arguments by addressing the issue of reasonable prospects of success and argued in detail on the issues which were before the Learned High Court Judge and concluded that there is ample authority which reveals that the Learned High Court Judge and the Court of Appeal were on firm ground when they ruled against the Applicant. She then argued the issue of point of law of public importance with reference to the BIDVEST1 case and concluded that the allegation by the Applicant that it commenced the High Court action on behalf of the people of Zambia, and, therefore, it is a matter of public importance is untenable. According to counsel, the Applicant initiated both the arbitral and court proceedings in its capacity as an entity with a vested financial interest and stake in the 7th Respondent and not a goodwill gesture for the people of Zambia. This is an action the 7th Respondent could have brought on its own behalf, as such, the appeal is not of public importance. 4 7) In regard to the issue of compelling reasons for the appeal to be heard, once against, counsel quoted a passage from J26 the BIDVEST1 case. She argued that this ground anticipates a situation where the Supreme Court wishes to revisit an earlier decision. For this reason, counsel contended that the Supreme Court has sufficiently pronounced itself on the principle of res judicata, which is what the intended appeal raises, and there has not been any changes in circumstances which would warrant the Supreme Court departing from existing precedent. 48) Counsel argued further that the law on res judicata is very clear as demonstrated by a plethora of decisions of the Supreme Court and requires no further clarification. 49) In the supplementary skeleton arguments Mrs. Namwila Mwala objected to the reference to the arbitration proceedings relating to a Cash Management Services agreement by the Applicant. She contended that the issue was not before the High Court and Court of Appeal, as such, it is not the subject matter of the intended appeal. To reinforce her argument, she referred to the Supreme Court decision in the case of Antonio Ventriglia And Manuel Ventriglia v Eastern and Southern African J27 Trade and Development Bank9 in which the court held that only issues that are canvassed in the court below can be escalated to an appellate court. 50) As regards the objection raised by the Applicant on some of the paragraphs in the affidavit in opposition filed by the 7 th Respondent, counsel argued that the paragraphs contain statements of information and belief and state the source and grounds on which the deponent's belief is based. They, therefore, do not offend the rules relating to affidavit evidence. She argued that the paragraphs are in compliance with Order 41 rule 5(2) of the White Book. She also argued that the paragraphs do not contain extraneous matters and referred, without elaborating, to the Supreme Court decision of Mutantika & Another v Kenneth Chipungu 10. 51) Counsel also raised objection to the Applicant's affidavit in support contending that the copy served on the 7 th Respondent did not include paragraphs 33 and 34. She urged me not to consider these paragraphs because they have not been brought to the attention of the 7 th J28 Respondent and it would be prejudiced 1n the consequences. 52) In the arguments in reply, Mr. B. C. Mutale SC went to great length in rebutting the arguments by counsel for the Respondents. In so doing, the arguments have by and large strayed into the intended appeal and I have thus not found it necessary to restate all the arguments. He has also filed a voluminous list and extracts of authorities containing five cases which he says he will rely on at the hearing of the appeal if permission to appeal is granted. For the reason that no such permission has yet been granted and my role at this stage being to determine if permission to appeal should be granted and not considering authorities to be relied on at the appeal, I have not addressed my mind to these authorities. 53) The relevant portions of the reply submissions by Mr. B. C. Mutale SC began with contending that all the Respondents have not disputed any of the matters set out in the affidavit support. He accordingly argued that I should accept the facts as undisputed. Counsel argued J29 further that all the facts presented in the affidavit in support have been repeated in the arguments in support. As such, the 7 th Respondent is in no way prejudiced if indeed the affidavit in support served upon it did not contain paragraphs 33 and 34. 54) Counsel also restated that the application before me is a renewal of the application for permission to appeal and not an appeal against the order of that court refusing permission to appeal. This, he argued is in line with the rules of the Court of Appeal and decisions of the Supreme Court. 55) Counsel then set out and argued: the relevance of his reference to the partial final award; the rights of a nominal defendant in a derivative action; circumstances under which an award may be challenged pursuant to Section 17 and 19 of the Arbitration Act; and, the effect of registration of an award. These arguments were quite extensive and dealt with some of the issues reserved for the intended appeal while others were entirely outside the scope of this J30 application as I will demonstrate later. For that reason, I have not reproduced them. 56) On the issue of the intended appeal raising points of law of public importance, Mr. B. C. Mutale SC argued that although the Respondents have argued that the Applicant has not met the threshold, none of them have challenged the issues raised in paragraphs 16, 23 and 24 of the affidavit in support and paragraphs 9, 12 and 13 of the argument in support. The content of these paragraphs, according to State Counsel, along with paragraphs 31 to 37 of the affidavit in support reveal that the intended appeal has met and surpassed the threshold set by the law. 57) In reply to the argument by the Respondents that the Applicant had not demonstrated real, as opposed to fanciful, prospect of success, State Counsel argued that the Applicant had surmounted the threshold. He once again went to great length at arguing in detail the intended appeal. J31 58) Last, in response to the argument by the 1st and 2nd Respondent that even where the threshold is met the Court of Appeal still retains the discretion not to grant permission to appeal, State Counsel argued to the contrary and referred to the decision of the Supreme Court in the case of Savenda Management Services Limited v Stanbic Bank Zambia Limited2 . Consideration and decision 59) In my consideration of this application, I have had sight o the affidavit evidence and arguments by counsel. I begin by dealing with the objection to certain paragraphs in the affidavit in opposition filed by the 7 th Respondent. The Applicant contends that the paragraphs contain extraneous matters by way of legal arguments, objections opinions and conclusions. 60) The provision that guides on the form and content of affidavits is Order 41 rule 5 of the White Book. It states that an affidavit may contain only such facts as the deponent is able of his own knowledge to prove and J32 statements of information or belief with the sources and grounds thereof. The effect of this provision is that: 60.1 affidavit evidence must contain firsthand information; and, 60.2 where it is sworn for use 1n interlocutory proceedings, statements of information or beliefs obtained from third parties are acceptable as long as the source is named and basis of belief stated. This provision of the White Book mirrors the provisions of Order 5 rules 15, 16 and 17 of the High Court Act. Therefore, the practice is not unique to the Supreme Court but cuts across all courts in Zambia. 61) In addition, the Indian Courts whose sources of law are similar to ours, take a similar approach as we do in Zambia. Writing in the text Law of Affidavits, P. M. Bakshi, a former member of the Law Commission of India, summarizes the law on affidavits as follows at pages 20 to 22: 61.1 affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, J33 except on interlocutory application, on which statement of his belief may be admitted provided that the grounds thereof are stated; 61.2 the requirement of stating the grounds of belief is very important. When in an affidavit on an interlocutory application, the deponent makes a statement of his belief he shall, if the facts are ascertained from another person, give such details of such person; 61.3 knowledge stands on a higher footing than belief. 'Knowledge' is an assurance of a fact or proposition, founded on perception by the senses or intuition while "belief' is on assurance gained by evidence and from other persons. 62) The question I have asked myself is where does the law I have set out in the two preceding paragraphs stand with respect to the objection raised? The starting point is to determine the nature of the application. It is interlocutory in nature because the decision I shall render does not conclude the dispute in this matter with finality. J34 Consequently, the deponent to the affidavit in opposition by the 7th Respondent was at liberty to tender evidence based on information given to him by a third party. What about the evidence? The facts that are in contention and have to be proved in this case are that: the intended appeal has reasonable prospects of success; raise a point of law of public importance; and, there is a compelling reason for the appeal to be heard. These facts are derived from Section 13(3) of the Court of Appeal Act, which sets out the threshold to be proved both factually and legally if permission to appeal is to be granted. 63) In applications for permission to appeal launched pursuant to Section 13(3) of the Court of Appeal Act, there is a thin line between what amounts to a legal proposition and a factual proposition. My firm view is that the three grounds are factual propositions because they are the facts which have to be and have been advanced and countered by the Respondents. 64) In the Appilcant's originating affidavit, the deponent in paragraph 1 7 has set out areas of the judgment sought to J35 be assailed which, in his opinion were not dealt with by the court below and contends in paragraphs 18 that the Supreme Court has not pronounced itself on the aforementioned issues. In paragraph 33 the deponent goes further and sets out the issues which the intended appeal aims at addressing. 65) The deponent concludes in an earlier paragraph and paragraph 36 that the issues are novel and need to be adjudicated upon, were not considered by the Court of Appeal and, arouse public curiosity. These averments are all in an effort to prove the threshold under Section 13(3). In response, the deponent to the affidavit in opposition by the 7 th Respondent says that he was advised by his counsel that, the facts do not in fact meet the threshold. This is the basis upon which the alleged offensive paragraphs is based and the deponent precedes these paragraphs with a statement that he is informed by counsel and verily believes the information to be true. This qualification satisfies the legal requirements I have set out above especially that the deponent does not say the J36 evidence is based on his knowledge. I hold that there is no merit in the objection and accordingly dismiss it. 66) In arriving at the decision in the preceding paragraphs, I have had sight of the English case of Gleeson v J. Wippell and Co. Limited11 which Mr. B. C. Mutale SC relied upon in support of his argument that the paragraphs sought to be expunged offended the rules in regard to form and content of affidavits. The affidavit which was before the court in that case and the subject of the challenge contained a quote from a passage from an opinion of Queen's Counsel and an exhibit of an article from a journal on patents law. Megarry V C found that the foregoing did not constitute evidence which is the purpose of an affidavit. He found further that he could not receive the evidence of Queen's Counsel or author of the article in that form, the rationale being that the opinions of Queens Counsel or indeed author of the legal article is not acceptable as affidavit evidence as it constitutes legal opinions and not facts emanating from one's knowledge or information supplied to them. J37 67) In the case with which I am engaged, the situation is rather different. The deponent of the 7 th Respondent's affidavit in opposition does not in any way give legal opinions, nor does he report on legal opinions on the case given to him. He merely states what counsel informed him in relation to the threshold and that he believed such information. The Gleeson 11 case is, therefore, quoted out of context by Mr. B. C. Mutale SC as the facts in that case are a drastic departure from those in this case. 68) Coming now to the objection by the 7 th Respondent. To recap, it is contended that the affidavit in support served upon the 7th Respondent by the Applicant is defective because paragraphs 33 and 34 are missing. Mrs. Namwila - Mwala urged me not to consider these paragraphs. The response by the Applicant is that the contents in the affidavit in support, including paragraphs 33 and 34, have been repeated in the skeleton arguments. The Applicant has not out-rightly denied the allegation by the 7 th Respondent. J38 69) The purpose of an affidavit is to lay before me the evidence which a party relies upon in support of its case and to alert the other party of the evidence it requires to counter. Such evidence is on oath or affirmation and presented through either, an affidavit or by word of mouth by a witness present in court. Evidence can not be presented in skeleton arguments nor can it be substituted by skeleton arguments. What this means is that I do not accept the argument by Mr. B. C. Mutale SC and I accordingly will disregard the evidence in paragraphs 33 and 34 of the affidavit in support because it was not presented to the 7th Respondent for purposes of responding to it. 70) Having ruled on the objections raised the next step is to consider the merits of the application. Prior to doing this however, it is important for me to clarify the parameters I will be working within. This application is a renewal of the application which was placed before the Court of Appeal. As such, it is a rehearing on the record which was before that Court of Appeal. In the case of Rosemary Nyangu v J39 Pamodzi Hotel Plc12 the Supreme Court reiterated the need for an applicant in a renewed application to advance the same grounds advanced in the court below. 71) The importance of the clarification I have made in the preceding paragraph is that I have noticed that the application before me more or less enlarges the application which was before the Court of Appeal. The application before the Court of Appeal was anchored on the affidavit of one Lombe Mbalashi. This is in the exhibit marked "LMS" to the affidavit in support of the motion before me. In that affidavit, the crucial evidence in support of motion is at paragraphs 8 to 12 and can be summarized as follows: 71.1 the Applicant is a state-owned company answerable to the people of Zambia through the National Assembly and is a shareholder in the 7th Respondent; 71.2 the Applicant's action in the High Court was motivated by public interest so as to ensure that the affairs of the 7 th Respondent were conducted in J40 compliance with the ethos of good corporate governance; 71.3 the 7 th Respondent's mine 1s the largest copper producer in Zambia; 71.4 the case has wide local and foreign coverage, as a result; 71. 5 the issues which the intended appeal raises are res judicata, issue estoppel, derivative actions, what constitutes a final and conclusive decision of a foreign tribunal and the application of Section 331 of the Companies Act 201 7. 72) The issues set out in paragraphs 71.1 to 71.5 appear to be intended to prove the threshold for the ground of point of law of public importance. They also focus on showing that the public interest arises from the fact that the Applicant is a state-owned enterprise, therefore, its action is aimed at enforcing public interests which has aroused media interest. J41 73) However, there is a departure in skeleton arguments presented before me. The Applicant has contended that the intended appeal raises pointes of law which: 73.l)transcend the particular facts of this case; 73.2) concern corporate governance ethos and the possible ramifications of attending to resolve disputes by arbitration; 73.3) apt to guide members of the general public in the conduct of business, commercial investments and dispute resolution; 73.4) affects a large number of people in the business sector, as well as litigants in general; 73.5)presents an opportunity for the clarification of the law and development of jurisprudence; 73.6)relevant to the practice, procedure and administration of the law, the proper administration of justice and the public interest; 73.7)destined to continually exercise the judicial organs of Zambia; and J42 73. S)likely to have a bearing on government policy regarding foreign investment and involvement 1n state institutions and the mining sector. 74) The Applicant has merely listed the contentions I have set out in paragraphs 73 .1 to 73. 7 and has not elaborated on them. Further, apart from the issue at paragraph 73.2, the others are new and were not advanced in the Court of Appeal as is evident from my summary at paragraphs 71.1 to 71.5. In my consideration of this motion, I will, therefore, restrict myself to the contentions at paragraphs 71. 1 to 71. 5. 75) The first ground advanced by the Applicant is point of law of public importance. The parties are agreed that the test for this ground was set out by the Supreme Court in the BIDVEST1 case. It is that the matter must be public in nature and must transcend the circumstances of the particular case and must have more general significance; it must also be demonstrated that there is uncertainty as to the point of law and that it is for the common good that such law should be clarified to enable court's to administer J43 that law, not only in the particular case, but also cases that come before the courts in future; most cases of a private nature including most of those in contract or tort are unlikely to raise or will only rarely raise points of law of public importance as they usually involves disputes to the satisfaction of one or limited parties to a dispute; and, new points of law may arise in the Court of Appeal which may be insignificant and arousing no public curiosity on interest. 76) The thrust of the arguments by Mr. B. C. Mutale SC on this point are at paragraph 11 of page 17 of his skeleton arguments. They are as follows " ... the matter is one that has aroused public curiosity and interest due to the status of the Applicant, the business carried out by the 7th Respondent and its place in the economy of Zambia, as well as characteristic of the other Respondents and the discourse surrounding foreign investments in the mining sector and the externalization of funds". This falls for short of the test I have set out in the preceding paragraph as expounded in the BIDVEST1 case. This is quite apart from J44 the fact that some of the issues alluded to by Mr. B. C. Mutale SC such as: the effect of the case on the mining sector and indeed economy of the country; externalization of earning by shareholders and foreign investments, to mention but three, do not arise in the intended appeal as they were not the subject of the litigation in the two previous courts. Assuming indeed, the case has aroused public curiosity, the question is, will the decision on the matter transcend the circumstances of this particular case and have more general significance? Further, has it been shown that there is uncertainty as to, the point of law to be canvassed in the appeal and a resolution will be to the greater good? These and many other questions have remained unanswered by the submission and evidence deployed by Mr. B. C. Mutale SC. 77) I am aware, and I take judicial notice of the fact that the Applicant is one of Zambia's largest mining conglomerate and that the 7 th Respondent is one of the largest copper producing mines in the country. Copper having been, and still remains one of the country's largest export product, J45 does this mean that each time the Applicant or 7 th Respondent are engaged in a dispute, that dispute has the effect as espoused by the BIDVEST1 case. I think not. This is compounded by the fact that the issues sought to be presented in the appeal of res judicata, issue estoppel, and effect of an arbitral award have been adjudicated upon by a number of courts in our jurisdiction and the issues are settled. Further, and as Mrs. Namwila-Mwala has argued, the action in the High Court was an attempt by the Applicant to recover certain monies on behalf of the 7 th Respondent, from the other Respondents arising from a private contract. The result of the action and appeal is bound to affect only the parties to the action. Consequently, the application must fail on this ground. 78) Coming to the second ground advanced of reasonable prospects of success. These prospects are a realistic chance of success and not remote chance of success as set out in the BIDVEST1 case. Mr. B. C. Mutale SC went to great length to invite me to look at the lengthy arguments presented by the parties in the Court of Appeal and High J46 Court which he contended attest to the intended appeal's likelihood of success. He, in this regard, substantially argued the intended appeal and drew my attention to various English decisions which he said the Applicant would rely on in arguing the intended appeal. 79) I have not been swayed by the arguments by Mr. B. C. Mutale SC because he invites me not to preview the issues in dispute in the intended appeal and decide whether or not the intended appeal is likely to succeed, but rather to review the arguments and authorities submitted by the parties in the court below. By this implication he also invited me to determine the merits of the intended appeal by reviewing the English authorities the Applicant intends relying upon at the hearing of the appeal if permission to appeal is granted. This is the function reserved for the full bench of the Supreme Court subsequent to permission to appeal being granted and not a consideration to be made at the stage of requesting for permission to appeal. 80) Mr. Chilufya has referred me to the South African case of S v Smith8 , on what constitutes reasonable prospects of J47 success and the test to be applied by the court. The case states that the test postulates a dispassionate decision based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. I am persuaded by this decision and that my consideration at this stage is, therefore, dispassionate without having to delve deep into the merits or demerits of the intended appeal or reviewing the record and formulating an opinion on the intended appeal. I must conclude that the Applicant has failed to surmount the threshold of reasonable prospects of success. 81) Coming now to the last ground of other compelling reason. What is evident from the arguments by Mr. B. C. Mutale SC is that he has neither set out or explained the test in this ground. As such, there is no justification which the Applicant has advanced to prove its entitlement to permission to appeal based on this ground. An applicant must demonstrate to the court that there are circumstances or facts that have necessitated the Supreme Court to revisit an earlier decision. The issues as J48 presented by the intended appeal, as I have stated earlier, have been litigated upon and relitigated at various levels of the courts in Zambia as evidenced by the authorities cited by counsel for the parties. Further, I agree with the argument by Mr. Chilufya that the Applicant has not demonstrated that the intended appeal reveals facts or changes in any circumstances warranting the Supreme Court to revisit its earlier decisions on the issues. This application must fail on this ground as well. 82) Let me end by dispelling the myth held by Mr. B. C. Mutale SC that the Applicant is entitled to the grant of permission to appeal because the affidavit evidence by the Applicant's witnesses and some of the arguments have not been opposed. The fact that the evidence or arguments are not opposed is not a given that it will be accepted. It must be relevant to the issue at hand and I have endeavored to show the weaknesses in the Applicant's evidence and arguments. Further, the Applicant was still compelled to surmount the threshold set by Section 13(3) of the Court of Appeal Act, notwithstanding the silence of the J49 opponents on certain issues. In doing so the Applicant was obliged to convince me that the threshold had been met, notwithstanding the position taken by the Respondents. Conclusion 83) The application fails in its entirety. Permission to appeal is refused and I dismiss the application with costs. These will be taxed in default of agreement. Dated at Lusaka this 4 th day of October 2021 C, ./ LONDE TUNA COURT JUDGE