Abaleka Mwandila v Richard Kazala (CAZ/08/020/2021) [2025] ZMCA 57 (4 April 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/08/020/2021 ABALEKA MWANDILA APPELLANT AND RICHARD KAZALA RESPONDENT 0 4 APR 2025 Before Hon. Mrs. Justice A. M. Banda-Bobo on 4 th April, 2025. For the Appellant: Mr. T. M. Chabu of Messrs Terrence Chabu and Co. For the Respondent: Mr. N. Chaleka of Messrs ECB Legal Practitioners RULING Cases referred to: 1. Evans Milimo v. Zambia Daily Mail and Attorney General (CAZ Appeal No. 24 of 2021) 2. JCN Holdings Limited v. Development Bank of Zambia Limited (2013) 3 ZR 299 3. Antonio Ventriglia a nd Manuela Ventriglia v. Finsbury Investment Limited (SCZ Appeal No. 02 of 2019) 4. Macfoy v. United Africa Company Limited (1961) 3 ALL ER 1169, 5. 6. Chikuta v. Chipata Rural Council (SCZ Judgment No. 38/ 1974 Owners of the Motor Vessel "Lillian S" v. Caltex Oli (Kenya Limited 1989) KLR 19 Legislation and Other Works referred to: • Court of Appeal Rules, Statutory Instrument (SI) 65 of 2016 • Rules of the Supreme Court (RSC), 1999 Edition of the White Book. • Section 9(b) of the Court of Act No. 7 of 2016 1.0 1.1 Introduction This is a Ruling on the Respondent's Notice of Motion to Raise Preliminary Objection (P. O) and or Issue (P. I), made pursuant to Order VII rule 1 of the Court of Appeal Rules, Statutory Instrument (SI) 65 of 2016, as read together with Order 2 rule 2, Order 33 rule 3 and Order 14A of the Rules of the Supreme Court (RSC), 1999 Edition of the White Book. 1.2 The process was filed on 16th July, 2024. The Motion was accompanied by an affidavit and skeleton arguments. The Court was asked to determine the fallowing two . issues, vis: . (i) Whether the Notice of Motion by the Appellant, dated 13th June, 2024 is properly before Court, as it has been made way beyond the 10 days period or reasonable time without leave of the Court, and if the question is in the negative, that the said Motion be dismissed; (ii) Whether the Notice of Motion by the Appellant dated 13th June, 2024 has been prepared in accordance R2 2. 0 2 .1 with the Rules of the Court of Appeal, and if the answer is in the negative, that it be dismissed with costs. Background The brief background to this matter is that on 12th January, 2021 , the lower Court rendered a Ruling in favour of the Respondent. Dissatisfied with the Ruling, the applicant appealed the said Ruling to this Court. 2 .2 On 22nd November, 2023, this Court rendered its Judgment on the appeal. The appeal was upheld and the Ruling of the Court below was set aside. The matter was referred back to the High Court before a different Judge for commencement of trial. Costs were awarded to the Appellant. 2.3 The matter then proceeded to taxation on 26th March, 2024. Respondent's counsel filed a Notice of Motion to adjourn the taxation proceedings on the grounds that there was a pending application before a single Judge for leave to file a Motion to appeal to the Supreme Court out of time , as well as an application to stay execution of the R3 Judgment. The application to adjourn was opposed. However, the Taxation Master, after hearing, adjourned the Taxation proceedings as applied for. The Order to adjourn was granted on 28th March, 2024. 2.4 On 13th June, 2024, the Appellant filed a Notice of Motion for an order to set aside the Order of Adjournment of Taxation proceedings and for an order to fix appointment for taxation of costs ordered to be paid forthwith, pursuant to Order 7 rule 3( 1) of the Court Appeal Rules. 2.5 Before the application could be h eard, the Respondent 3. 0 3.1 filed the Motion, the subject of this Ruling This Motion As earlier stated, the Motion was accompanied by an affidavit and skeleton arguments. The affidavit was deposed to by one Richard Kazala- Laski, the Respondent. 3.2 In the preamble, he outlined the facts leading upto this point as already stated in paragraphs 2 .1 to 2 .4 above. It was his deposition that he had been advised by counsel, which advise he believed, that the Rules of this Court stipulate time within which to lodge grievance. That he R4 had been alerted that from 28th day of March, 2024, the Appellant has then filed an application for an order to set aside the Ruling of the Taxing Master, a period of almost three months down the line. 3. 3 Further that he had been inf armed that his advocates had not been served with an order granting the Appellants leave to file the application to set aside the Ruling on the adjournment, out of time. 3.4 It was his further averment, that the Notice of Motion was irregular, as it is not collated, does not have with it the Master's Certificate, nor the Advocates' Certificate with the relevant index. That not only was the Notice of Motion filed out of time and without leave of Court, but that it was not filed in accordance with the Rules of this Court. That that being the case, this Court lacks jurisdiction to hear the application in the manner in which it has been proffered before Court. 3.5 The Appellant, Mr. Mwandila swore the affidavit 1n opposition to the affidavit in support of the Notice of Motion to Raise a Preliminary Objection. It was his RS deposition that counsel had advised him that the Motion being impugned is correctly before Court, as there is no time fixed within which the said application can be made. Further, that the Notice of Motion was in the correct form as it was prepared in accordance with the prescribed form. 3.6 The Respondent, on 29th July, 2024, filed an affidavit in Reply to the affidavit in opposition, as well as skeleton arguments. The deponent reiterated his assertion that the Motion is not properly before Court, as it was filed out of time and the delay is inordinate. 3.7 Further, that even where there is no time set, it is a fact that this Court has nonetheless set time and a fall back mechanism, averring that it cannot be stated that because there is no time set, then the Appellant can bring applications at their own timing. That it was a fact that time is set for everything and where it is not, the Court determines a reasonable timeframe, which in this case has been set at fourteen (14) days at most in such cases. R6 4. 0 4 . 1 Skeleton Arguments Each party filed skeleton arguments in support of their respective positions. In the skeleton arguments in support of the Preliminary Objection, the Respondent's counsel began by setting out the two grounds on which the same is premised. 4 .2 Counsel went on to state that the Preliminary Objection is jurisdictional in nature, and set out the Rules on which the application is predicated. The point for setting out the Rules in total was to show that the application is rightly before Court. 4.3 As regards the first ground of the Objection, it was submitted that this Court and indeed all superior Courts have time and again expressed themselves on the importance of litigants adhering to the Rules of Court in terms of time within which to bring applications. 4.4 To buttress on this point, counsel adverted to Order 1 of the Court of Appeal Rules, for the point that where these Court of Appeal Rules are silent on procedure, recourse would be had to the White Book. That the White Book R7 has set a time frame for challenging Rulings and decisions of this Court. That of relevance is Order 59 rule 14 sub rule 12, which is to the effect that an appeal shall lie to the Court of Appeal from a determination by a single judge, not being the determination of an application for leave to appeal and a fresh application shall be made within ten ( 10) days of the determination appealed against. 4.5 That under the White Book, ten (10) days is the acceptable standard. That a decision of a single judge or a Taxing Master is challengeable to the full court or to a single judge within a reasonable time. That fourteen (14) days h as been held by tis Court to be a reasonable tim eframe. To that end, counsel adverted to our decision in the case of Evans Milimo v. Zambia Daily Mail and Attorney General1 , wh ere we stated that: "We agree with counsel for the Respondent that Section 9(b) of the Court of Appeal Act does not provide for a timeframe within which an application thereunder can be made. However, R8 this Court has in numerous decisions guided t hat such an application, as the one in this matter, should be made within a reasonable timeframe. We have guided that 14 days would be a reasonable time (underline provided) 4.6 That Order 7 rule 3(1) of the Court of Appeal Rules relied upon by the Appellant does not equally provide a timeframe, hence his falling on the White Book and the above cited case. 4.7 Counsel went on to state that the decision of the Trucing Master was made on 28th March , 2024, but the Appellant only decided to escalate his grievance to this Court on 13th June , 2024, a period of over two months. That such a delay goes beyond the fourteen ( 14) day period allowed by this Court and therefore, the Appellant needed leave of this Court. That, without leave, this Court lacks jurisdiction to determine the matter. 4.8 As regards the issue of lack of jurisdiction by this Court to determine the application, the Court's attention was called to the case of JCN Holdings Limited v. R9 Development Bank of Zambia Limited2 , and Antonio Ventriglia and Manuela Ventriglia v. Finsbury Investment Limited3 ; wh ere th e Supreme Court stated that: "Out of nothing comes nothing" and th at: "he gives nothing who has nothing" , as well as the case of Macfoy v. United Africa Company Limited4 , at p age 117 1, wh ere Lord Denning said: "If an act is void, then it is in law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse". 4 . 9 Cou nsel su bm itted th at t h e Appellant is way out of time and th ere is no leave that was sought to file the RlO application out of time. That the application be dismissed for irregularity and want of jurisdiction. 4.10 Counsel then moved to submit on the second preliminary issue, namely whether the Notice of Motion was prepared in accordance with the Rules of this Court. Counsel referred to Form III and Form IV as the format for preparing such a Motion. 4.11 Counsel went on to tabulate the requirements for filing a Motion for it to be acceptable for filing. That in this matter, those requirements were not met; hence the submission that the application is defective. It was counsel's submission that form goes to jurisdiction as well. That if any application is made using the wrong form , the court is also divested of jurisdiction to hear and determine the application. That in this matter, the application by the Appellant is not made in the correct form and therefore it should be dismissed, with costs to the Respondent. 4.12 I note that the applicant/Respondent has gone on to argue substantively on the issue of the adjournment. My Rll view is that this is a wrong approach; as it is the same issue of the application to adjourn that he wishes this Court to declare that it is incompetently before Court, for want of jurisdiction. I will not therefore consider that submission in this Ruling. I also note that the Appellant did not speak to this either. 4.13 The Appellant filed Skeleton Arguments in Opposition on 24th July, 2024 . Submitting on the first preliminary objection to the Notice of Motion for an order to set aside , it was contended that the same is misconceived, as no timeframe is stipulated under which the applications against the decision of the Registrar or taxing officer to a single judge has been set out in the Court of Appeal Rules. 4.14 Further, that the Order, which indefinitely adjourned the taxation proceedings is still running as no date has been fixed for the taxation proceedings . To augment, counsel adverted to Order 7 rule 3(1) (2) and 3 of the Court of Appeal Rules. That the Appellant's Motion was made pursuant to this Order, before a single Judge against the R12 Order of the Registrar; to indefinitely order adjournment of the proceedings. 4 .15 It was submitted that there is a difference between an application which lie to a single judge against the decision of a Taxing Master and or registrar, and that which is made before the full court. 4 .16 It was contended that the timeframe of ten (10) days as submitted by the Respondent in the first preliminary objection does not apply in casu, on the ground that there is no provision of such a timeframe, and the order against which the application is made is still running. 4.17 Counsel reverted to the cited case of Evans Milimo 1 relied upon by the Respondent, and argued that the Respondent had misapprehended its import; contending that the quoted passage was in connection with Section 9(b) of the Court of Act (Sic) No. 7 of 20 16. 4.18 It was contended that the Evans Milimo 1 case and Section 9 (b) is distinguishable from this case in that in the cited case, the application was from a single Judge to the full court where the time frame is fourteen ( 14) days R13 against the decision of the single judge. Th at the application herein relates to the application the Appellant made to a single Judge followin g the decision of th e Registrar, which is still running. Counsel fu rther argued that Order 59 rule 14 sub rule 12 RSC is not applicable herein. That this is because the Order is not in context with the application in this matter, as this application before this Court is not an appeal. Reliance was placed on the Evans Milimo 1 case, where we stated that: " ... we have noted the Respondent's arguments regarding Order 59/14/4 RSC. We are of the view that the import of this Order has been misapprehended. Our reading of this Order is that it relates to appeals and not an application such as the one before us. This not being an appeal, our view is that it does not apply." 4.19 Based on the above and the facts of this matter, it was contended that the first preliminary objection cannot be sustained as the Appellant's Motion was made within time. That the objection be dismissed with costs. R14 4. 20 Regarding the second ground of the Preliminary Objection, the Appellant stated that the same does not hold water, contending that the Motion was prepared in accordance with the Rules of this Court, as provided for in Order 10 rule 2 (12) of the Court of Appeal Rules, and Order 7 (3) (1) (2) (3) . That looking at exhibit "A. M 1" in the affidavit in opposition, it is clear that the Motion was prepared in conformity with the Rules. 4.21 It was contended that the Respondent's objections are merely meant to waste the court's time as they are unfounded and not supported by relevant authorities. That the same be dismissed with costs to the Appellant. 4.22 Skeleton Arguments in Reply 4.23 The Respondent filed skeleton arguments in Reply to the arguments in Opposition on 28th July, 2024. I have noted the contents of the Reply, but will not reproduce them here , suffice to state that I will advert to them where need arises. RlS 5.0 5.1 6. 0 6 .1 Hearing The matter was heard on 5 th September, 2024. Mr. Chaleka, counsel for the Respondent/ applicant placed reliance on the documents filed in support of the application. Mr. Chabu, counsel for the Appellant/Respondent equally placed reliance on their filed process with brief oral augmentation, which basically was a rehash of the issues in the filed process. Analysis and Decision I have carefully considered the affidavits for and against, the skeleton arguments and list of authorities brought to my attention by each party, and the oral augmentations at the hearing. 6.2 The issue being canvassed by the Respondent is primarily whether this Court has jurisdiction to determine the Notice of Motion to set aside the order to adjourn the taxation proceedings, because that Motion was filed out of time and without leave of Court. In my view, the determination of this issue will invariably impact on the second preliminary issue. R16 6.3 It has not been disputed that the decision of the Taxing Master on 28th March, 2024 ordered that taxation proceedings be adjourned to a later date, pending the hearing and determination of the Respondent's application for an order for leave to appeal out of time. 6.4 It is also not in dispute that the Appellant, being dissatisfied with the Order to adjourn, did file into Court, on 13th June, 2025, a Notice of Motion for an order to set aside the Order for adjournment of taxation proceedings and for an order to fix an appointment for taxation of costs ordered to be paid forthwith. 6 .5 The issue for resolution, is whether the Appellant, when he made the application on 13th June, 2024 was out of time and ought to have obtained leave of the Court for extension of time within which to file the said Motion. 6.6 The Respondent contends that having filed out of time, the Appellant's application is incompetently before this Court, and that as a consequence, this Court does not have jurisdiction to determine the Appellant's Notice of Motion. R17 6. 7 The applicant, in support of his application contends that the Rules of this Court stipulates a timeframe within which an aggrieved litigant should lodge his grievance against a decision. That in this case, the application to set aside the decision of the Registrar to adjourn the matter was made on 13th June, 2024 and yet the decision complained against was made on 28th March, 2024, a period of over two months. That that being the case, the Appellant ought to have applied for leave to file the same out of time. That leave not having been obtained, the Motion is wrongly before Court and this Court lacks jurisdiction to determine it. 6.8 The Appellant on the other hand contends that there is no timeframe stipulated under which the application against the decision of the Registrar or Taxing Officer to a single Judge has been set out 1n the Court of Appeal Rules. That this application to raise a preliminary objection is misconceived. 6.9 Order VII rule 3 sub rule 1 states thus: R18 "3(1) A person aggrieved by anything done or ordered to be done by the Registrar or Master, other than anything ordered or done by the direction of the Chief Justice may apply to a single judge to have that Act, order or ruling set aside or varied." 6.10 It is evident from the above passage that there is no timeframe indicated within which such a process should be undertaken. The question then, is whether in such a scenario an aggrieved litigant is at liberty to set their own timeframe. If the answer was to be in the affirmative, there would be no end to litigation, which would create an absurdity. It is in view of this that this Court has guided in a plethora of decisions that in a situation such as this , where no timeframe is stated, such an application should be made within a reasonable time. 6.11 In the case of Evans Milimo 1 referenced by the Respondent in his submissions, we guided that fourteen (14) days would be a reasonable time. In that case, we were dealing with Section 9(b) of the Court of Appeal R19 Rules. It too has no timeframe stipulated, within which to file the Notice of Motion. The issues that arose in that matter are on all fours with the matter before me. Consequently, and leaving aside all the issues on the periphery, my view is that the application to set aside the Order to adjourn by the Taxing Master ought to have been done within a reasonable time, as guided in the Evans Milimo 1 case, which is set at fourteen ( 14) days. 6. 12 In this matter, the application to set aside the order to adjourn was made on 13th June, 2024, against an order made on 28th March, 2024. Clearly this is a period of more than two months . 6 . 13 Order 13 rule 3 (2) Court of Appeal Rules allows an applicant to apply for extension of time within twenty-one (21) days of expiry of the time limit; in this case, the fourteen (14) days. Where the twenty-one (21) days period has lapsed, the applicant must first obtain leave to apply out of time. Therefore the Appellant, being outside the reasonable fourteen ( 14) days for applying in matters where no timeframe is stipulated, and the extended R20 twenty one (21) days within which to seek an extension of time having expired, it means that indeed the Appellant's Motion for an order to set aside the Order for adjournment of taxation proceedings and for an Order to fix appointment for taxation of costs ordered, is incompetent before this Court, as no leave was obtained for extension of time. 6.14 I agree with the Respondent that a period of two (2) months is inordinate delay. It appears, from the Appellant's submissions that he labored under the mistaken belief that since there was no stipulated timeframe, he could move at his own pace, which is not the case as guided in the Evans Milimo 1 case. 6 .15 I note further, that the Appellant contends in arguing against ground one of the Motion, that the order against which the Respondent has made the application, is still running and has not yet come to an end. This in my view shows a clear misapprehension of the application before Court. The issue is not whether the order for adjournment is still running or not. Clearly, the Order R21 subsists and that is why he himself seeks to set it aside. The issue is whether the Appellant in applying to set aside the same Order, has sought that relief within the stipulated timeframe. There is no dispute regarding the subsistence of the Order of the Taxing Master. 6 .16 The Appellant has argued that Order 59/14/41 RSC is not applicable. I agree, on the facts of this case. However, it is patent that we guided in the Evans Milimo 1 case that, where no timeframe is given, in which to take any action, a period of fourteen (14) days is reasonable . I thus find merit in the first ground of the preliminary objection. 6.17 In the case of Chikuta v . Chipata Rural Council5 , a case cited with approval in the matter of JCN Holdings Limited v. Development Bank of Zambia2 , the Su preme Court observed that: "It is clear from the Chikuta and New Plast Industries cases that if a court has no jurisdiction to hear and determine a matter, it cannot make any lawful orders or grant any remedies sought by a party to that matter." R22 6.18 In the case of Ventriglia and Another v. Finsbury Investment Limited3 • the Supreme Court cited with approval, the Kenyan case of Owners of the Motor Vessel "Lillian S" v . Caltex Oli6 which held that: "It is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything, without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction ... where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing ... " 6.19 The Supreme Court went further, in the same case to state that: R23 "An objection founded on want of jurisdiction should be decided promptly, either on the court's own motion or upon being appropriately prompted by a party to the relevant proceedings" 6.20 Having found that there is merit in the first ground of the Preliminary Objection, namely that the application by the Appellant was filed out of time, and without leave of court extending time , it is my holding that I lack the requisite jurisdiction to make a determination on the Appellant's application. The cited cases above, are clear that if I were to proceed to make a determination thereon, in the face of lack of jurisdiction as in this case, my decision will amount to nothing. The Preliminary Objection in the first ground succeeds. 6. 21 In view of the above, I do not see the need for me to determine the issues raised under the second ground of 7. 0 7 .1 objection. Conclusion In conclusion, I deem that the application by the Appellant for an order set aside the order for adjournment of Taxation R24 proceedings is improperly before Court as it was not made within a reasonable time of fourteen (14) days and without leave of Court. 7. 2 That being the case, the Court lacks jurisdiction to hear and determine it. The Respondent's application to Raise a Preliminary Objection succeeds; and the Appellant's application filed on 13th June, 2024 is dismissed with costs to the Respondent to be taxed in default. DELIVERED AT LUSAKA, THIS 4TH DAY OF APRIL, 2025. ···············~ ························· Hon Mrs. Justice A. M. Banda-Bobo COURT OF APPEAL JUDGE R25