Mbewe and Ors v B.L. Harbert International (CAZ/08/355/2020) [2023] ZMCA 146 (15 February 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) NOM 38/2022 NOM 02/2023 ~~fuS\ICOFz~~~I CAZ/08/355/2020 ~ . ~' - /_ ---- /~ ! - - - - -~ .. , . ,, "- -,, 1tJ L2 s Ff '.l /0'1 kt- r · '/,/ • -7);!} . (~ G!: f.t?r I ) ff;;-:----:-:-; ti'- · . 0_! 50067 . 111':>I>- BETWEEN: DALIYO MBEWE AND 153 OT& ....... ,&"'"' ! . APPELLANT AND B. L. HARBERT INTERNATIONAL RESPONDENT CORAM: Chishimba, Sichinga, and Sharpe-Phiri, JJA On 3 r d February, 2023 and 15t h February, 2023 For the Appellant: Mr. B. Banda, Legal Aid Counsel of Legal Aid Board For the Respondent: Mr. Y. Yosa and Mr. I. Mung'omba of Messrs Musa Dodhia and Company RULING Sichinga, JA, delivered the Judgment of the Court. Cases referred to: 1. China Henan International Co-operation Group Company Limited v G and G Nationawide (Z) Limited SCZ Appeal No. 199 of 2016 Legislation referred to: 1. 2. 3. Court of Appeal Rules, Statutory Instrument No. 65 of 2 016. Rules of the Supreme Court 1999 Edition (White Book) The Court of Appeal Act, No. 7 of2016 Laws of Zambia 1.0. Introduction 1. 1. On 16th August, 2022 the applicants (Daliyo Mbewe and Others) filed a Notice of Motion for leave to file notice of intention to appeal against the judgment of this Court of 19th July, 2022. The motion is made pursuant to Order 11 Rule 1(1) of t he Court of Appeal Rules (CAR)1 . 2. Preliminary Objection 2.1 At the hearing of the Motion, on 3 rd February, 2023, Mr. Mung'omba Counsel, for the Respondent, raised a preliminary objection by way of Notice of Motion to raise preliminary objections on a point of law filed on 25th January, 2023. The said motion was made pursuant to Order 13 Rule 5 of the Court of Appeal Rules and Order 33 Rule 3 and 7 of the Rules of the Supreme Court of England2 for determination of the following questions of law in limine, namely: 1. Whether the Appellants' application for leave to appeal against the judgment of this Court dated 1 gth July, 2022 is competently before the Court considering the fact that the application has been brought outside the time limit prescribed by law; and 2. Whether the costs of and occasioned by this application shall be for the Respondent and ought to be borne personally by counsel for the Appellants. -R2- 2.2- The motion is supported by an affidavit sworn b y one Innocent Mung'omba, counsel for the Respondent. The gist of counsel's affidavit is that the Appellants filed their application for leave to appeal to the Supreme Court outside the prescribed p eriod without leave of the Court. That in the lower court's Ruling of 29th July, 2021, the Appellants' counsel was cautioned against commencing actions that are doomed to fail. It was also averred that this Court at page J12 to J1 3 of our judgment found that the Appellants admitted that th e matter in the court b elow was filed late and that the appeal was bereft of m erit. 2.3 Mr. Mung'omba relied on the Respondent's skeleton arguments in support of the motion filed on 25th January, 2023. 3.0 Opposition to the Preliminary Issue 3 .1 In opposing the motion, the Applicants filed an affidavit in opposition on 1st February, 2023 sworn by one Bentry Banda, counsel for the Respondents. The gist of his affidavit is that the motion for leave to appeal to the Supreme Court was lodged on 15th August, 2022 and not 16th August, 2022 as asserted b y the Respondent's counsel in his affidavit 1n support. That the said defect cited 1s curable and inconsequential to these proceedings . -R3- 3.2 It was admitted that this Court found and adjudged that the appeal had no merit, however, the Applicant's contention is that the Court did not consider the exceptions to the law of limitations hence the application seeking leave to appeal to the Supreme Court. 3.3 In opposing the motion, Mr. Banda relied of the skeleton argumen ts in opposition to the motion filed on 1st February, 2023 . 4.0 Respondents' submissions in reply 4.1 In reply, Mr. Mung'omba submitted that the motion to raise preliminary issue was made pursuant to Order 33 Rule 3 of the Rules of the Supreme Court of England which provides that: "The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by t he pleadings or otherwise, to be t ried before, a t or after the trial of t he cause or matter, and may give directions as to t he manner in which t he question o r issue shall be s t ated". 4 .2 In support of his submission, Mr. Mung'omba relied on the case of China Henan International Co-operation Group Company Limited v G and G Nationawide (Z) Limited1 to the effect that Order 33 Rule 3 of the Rules of the Supreme Court of England gives the Court jurisdiction to entertain a preliminary issue. -R4- 4.3 He argued that the Appellants motion for leave to appeal to the Supreme Cou rt was based on Order 9 of the CAR which does not relate to civil a ppeals. In addition, it was submitted that the Appellants' assertion that th e intended appeal raises issues of public impor tance is misconceived because Courts have pronoun ced on matter s which are statute barred. 4.4 Mr. Yosa, learn ed co-counsel for th e Respondent submitted that the Appellants did not dispu te that the motion for leave to appeal was filed ou t of time. 5 .0 Our decision 5.1 The motion raises a preliminary issue as to whether the Appellant's application for leave to appeal is competen tly before this Court. The Respondent contends that the application for leave to app eal is not competently before us as it was brough t outside the time limit prescribed by law. On 19th July, 2022 we rendered our decision dismissing the Applicants' appeal for want of merit. Section 13 (1) and (2) of the Court of Appeal Act (CAA)3 provides as follows: "(1) An Appeal from a judgment of the Court shall lie to the Supreme Court with leave of the Court. (2) An application for leave to appeal, under subsection (1), shall be made within fourteen days of the judgment." 5.2 Our brief response to the Preliminary Issue is that section 13 (2) CAA requires a party aggrieved with a decision of the Court -RS- to seek leave within fourteen days of the judgment sought to be appealed against. 5.3 In the present case, our decision having been rendered on 19th July, 2022, the fourteen days expired on or about 3 rd August, 2022. The application for leave to appeal, was made on 16th August, 2022. The Applicants' contends that her application was made on 15th August, 2022. However, even if it was made on the latter date, it was still outside the prescribed period for seeking the Court's leave to appeal to the Supreme Court. 6.0 Conclusion 6.1 We find the motion for leave to appeal is incompetent and without basis. Therefore, we uphold the Respondent's preliminary objection on a point of law and accordingly dismiss the motion for leave to appeal for want of merit with costs to the Respondent to be taxed in default of agreement . .. ... ............ .... .... ....•... F. M. Chishimba COURT OF APPEAL JUDGE COURT OF APP N. A. Sharpe-Phiri COURT OF APPEAL JUDGE -R6-