Evans Ngubai v Kafue Textiles and Anor (Appeal 155 of 2005) [2007] ZMSC 137 (29 November 2007)
The appeal was dismissed as incompetent because the appellant failed to obtain leave from the High Court as required by law.
Source-derived case information.
- Citation
- [2007] ZMSC 137
- Parties
- Appellant: Evans Ngubai; 1st Respondent: Kafue Textiles; 2nd Respondent: Bethel Baptist Church
- Court
- Supreme Court of Zambia
- Jurisdiction
- Zambia
- Case Number
- Appeal 155 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- appeal dismissed as incompetent
- Legal Topics
- Leave to Appeal, Competence of Appeal, Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Ngubai
Appellant
Kafue Textiles
1st Respondent
Bethel Baptist Church
2nd Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the appeal is properly before the Supreme Court without leave from the High Court
- 2 Whether the failure to obtain leave renders the appeal incompetent
Ratio Decidendi
The appeal was dismissed as incompetent because the appellant failed to obtain leave from the High Court as required by law.
Court Disposition
appeal dismissed as incompetent
Orders
- Appeal dismissed with costs to the respondents
Full Case Text
Judgment text and source record
1 paragraphs
IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 155/2005 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: EVANS NGUBAI: APPELLANT AND KAFUE TEXTILES BETHEL BAPTIST CHURCH 1ST RESPONDENT 2nd RESPONDENT Coram: Mumba and Mushabati JJS and Kabalata AJS On the 16th October, 2007 and 29th November, 2007 For the Appellant: For the 1st Respondent: H. Chizu of I. C Ngo’nga and Company For the 2nd Respondent: J. M. Chimembe, of JMC and Associates M. L. Mukande, of M. L. Mukande and Company RULING Kabalata, AJS, delivered the ruling of the court This was supposed to be an Appeal against the Ruling of the High Court dated 30th May 2005 in which the learned trial judge refused an application by the Plaintiff for the continuation of the injunction order which had earlier been granted exparte. After counsel had made their submissions, the court discovered that no leave had been obtained from the court below to file this appeal in this court. This position was confirmed by Mr. Chimembe and Mr. Chizu, counsel for the Respondents. It is mandatory under Section 24(1 )(e) of the Supreme Court Act Cap 25 of the Laws of Zambia, for leave to be sought first before lodgment of appeal. Section 24(1 )(e) of the Supreme Court Act provides that no appeal lies from an order made in chambers by a judge of the High Court without leave of a judge. Since no leave was obtained by the appellant, we have no difficulty in finding that this appeal is improperly before this court. Tn short, the appeal is incompetent. It is therefore dismissed with costs to the Respondent. F. N. M. Mumba SUPREME COURT JUDGE C. S. SUPREME COURT JUDGE T. A. Kabalata ACTING SUPREME COURT JUDGE