Innovative Life Assurance Limited v Chiza Choonya Simpungwe (CAZ/08/522/2024) [2025] ZMCA 77 (11 June 2025)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/522/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: INNOVATIVE LIFE ASSURANCE LIMITED APPLICANT AND CHIZA CHOONYA SIMPUNGWE RESPONDENT ( CORAM: Honourable Mr. Justice Justin Chashi, JA in Chambers ON: 11th June 2025 For the Applicant: L. Siakalumbi, standing in for Messrs Melody Mwansa Legal Practitioners For the Respondent: S. T Banda, Messrs Simeza Sangwa & Associates RULING Cases referred to: 1. Eustina Chanda Simusamba v African Banking Corporation Limited• CAZ Appeal No. 43 of 2023 2. Phi lip Mutantika and Mu lyata Shea l S v Kenneth Chipungu - SCZ Judgment No. 13 of 2014 Rules referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of l.0 INTRODUCTION -R2- 1.1 This is an application by the Applicant who is the appellant in the appeal before this Court. The application is for leave to restore the matter to the active cause list and was filed on 16th April 2025. 1.2 The Application has been made by summons pursuant to Order 10/ 19 (2) of The Court of Appeal Rules 1 (CAR) ( and is accompanied by an affidavit and skeleton arguments. 2.0 BACKGROUND 2. 1 The Applicant filed a notice and memorandum of appeal in this Court on 29th October 2024. Its Advocates at the time were Messrs Reagan Blankfein Gates Legal Practitioners, who by Order of this Court dated 6th ( December 2024, withdrew from representation. On 26th December 2024, Messrs Melody Mwansa Legal Practitioners, filed a notice of appointment as Advocates for the Applicant. 2.2 On the same date, the Applicant filed a notice of application for extension of time within which to file the record of appeal and heads of argument pursuant to Order 13/3 (3) CAR. -R3- 2.3 On the return date on 7 th March 2025, none of the parties were before court. The following Order was therefore made: "None of the parties are before court, in particular the Applicant. The application is therefore struck off the active cause list with liberty to restore within the next fourteen ( 14) days, failure to which the application shall stand dismissed for want of prosecution. Costs in the cause." 2.4 As earlier alluded to, the application to restore was only made on 16th April 2025. 3.0 ARGUMENTS IN SUPPORT OF THE APPLICATION 3.1 The Applicant attributed the failure to attend court due to the confusion between its previous Advocates and the current ones. Our attention was drawn to Order 10/ 19 (2) CAR; and the case of Eustina Chanda Simusamba v African Banking Corporation Limited1 . 3.2 It was submitted that Order 10/19 (2) empowers the Court to restore an appeal for hearing where it has been dismissed or struck out. ( ( 4.0 ARGUMENTS IN OPPOSITION -R4- 4.1 In opposing the application, the Respondent filed an affidavit and skeleton arguments on 14th May 2025. According to the Respondent, the application was wrongly before this Court. It was also submitted that, the Applicant has not demonstrated reason for the court to restore the matter. ( 4.2 It was the Respondent's argument that Order 10/ 19 (2) was not applicable to this matter and does not clothe the court with jurisdiction to entertain or grant the application being sought. That the said provision relates to restoration of an appeal, which is struck off or dismissed at the hearing of an appeal for nonattendance. ( 4.3 It was also submitted that the Eustina Chanda Simusamba 1 case, only applies to restoration of appeals. The Respondent argued that the failure to properly move the court essentially deprives the court of authority. 4.4 In the alternative, in case this court is of the view that Order 10 / 19 (2) is applicable, it was submitted that the Applicant has not provided sufficient reason for the court to restore the matter. Reference was made to the -RS- case of Philip Mutantika and Mulyata Sheal S v Kenneth Chipungu2 where the Supreme Court held that "the incompetence or negligence of one's legal Counsel cannot be sufficient ground for restoring an appeal that was dismissed." 5.0 ANALYSIS AND DECISION 5.1 I have considered the affidavits and the arguments by ( the parties. Order 10 / 19 CAR under which this Court has been moved, provides as follows: "1 9 (l) Subject to rule 1 8, if on any day fixed for the hearing of an appeal - (a)The appellant does not appear in person or by practitioner, the appeal may be dismissed ; ( (b) The appellant appears a nd the Respondent fails to appear either in person or by practitioner, the appeal shall proceed in the absence of such Respondent, unless the court for any sufficient reason a djourns the hearing; or; ( ( -R6- (c) No p arty appears either in person or by p ractit ioner, the appeal may be adjourned stntck out or dismissed. (2) Where an appeal is dismissed, allowed, or struck out under subrule l, a party who was absent may apply to the court within seven days of the dismissal, a llowing or striking out of the appeal, for the rehearing or hearing of the appeal as the case may be, a nd, where it is provided that there was sufficient reason for the absence of that party, the court may order that the appeal be restored for hearing, upon such terms as to costs or otherwise as it considers just." 5.2 It is evident that the Order I gave on 7 th March 2025, was "an unless Order." The Applicant was at liberty to apply for restoration of the matter to the active cause list within fourteen (14) days from the date the matter was struck off, failure to which the application was to stand dismissed for want of prosecution. 5 .3 The Applicant did not file the application for restoration within fourteen (14) days. The application was filed ( ( -R7- outside the fourteen days without leave of the court for extension of time within which to file the application. The application in that respect is incompetently before this Court. 5.4 In addition, this Court has been moved under Order 10/ 19 (2) CAR, which as correctly pointed out by the Respondent applies to hearing of appeals. The said provision does not apply to interlocutory applications which are struck out. So was the Eustina Chanda Simusamba1 case, which was cited by the Applicant. 5.5 This Court has time and again emphasized that parties should not only cite the provision of the law they are relying on, but should do so by citing the correct provisions. This enables the Court to determine whether it has jurisdiction to entertain the application or not. Here again, having been moved under the wrong provisions of the law, the application is incompetently before this court. 6.0 CONCLUSION 6.1 For the aforestated reasons, this is not a proper and fit application for granting the application for restoration as the application is incompetently before this Court. The application is accordingly dismissed with costs to -RS the Respondent. Same ed 1n default of agreement. . CHASHI COURT OF APPEAL JUDGE ( (