Fredrick Mwiinga v Stephen Jere (Appeal No.73/2024) [2025] ZMCA 34 (25 February 2025)

BETWEEN: AN 1 STEPHEN JERE RESPONDENT Coram: Chashi, Makungu and Muzenga , JJA On the 14t h January, 6 t h and 25t h February 2025 For the Appellant: In person For the Respondent: Mr. M. Kasaji of Messrs Christopher Mundia & Co RULING Makungu, JA delivered th e ruling of th e Court. Case referred to: 1. Monster Energy Company v NBA Properties Inc, CAZ Appeal No. 133/2019 (unreported) 2 . NFC Africa Mining Plc v Techpro Zambia Limited (2009) Z. R 236 3 . Afritec Asset management Company Limited & CPD Properties Limited v The Gynae and Antenatal Clinic Limited & Kenneth Muuka SCZ Appeal No. 64 of 2015. 4. Investment Bank PLC v Build It Hardware Limited and Yousff Essa SCZ No. 3 of2013 5. Access Bank Ltd v. Group Five/ ZCON Business Park Joint Venture (Suing a s a (Firm) (SCZ I 8/ 52/ 2014). Legislation referred to: 1. The Court of Appeal Act No. 7 of 2016 2 . The Court of Appeal Rules Statutory Instrument No. 65 of 2016 Rl 3. The High Court Act, Chapter 28 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 This is the respondent's application to dismiss the appeal for irregularity pursuant to Section 12 (1) and 23 (1) (e) of the Court of Appeal Act as read with Order 10 rule 9 (2) of the Court of Appeal Rules. 2.0 BACKGROUND 2 .1 On 11 th August 2023, the appellant commenced an action against the respondent by way of a writ of summons accompanied by a statement of claim, seeking, inter alia, the fallowing reliefs: (a) An order of interim attachment of the property in issue. (b) In the alternative, an order for eviction directed at all tenants put in the house by the defendant or an order that the tenants pay rentals into Court until full determination of the matter. (c) Damages for inconvenience, oppression, stress, and trauma suffered by the plaintiff. 2. 2 The writ of summons and statement of claim were accompanied by an application for an order for interim injunction which was made pursuant to Order 27 Rule 1 of the High Court Rules. R2 2 .3 On 18th August 2023, the lower Court granted the appellant an ex parte interim injunction order pending the inter partes hearing of the injunction application. 2 .4 On 19th December 2023, the lower Court discharged the ex parte order granted on 18th August 2023 for lack of merit. 2 .5 On 8 th February 2024, the appellant obtained an order to stay the ruling in question, and an order granting leave to appeal to this Court. 2 .6 The Notice and memorandum of appeal were filed 1n the Court of Appeal on 12th February 2024. 2 . 7 On 7 th March 2024, the respondent applied before a single judge of this Court to have the appeal dismissed for irregularity. 2 .8 On 25th March 2024, the appellant filed an appeal before this Court. 2 . 9 The appeal was heard by the full bench of this Court during the October 2024 Kabwe session. However, before the judgment could be delivered, one of the panel members left the Court. The matter was cause-listed for a rehearing on 14th January 2025. 2 . 10 On 13th January 2025, the single judge, who was scheduled to hear the respondent's application to dismiss, referred the matter to the full bench pursuant to Order 10 Rule 6 of t he Court of Appeal Rules. R3 3.0 AFFIDAVIT IN SUPPORT 3. 1 In support of the application to dismiss the appeal for irregularity, the respondent swore an affidavit dated 7 th March 2024. In his affidavit, he averred that the appellant commenced this case against him through a writ of summons and a statement of claim. Along with this, the appellant also applied for an ex parte interim injunction. The lower Court granted the ex parte interim injunction on 4 th September 2023. 3.2 In response, the respondent filed a memorandum of defence and an affidavit opposing the application for the interim injunction on 7 th September 2023. 3 .3 On 19th December 2023, the lower Court delivered its ruling on the interim injunction, ultimately discharging it. 3.4 Dissatisfied with this ruling, the appellant decided to appeal against it. 3.5 The respondent averred that based on legal advice from his advocates, which h e believes to be true, the a ppellant should have renewed the application for an interim injunction before this court instead of filing an appeal. 3 .6 He further averred that the grounds of appeal contained in the memorandum of appeal are filled with narratives and arguments rather than proper legal grounds. R4 3 .7 He went on to state that, based on legal advice from his advocates, which he believes to be true, the appeal is irregular and ought to be dismissed. 4 .0 SKELETON ARGUMENTS IN SUPPORT 4.1 The respondent filed skeleton arguments in support of the application on 7 th March 2024. In these arguments, counsel first contended that, since the injunction had been discharged by the lower Court, the proper procedure would have been to renew the application before a single judge of th is Court rather than filing an appeal. Counsel relied on Section 23(1)(e) of the Court of Appeal Act which provides as follows: "An appeal shall not lie from an order made in chambers by ajudge of the High Court or by a quasi judicial body or from an interlocutory order or interlocutory judgment made or given by a judge of the High Court or by a quasi-judicial body, without the leave of that judge or quasi-judicial body or, if that has been refused, without the leave of a judge of the Court. " 4 .2 Secondly, it was argued that the grounds of appeal in the memorandum of appeal contained narratives and arguments, contrary to procedural requirements. Reliance was placed on Section 12(1) of the Court of Appeal Act , which stipulates that an appeal shall lie to this Court in accordance with its rules. LL . 3 Further reliance was placed on the case of Monster Energy Company v NBA Properties Inc 1 ., in which this Court RS dismissed an appeal because the grounds of appeal contained arguments and narratives, contrary to Order 10/9/2 of the Court of Appeal Rules . 4. 4 Additionally, the case of NFC Africa Mining Pie v Techno Zambia Limited2 was cited, where the Court held that: "Rules of the Court are intended to assist in the proper and orderly administration of justice and as such must be strictly followed." 4 .5 In light of the foregoing submissions, we were urged to dismiss the appeal. 5 .0 AFFIDAVIT IN OPPOSITION 5. 1 The appellant filed an affidavit in opposition on 5 th February 2025, sworn by himself. The essence of the affidavit is that the respondent's application for an order to dismiss the appeal for irregularity is improperly before this Court, as no sufficient reasons have been provided to justify its dismissal. He further stated that he fallowed the correct procedure by proceeding before this Court by way of appeal rather than renewal of the application for an interim injunction. 5 .2 The rest of the affidavit does not address the application at hand but instead contains matters more appropriately suited for the main appeal. Accordingly, we shall not recapitulate them. 6. 0 SKELETON ARGUMENTS IN OPPOSITION R6 6. 1 The gist of the appellant's skeleton arguments filed on 5 th February 2025, is that on 8 th February 2024, the lower Court granted him an order for leave to appeal and stay of execution of the ruling in issue. He argues that he followed the correct procedure by appealing against the ruling instead of renewing the application for an interim injunction before this Court following the lower Court order granting him leave to appeal. 'l. O HEARING OF THE TO DISMISS APPEAL 7 .1 On 6 th February 2025, we heard both the appellant in person and the respondent's advocates on the application to dismiss the appeal for irregularity. Both parties relied on the affidavits and arguments on r ecord. 8.0 ANALYSIS AND DETERMINATION 8.1 We have considered the affidavits and skeleton arguments filed by both parties. 8 .2 The main issues for determination are: (a) Whether the a ppellant's a ppeal is irregular and (b) Whether the grounds of appeal violate Order 10 Rule 9(2) of the Court of Appeal Rules by containing narratives and arguments. 8 .3 The appellant contends that he followed the proper procedure by appealing the ruling that discharged the ex parte order for an interim injunction, rather than renewing the application for an interim injunction before a single judge of this Court. R7 8 .4 We note that on 7 th February 2024, the appellant obtained leave from the lower Court to appeal against the ruling dated 19 th December 2023 which discharged the exparte order for an interim injunction. 8 .5 The order discharging the interim injunction was interlocutory. While the appellant argues that leave to appeal was granted by the lower Court, this does not cure the procedural defect in the mode of bringing the matter before this Court. The appropriate procedure, as per the established precedent, should have been a renewal of the application before a single judge of this Court. 8 .6 We are of the view that the grant of leave to appeal was misleading to the appellant who is a layperson. We therefore urge the lower Courts to be careful not to grant leave to appeal where it is inappropriate. 8 .7 In the case of Afritec Asset Management Company Limited & CPD Properties Limited v The Gygnae and Antenatal Clinic Limited & Kenneth Muuka3 , the Supreme Court guided that: "An application for an interlocutory injunction coming to us or the Court of Appeal will not result in afinal decision or decision on appeal because, it is interlocutory in nature as it will pend the final determination of the matter in the High Court. Such application should thus be treated as such and be determinable by a singlejudge of this Court and the Court of Appeal by way of renewal of the R8 application. However, where the decision is that on a final injunction, the position is different, it must come on appeal, as the decision by this Court or Court of Appeal on it will be a final decision or a decision on an appeal. To this extent we misdirected ourselves in the Manal case when we held that such an application should come to an appellate court by way of an appeal." 8 .8 To this end Order X, Rule 2(1) of the Court of Appeal Rules, stipulates: "An application to a single judge shall be made by notice of motion or summons within fourteen days from the date of the decision complained of." 8 .9 Based on the above authorities, the appellant should have renewed the application for an injunction within 14 days of the High Court decision instead of appealing. On failure to follow the laid down procedure, in the case of Investment Bank PLC v Build It Hardware Limited and Yousff Essa4 the Supreme Court held that the appellant was wrong to appeal rather than renew the application before a single judge, and therefore dismissed the appeal. 8. 10 We also rely on the decision in Access Bank Ltd v. Group Five/ZCON Business Park Joint Venture (Suing as a Firm)5 where the Supreme Court cautioned in the following words: " ... although matters should, as much as possible, be determined on their merits rather than be disposed of on technical or procedural points, the ends of justice also require that this court, indeed all courts, must never provide succor to litigants and their counsel who R9 exhibit scant respect for ntles of procedure as rules of procedure and time lines serve to make the process of adjudication fair, just, certain and even-handed". 8 .11 Given the foregoing, we find it unnecessary to address the second ground raised by the respondent, concerning the inclusion of narratives and arguments in the grounds of appeal, as the appeal has already failed on the first gr ound. 9.0 CONCLUSION 9 . 1 In sum, the procedure adopted by the appellant in bringing this matter before this Court is contrary to the Court of Appeal Rules, 20 16. Accordingly, the respondent's application to dismiss the appeal is granted 'th costs to the respondent. The same is to be taxed in lt in agr eement between the parties. J. CHASHI COURT OF APPEAL JUDGE C. K,MAKUNG COURT OF APPEAL JUDGE K. MUZENGA COURT OF APPEAL JUDGE RlO