Alvin Hanziba Hamusunse v Mazabuka Municipal Council and Ors (CAZ/08/446/2021) [2021] ZMCA 194 (30 November 2021)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) CAZ/08/446/2021 BETWEEN: 3; . TH. 2021 ALVIN HANZIBA HAMUSUNSE (Suing on his own behalf and that of 35 others) COMPLAINANTS AND MAZABUKA MUNICIPAL COUNCIL BERRY CHIWAYA AND DENNY CHEELO (Sued in their capacity as Chairperson and Secretary of the Lubombo Magabbo Settlement Executive Committee) SOUTHERN BIOENERGY COMPANY LIMITED THE ATTORNEY GENERAL 1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4™ RESPONDENT Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 30th November 2021 For the Appellants: For the Respondents: No appearance No appearance RULING Legislation referred to: Court of Appeal Rules, Statutory Instrument No. 65 of 2016 This is a ruling on an application brought by the Applicants by way of Summons to amend dated 16th November 2021. Rl By this application, the Applicants seeks leave of this Court to amend Notice of Appeal and Memorandum of Appeal filed into Court on 8 th November 2021. The Applicants filed an affidavit in support of the application on 16th November 2021 and deposed by Winfred Mwenya, Advocate for the Applicants. The deponent deposed that in the Notice of Appeal and Memorandum of Appeal filed herein on the 8 th November 2021, the word COMPLAINANT instead of the word APPELLANT was inadvertently retained thereon as the parties appeared before the Lands Tribunal, an error he attributed to human limitation. The Notice and Memorandum of Appeal herein were accordingly exhibited together with the intended amended Notice and Memorandum of Appeal as exhibits "WMl" and "WM2" respectively. The deponent also stated that this application had been made before the parties could file the Record of Appeal and Heads of Argument stating that no prejudice would result if the Applicant is granted leave to amend process herein. The matter was scheduled for hearing on 30 November 2021. The parties have indicated that the Court could render its decision without hearing them in view of there being no opposition by the respondents. The respondent's counsel confirmed that they did not oppose the application save to ask for costs. R2 I have considered the application before me. Order VIII of the Court of Appeal Rules provides that a party seeking to amend process may do so before the conclusion of the hearing. From the above provision, clearly the Court is empowered to grant such leave to amend process any time before conclusion of the matter. In the application before me, t h e nature of the amendment being sought is merely typographical and seeks to properly d escribe the standing of the parties in these proceedings. Further, the application has b een brought early, before the parties could file the Record of Appeal and Heads of Arguments. I am satisfied th at no prejudice would result if leave is granted to the Applicant to amend process in the manner being sought. There would also b e no prejudice occasioned in granting the Applicant's Advocates leave to correctly d escribe the complainant as the Appellants . I hereby grant leave to the Applicants to amend Notice and Memorandum of Appeal accordingly. R3 Regarding the issue of costs, I direct that costs to be in the cause, given that the respondents have not incurred any costs by virtue of this application. Dated at Lusaka this 30 th November 2021. ~arpe-Plt';j COURT OF APPEAL JUDGE R4