Bornface Kande Chitenge v Phebe Chilomba (Sued in Her Capacity as Newly Appointed Chieftainess Chiyengele) and Ors (CAAZ/08/011/2025) [2023] ZMCA 443 (15 December 2023)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/011/2025 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN ( ~ ( A 1 L I 5 DEC ;02~ . , BORNFACE KANDE CHITENGE c, ' ru~ · APPELLANT AND PHEBE CHILOMBA (Sued in Her Capacity as Newly Appointed Chieftainess Chiyengele) 1s t RESPONDENT ROTAN KATEMBU (Sued in his capacity as Grand Son of Maseka Chibanda the Son of Chief Chibanda Kanema) WILLIS MASEKA (Sued in his capacity as Grand Son of Maseka Chibanda who was young brother to Chief Chibanda Sakayoung'u) 2 nd RESPONDENT 3RD RESPONDENT DAVID MALUPENGA (Sued in his capacity as Grand Son of Maseka Chibanda brother to Chief Chibanda Sakayoung'u) 4 TH RESPONDENT FRIDAH KATEMBU (Sued in his capacity as Granddaughter of Chief Chibanda Kanema the Son of Chief Chibanda Sakayoung'u STH RESPOND~NT SENIOR CHIEF ISHINDI (Sued in his Capacity as Father and custodian of the Lunda Chieftaincy In Lunda Kingdom) 6TH RESPONDENT Before Hon. Mrs. Justice A. M. Banda-Bobo in Chambers on 15th December, 2025. For the Appellant: Mr. 0 . Samba of Messrs Em manuel and Onesimus Legal Practitioners on brief from Messrs K. Tembo and Company For the 1st Respondent: Mrs. F. K. Muselitata of Messrs Shamakamba and Associates RULING Cases referred to: 1. Nahar Investment v. Grindlays Bank Internationa l (Z) Limited (1984) ZR 81 (SC) 2. John Kapotwe v Kalwa Food Products Limited (Appeal No. 65/2007 (SC) 3. Racheal Lungu Saka v. Hildah Bwa lya Chomba and 1 Other (CAZ/08/059/2017) 4. Tom Orlic and Another v Mwila Chishimba (SCZ/85 1/2021) Legislation and Other Works referred to: 1. The Court of Appeal Rules, Statutory Instrument No . 65 of 2016 1.0 INTRODUCTION 1.1 This is a Ruling on an application by Summons, accompanied by an affidavit to dismiss the appeal for want of prosecution. The same is made pursuant to Order 10 rule 7 of the Court of Appeal Rules (CARs), Act No. 7 of 2016, of the Laws of Zambia. The application was filed on 10th September, 2025. 2.0 BACKGROUND 2. 1 The brief background to this matter is that the parties appeared in the lower Court over wrangles regarding the rightful heir to ascend to the Lunda Chieftaincy of the Chief Chibanda throne. R2 The Appellant was one of the two Respondents in the lower Court. The first Respondent herein was the 1st Respondent in the Court below, while the rest of the Respondents were defendants. 2.2 In a Judgment rendered on 19t h December, 2024, the learned Judge in the lower Court found for the Respondents, including the 1st Respondent, who had been the 1st Defendant. 3. 0 THE APPEAL 3.1 That decision did not please the Appellant herein, who on 15th January, 2025, filed a Notice and Memorandum of Appeal. Four grounds of appeal were fronted. However, the record of Appeal and Heads of Argument were not filed within the stipulated timeframe, despite this Court granting the Appellant an extension of time on two separate occasions. 4.0 THIS APPLICATION 4.1 On 10th September, 2025, the 1st Respondent filed summons as stated at paragraph 1. 1 above. The affidavit in support was sworn by counsel for the 1st Respondent, who gave the background to the appeal. He asserted that on 16th May, 2025, this Court granted the Appellant a 60-day extension of time to R3 file the Record of Appeal and Heads of Argument after they failed to file the same within the stipulated time. 4.2 That despite such extension, the said process has to date not been filed. That the Appellant's non-compliance with the stipulated time has greatly prejudiced the 1st Respondent, as she has not been able to enjoy the fruits of the Judgment of the High Court rendered on 19th December, 2024. 4.3 That currently, there are no proceedings by way of an application for extension of time or an order to file the ROA out of time before Court. 4 .4 The Appellant opposed the application by way of an affidavit in opposition sworn by one Mwamba Nayame Mwansa, counsel for the Appellant. 4.5 It was her deposition that after the lodging of the Appeal, the Appellant failed to give counsel further instructions to prosecute the appeal due to financial constraints despite his desire to prosecute the appeal. That this prompted them to seek leave to extend time, which leave was granted, for another 60 days, on 16th May, 2025. That however, even during tis period, the financial position of the Appellant remained R4 perilous, and this affected his ability to provide adequate instructions. That prompted him to seek a further extension of time to comply. That that application was granted on 5th August, 2025, for another 30 days. 4.6 That on 3 rd September, 2025, the Appellant wrote to the Assistant Registrar of the High Court for Zambia at Ndola, requesting for the typed record of proceedings, which the Appellant is still waiting for. That the delay in accessing the typed proceedings was beyond the Appellant's control, and this has further contributed to the failure to lodge the ROA and heads of argument within the prescribed time. 4.7 It was averred that the Appellant is still desirous of prosecuting the appeal, and the delays were neither deliberate nor intended to disregard the authority of this Court. 4.8 That the last order granting an extension of time lapsed on 5 th September, 2025. That the delay of five days in filing the ROA and heads of argument does not constitute an inordinate delay, as the Appellant was in the process of preparing an application for a further extension of time within which to file the said documents. RS 4 .9 It was averred that a dismissal of the appeal at this state would occasion an unjust and disproportionable outcome, as the appeal raises substantial issues on merit and the Appellant is willing and committed to prosecuting the matter to its logical conclusion. 4.10 That the Respondents shall not suffer any prejudice should this Court allow the appeal to proceed, and it is in the interest of justice that the appeal be heard and determined on its merits. 5.0 ARGUMENTS 5.1 Counsel for each party filed skeleton arguments in support of their respective positions. For brevity, I do not intend to reproduce them here, but will consider them in the Ruling. 6.0 HEARING 6.1 At the hearing, it was agreed that the determination of the application be premised on the filed process on record. Each party chose to rely on the documents on record. R6 7.0 ANALYSIS AND DECISION 7 . 1 I have carefully considered the application, supporting and opposing affidavits, skeleton and arguments proffered by each party. 7.2 The issue for resolution is whether I should dismiss the appeal for want of prosecution 7. 3 Order X rule 7 of the CARs is clear that if an appeal is not lodged within th e stipulated timeframe as stated in rule 6 thereof, the Respondent may apply to court for an order to dismiss the appeal for want of prosecution. Order X rule 6 CARs is couched thus: "6. Subject to any extension of time and to any order made under Order XIII rule 3, the Appellant shall within 60 days after filing a notice of appeal (a) Lodge the appeal by filing in the Registry, twenty-one hard copies of the record of appeal, together with heads of argument ... " 7 .4 It is patent from the above cited provision that a litigant who wishes to appeal any decision of the lower Court has to file the ROA and Heads of Argument within a stipulated timeframe, R7 after making his or her intention to appeal known, by filing a Notice and Memorandum of appeal. Order X rule 7, CARs, on which this application is anchored, states that: "7. If an appeal is not lodged within the time stipulated under rule 6, the Respondent may make an application to the court, for an order dismissing the appeal for want of prosecution ... " 7.5 It is also clear that where the timeframe is not adhered to, and no step is taken to enlarge time, the Respondent is at liberty to apply to have the appeal dismissed for want of prosecution as has been done in casu. 7 .6 Our courts have consistently maintained the position that rules of court, must be complied with. Further, that stipulated timeframes must be complied with, and where need arises, a party should apply for enlargement of time to ensure compliance. The case of Nahar Investment v. Grindlays Bank International (Z) Limited1 provides guidance on this issue. 7. 7 Courts will only dismiss a matter for want of prosecution in exceptional circumstances. In John Kapotwe v Kalwa Food Products Limited2 it was guided that: R8 "Although courts have inherent jurisdiction to dismiss matters for want of prosecution, this should only be done in exceptional circumstances" 7 .8 The Supreme Court went on to tabulate what these exceptional circumstances are , when it said inter alia, that: "The power should be exercised only where the court is satisfied either (i) That the default has been intentional or contumelious, e.g disobedience to a pre empting order of the court or conduct amounting to an abuse of the process of the court; (ii) That there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers; (iii) That such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or as such as is likely to cause serious prejudice t o the defendant, e ither as between each other or between them and a third party." 7.9 In the matter before me, the Notice and Memorandu m of Appeal were lodged on 15 th January, 2025. After the initial Statutory R9 Sixty (60) days, leave to extend time to file the ROA and Heads of Argument was granted on 16th May, 2025, for a further sixty (60) day period. Another extension of time was sought and an additional thirty (30) days in which the Appellant was allowed to file , was granted. Suffice to state at this point, that the Appellant had by then not only depleted the sixty (60) days allowed, but also the twenty-one (21) days window, as stated in the case of Racheal Lungu Saka v. Hildah Bwalya Chomba and 1 Other3 . 7.10 However, as at the time of the application to dismiss, filed on 10th September, 2025, the Appellant, according to the averments in the affidavit in opposition to the current application, had written to the Assistant Registrar of the High Court, at Ndola, requesting the typed record of proceedings and that the Appellant was still waiting receipt of the said proceedings. That this further contributed to the delay. Clearly this was a rather late request, as this should have been done at the time a request for extension of time was first made, as the High Court was expected to prepare the record; and needed time to do so. Further at the time this application to dismiss was RlO made, there was no application before Court for another extension of time within which to file th e ROA and Heads of Argument. 7 . 11 In the case of Tom Orlic and Another v Mwila Chishimba4, the Supreme Court guided that an application for extension of time ough t to be made before the expiry of the period in which to apply for an extension of time. It was guided that: "It is quite clear to me from the affidavit in opposition, that the 2 nd appellant has no plausible explanation for not applying for an extension of time before the sixty (60) days expired ... I therefore agree with Mr. Kabwe that such applications should be made before the sixty days expires and there must be sufficient reasons for doing so." 7 . 12 Looking at the amount of time that has lapsed without the Appellant taking steps to prosecute the appeal, it is my view, and as stated by the Respon dent, that th e delay has greatly prejudiced the 1st Respondent, as she has not been able to enjoy the fruits of the Judgment of the High Court. I deem that the delay has been inordinate and inexcusable. Rll 7.13 In conclusion, it is my view that this is a matter in which I can exercise my discretion and dismiss the matter for want of prosecution. The fact that the Appellant had the initial sixty (60) days, an additional twenty (21) day window and subsequently had extensions of sixty (60) and thirty (30) days, militates against him. I find merit in the application and the appeal is dismissed for want of prosecution. 7 . 14 Costs are for the 1st Respondent, to be taxed in default of agreement. DELIVERED AT LUSAKA THIS 15TH DAY OF DECEMBER, 2025. ·············~ ······················ HON. MRS. JUSTICE A. M. BANDA-BOBO COURT OF APPEAL JUDGE R12