Brenda Kabukabu Muntanga- Sipalo and Ors v Belinda Moola Muntanga- Lweendo and Anor (APPLICATION NO. 99/2024) [2025] ZMCA 148 (19 November 2025)

IN THE COURT OF APPEAL HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ______ ,.. I • - . I ",., .• ~ ~ 1,.,, !Ut: EGISTRY 2 SIBESO SIPALO FRANCIS SIPALO AND 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT BELINDA MOOLA MUNTANGA-LWEENDO 1 ST RESPONDENT DAVY JAAMA LWEENDO 2ND RESPONDENT CORAM: Mchenga, DJP, Majula and Muzenga, JJA On 11th November 2025 and 19th November 2025 For the Appellant: Mr. P. Mapulanga, Messrs Japhet Zulu Advocates For the Respondent: No appearance RULING MUZENGA JA, delivered the Ruling of the Court. Cases referred to: 1. Zinka v. Attorney General (1990) ZR 73 2. John Sangwa and Simeza Sangwa and Associates v. Hotelier and Ody's Work Limited - SCZ/8/402/2012 3. DE Nkhuwa v. Lusaka Tyre Services Limited (1977) ZR 43 4. Nahar Investments v. Grindlays Bank International Zambia Limited (1984) ZR 81 5. Stanley Mwambazi v. Morester Farms Limited (1977) ZR 108 R2 6. Gilcon Zambia Limited v. Kafue District Council and Bradford Machila - Appeal No. 10 of 2010 and 43 of 2009 7. Stanton and Another v. Callaghan (1998) 4 All ER 961 8. Edwin Mwewa Chikonde v. The Attorney General - Appeal No. 149/2023 Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 2. The Court of Appeal Act, No. 7 of 2016 3. Halsbury's Laws of England 4 th Edition Volume l(i) 1.0 INTRODUCTION 1.1 This application is by way of a Notice of Motion for an order to reverse, vary or discharge the decision of a single Judge of this Court dated the 5th March 2024, pursuant to Section 9(b) of the Court of Appeal Act, No. 7 of 2016 as read together with Order 7 Rule 1 and Order 8 Rule 3, Order 10 Rule 2(8) of the Court of Appeal Rules, Statutory Instrument No. 65 of 2016. 2.0 BACKGROUND 2.1 The background to this application is that this Court delivered a judgment on the 10th August 2021. On the 2nd January 2024 the 2nd respondent made an application before a single Judge of this Court for interpretation of the said judgment. The application was opposed by the 3rd applicant on account that our judgment had no ambiguity, to require interpretation. The single Judge heard the application and delivered his Ruling on the 19th January 2024 (a corrected date, otherwise the actual Ruling bears the 19th January 2023 and the court stamp has 19th December 2023. This was R3 corrected in a subsequent Ruling dated the 5th March 2024 by the same single Judge, which Ruling is the subject of the within application). 2.2 Dissatisfied with the Ruling of the single Judge of this Court, the applicants desired to move the full court to vary, reverse or discharge the said Ruling. However, since the 14 days within which to do so had lapsed, they applied before the single Judge for extension of time in which to file the application, on the 9th February 2024. The single Judge endorsed the date for hearing of the application as the 7th March 2024. To the surprise of the applicants, when they turned up for hearing on the aforementioned date, they were informed that the single Judge delivered the Ruling 2 days earlier, dismissing the application. 3.0 DECISION OF THE SINGLE JUDGE 3.1 The single Judge of this Court considered the appellants' application for extension of time on 5th March 2024 and dismissed it on the basis that the reasons for the delay were insufficient to grant an application for extension. 4.0 THIS APPUCA TION 4.1 Dissatisfied with the single Judge's verdict, the appellants filed this application. The same was supported by an affidavit sworn by Francis Ngenda Sipalo, the 3rd appellant herein. It is deposed that being dissatisfied with the single judge's ruling of 19th January 2024, they lodged an application for extension of time within which to file R4 a Notice of Motion to reverse the ruling of a single judge as the 14 days within which the application was to be made had lapsed. 4.2 That despite being issued summons with a hearing date of 7th March 2024 at 09:00 hours, the Honourable single Judge delivered a ruling dismissing the appellant's application for extension of time citing the reasons filed by the respondents on the same day. To their utter dismay, when they attended Court at on 7th March 2024 they were informed that the court had already made a decision two days earlier and they were availed the ruling of the court. 4.3 It was contended that there may have been a procedural irregularity which may have in turn inadvertently created the perception of bias in the manner in which the ruling was delivered in advance of the date of hearing where the parties would have an opportunity to make their case before the Court. 4.4 In further support of this application, skeleton arguments were filed in which it was argued that upon varying, reversing or discharging the single judge's ruling of 5th March 2024, they further sought leave to file a composite Notice of Motion to vary, reverse, or discharge the earlier ruling of the single judge of the Court dated 19th January 2024. 4.5 We were referred to the case of Zinka v. Attorney General 1 in making allegations of bias. It was submitted that the procedural irregularity and the perception of bias it inadvertently created form RS sufficient grounds for this Court to vary, reverse or discharge the ruling of the single judge. 4.6 Relying on a number of authorities, the appellants argued that the power to dismiss an application without giving the party in default a chance to remedy their default, the court must first be satisfied that any default in the application was deliberate, intentional and contumelious behaviour. That the record would show that there was no deliberate, intentional or contumelious disregard on the part of the appellant but the 7 days delay was occasioned by the illness of the applicant. 4. 7 It was further submitted that there was no inordinate and inexcusable delay in the steps taken by the appellant to prosecute its appeal as they still had an opportunity under the Rules to apply for extension of time during the twenty-one (21) days. 4.8 Further relying on John Sangwa and Simeza Sangwa and Associates v. Hotelier and Ody's Work Limited,2 DE Nkhuwa v. Lusaka Tyre Services Limited3 and Nahar Investments v. Grind lays Bank International Zambia Limited4 for the position that the Apex Court has extended time and granted leave to applicants to take steps for prosecution of appeals on merits despite the lapse of the requisite time for taking such steps. 4.9 Reliance was also placed on Stanley Mwambazi v. Morester Farms Limited5 for the submission that this matter deserved to be afforded the favourable treatment as there was no unreasonable R6 delay, malafides or improper conduct of the action on the part of the appellant in making the application. 4.10 The respondents did not file any documents opposing the application herein. 5.0 HEARING 5.1 At the hearing, Mr. Mapulanga placed sole reliance on the affidavit in support, as well as the skeleton arguments. We have noted these written submissions which we do not intend to reproduce herein. The respondents were not before Court. We allowed learned counsel for the appellants to proceed after we satisfied that service was effected. 6.0 OUR DECISION 6.1 We have carefully considered the respondent's Notice of Motion, the affidavit and the skeleton arguments relied on by Counsel for the appellant. We have also considered the circumstances surrounding this application and the Ruling of the single Judge, which the appellant assails. 6.2 The appellant's contention is that the single judge should have heard them before dismissing their application for extension of time on 5th March 2024 especially that a hearing date of 7th March 2024 had been issued to the parties. 6.3 Several judicial and academic authorities have established the principles of natural justice, and in this respect, the erudite authors R7 of Halsbury's Laws of England 4th Edition Volume 1(i) paragraph 105 and 107 state as follows: "The Rule that no man is to be condemned unless he has been given prior notice of the allegations against is a him and a fair opportunity to be heard fundamental principle of justice ... " 6.4 The apex court described the failure to afford parties an opportunity to be heard or argue their matter before having their action dismissed or condemned as a procedural impropriety in the case of Gilcon Zambia Limited v. Kafue District Council and Bradford Machila6 wherein it observed as follows: "We restate what we said in Chisata v. Attorney General that the Order to dismiss the whole action without calling upon counsel to argue the matter was irregular and should not have been made. This was procedural impropriety ... " 6.5 In the case of Stanton and Another v. Callaghan7 the Court emphasised the principle that it is the Court's duty to ensure that each of the parties before it are accorded smooth administration of justice. 6.6 It is the preserve of the court, to dismiss an action for want of a cause of action. However, in exercising this discretion, the court must do so, judiciously, ensuring that it be exercised taking into account the demands of justice and only arrived at, in clear and obvious circumstances. R8 6. 7 Thus, whether or not the single judge would have still arrived at the same conclusion of dismissing the application had it heard the applicants is another matter. We say so because the applicants' delay in making the application was by 7 days and an excusable explanation was given for the delay, being that the applicant was out of town and was unwell . The reasons for the delay and period of 7 days are sufficient circumstances to warrant extending time. The learned single judge unfortunately merely glossed over the reason advanced for the delay and dismissed their application. 6.8 We did state in Edwin Mwewa Chikonde v. The Attorney General8 that deficiencies in the court's reasoning can affect the fairness of the whole matter. 6.9 It goes without saying therefore that the applicants were unfairly prejudiced in this case and we find that this is a proper case in which to extend time. 6.10 In the final analysis, it is our view that there is merit in the application. The decision of the single Judge is hereby reversed. The appellants are granted 14 days in which to file an application to the full court. Costs wil - . DEPUTY JUDGE PRESIDEN ----- -~ -----······ B. M. ~ -LA COURT OF APPEAL JUDGE ····~GA ···-~·-·· ······· ·· COURT OF APPEAL JUDGE