Centremark Construction Limited v Abraham Mwila (Application 96 / 2024) [2025] ZMCA 175 (18 November 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) Application 96 / 2024 BETWEEN: CENTREMARK CONSTRUCTION LIMITED APPELLANT AND ABRAHAM MWILA 1 a : ::,, 202s REGISTRY 2 RESPONDENT Coram: Mcheng nd Muzenga, JJA On 11 t h November, 2025 and 1 gth November, 2025 For the Appellant Dr. M. Kalifungwa of Messrs Kalifungwa & Associates For the Respondent Mr. M. Chibwe of Messrs flunga & Company RULING MAJULA JA, delivered the Rulin g of th e Court Case referred to: 1. JNC Holdings v Development Bank of Zambia, SCZ Appeal No. 87 of 2012 Legislation referred to: 1. 2. 3. The Rules of the Supreme Court of England (White Book, 1999 edition) The Court of Appeal Rules, Statutory Instrument No. 65 of2016 The High Court Rules, Cap 27 of the Laws of Zambia R2 1.0 INTRODUCTION 1.1 This is a ruling on the Respondent's Notice of Motion to raise preliminary objections to the hearing of this appeal pursuant to Order XIII Rule 5(1) of the Court of Appeal Rules, 2016, read together with Order 14A Rule 1 and Order 33 Rule 3 of the Rules of the Supreme Court of England, 1999 (White Book). The Notice was accompanied by an affidavit and skeleton arguments filed on even date . 2.0 BACKGROUND 2.1 On 29 th July 2024, the Appellant lodged the record of appeal and heads of argument. The Appellant opposed the notice through an affidavit in opposition, contending that it had been filed out of time , beyond the prescribed fourteen (14) days under Order XIII Rule 5(1), and without leave of the Court, rendering it procedurally defective. 3.0 THE APPELLANT'S OBJECTION AND THE COURT'S CONSIDERATION 3. 1 In opposing the application, Dr. Kalifungwa, Counsel for the Appellant has raised an objection to the competence of the motion. He has argued that the Respondent's Notice to Raise a Preliminary Objection, filed on 11 th October 2024, was incompetent as it was lodged more than seventy (70) days after service of the Record of Appeal on 29 th July 2024, in breach of R3 Order XIII Rule 5(1) of the Court of Appeal Rules, 2016, which mandates that such objections be raised within fourteen (14) days. No leave having been sought to regularise the delay, the notice was said to be improperly before the Court. 3.2 We have considered the record as well as the rival submissions by Counsel. It is settled law that Order XIII Rule 5(1) of the Court of Appeal Rules, 2016 requires a Respondent intending to raise a preliminary objection to file a notice within fourteen (14) days of being served with the Record of Appeal. For ease of reference it provides as follows: ''A respondent who intends to make a preliminary objection in relation to an appeal shall give notice of such preliminary objection to the Court and the other parties within fourteen days of receipt of the record of appeal. 11 3.3 In this case, the Respondent was served with the Record of Appeal on 29th July 2024, but only filed the notice on 11 th October 2024, well beyond the prescribed period. No application for extension of time (leave) was made to regularise this late filing. Where a party fails to act within a prescribed time without obtaining the necessary leave, such process is rendered incompetent and of no effect. The Supreme Court underscored a vital point of law in JNC Holdings v Development Bank of Zambia, 1 when it held: ••• it is settled law that if a matter is not properly before a court, that court has no jurisdiction to make any orders or grant any remedies. 11 R4 3. 4 In this case, we are of the considered view that an application filed out of time without leave is incurably irregular and must be dismissed. As the Respondent's notice was indeed filed out of time and without the requisite leave, the preliminary objection is procedurally defective and not properly before the Court. Consequently, the Notice of Motion is dismissed for having been filed out of time and without leave. 3.5 Costs follow the event, to be taxed in default of agreement. DEPUTY JUDGE PRESIDENT · · ... -~ .. IC '.:;·1 2025 -- ~ -· ·· · ·· · · · · · · · B. M. Majula REGISTRY 2 K. Muzenga COURT OF APPEAL RT OF APPEAL JUDGE