Fely's Enterprises Limited v Zambia Breweries Limited (Appeal No. 32 of 1995) [1995] ZMSC 57 (20 June 1995)

lH THE SUPREME COURT FOR ZANBIA HOLDEN AT LUSAKA Civil Jurisdiction) Appeal No. 32 of 1995. BETWEEN: FELY 1S ENTERPRISES LIMITED APPELLANT ANO ZAMBIA BREWERIES LIMITED RESPONDENT Coram: Gardner A. C. J •• Chaila and Muzyamba JJS., 20th June, 1995. o. M. Lufungulo of Lufungulo and Company appeared on behalf of the Appellant. Mr. 0. A. E. Dzekedzeke of Ozekedzeke and Company, appeared on behalf of the Respondent. J U D 6 M E N T Gardner A. C. J •• delivered the judgment of the court. This is an appeal against an order of a High Court Judge on appeal setting dSide the order of the Deputy Registrar and granting unconditional leave to appeal to the respondent. The facts of tne case are that 'tne appellant ilns a claim against the respondent and for this purpose serv~d a writ upon the respondent's registered office. No appearance was entered and judgment in default of appearance was entered by the appellant. Application was made oy the respondent to set aside the judgment in default and at the h@aring before the Deputy Registrar, an affidavit was submitted averring that the writ had not been properly served. Although there was indication that the respondent wished to defend, no indication of what were the iJ!OW1(fs of defence was put forward. 2/ ••• - J2 - The Deputy Registrar found that the writ had in fact been properly served, contrary to the suggestion in the respondent's affidavit, and he also found that no defence was disclosed. He therefore. ordered that the application to set aside the judgment should be dismissed. The respondent appealed against this decision to a judge of a High Court. Before the judge of the high Court there were further affidavits and on reading these, the learned trial judge came to the conclusion that the respondent had disclosed a defence and for this reason he set aside the order of the Deputy Registrar and made an order as follows:- 11For the avoidance of the doubt the appeal is allowed. The decision of the lellrned Deputy Registrar is set aside and I order the defendants to enter appearance and file their defence within seven days. 11 That was the equivalent of granting unconditional leave to defend. Mr. Lufungulo before us has argued that, despite the provisions of section 24 of the Suprene Court Act which provides that no appeal lies to the Supreme Court against the granting of unconditional leave to defend by a judge, this appeal is against the order refusing to support the judgment of the Deputy Registrar. Mr. Lufungulo has argued that he is entitled to argue against that portion of the High Court judge•s judgment which dealt with the setting aside of the Deputy Registrar's decision and that his inability to appeal against the grant of leave to appeal is another matter entirely. We are quite satisfied that the intention of the legislature was that this court should not look into the merits and demerits of the granting of an order of unconditional leave to defend anci for this reason it was not - J3 intended that this court should look into the circumstances which occurred before such an order was made. For this reason we cannot accept that there ts an appeal against one of two parts of the Judges or<1,r. We are quite satisfied, as we have said, that section 24 effectively debars any appeal at all from being heard by this court when a High Court judge has granted unconditional leave to defend. For this reason this appeal ts dismissed with costs • • • • • • • • fl . . . . . . .. . . . . . . . . . . . . . . . . . B. T. Gardner su.-RetE COURT JUOOE ..••••••...••..•••••..•...... ... M. S. CHAILA SUPREME COURT JUDGE ············ ···················· W. M. MUZYAMBA SUPREME COURT JUDGE