George Muyunda Munalula v Alexander Kasongo (APP/217/2022) [2024] ZMCA 220 (17 April 2024)

IN THE COURT OF APPEAL OF ZAMBIA APP/217/2022 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 1 7 APR r ·; r - . - I ,.,,, GEORGE MUYUNDA MUNALULA APPELLANT AND ALEXANDER KASONGO RESPONDENT Coram : Mchenga DJP, Muzenga and Chembe, JJA 24 t h March 2024 and 17 th April 2024 For the Appellant : M. Mujajati, Leonard Lane Partners For the Respondent : K. L . Nyimbiri, Legal Aid Counsel, Legal Aid Board JUDGMENT Mchenga DJP, delivered the judgment of the court Cases referred to: l . Charles Mushitu v. Swift Capital Limited , CAZ Appeal No . 110/2022 Legislation referred to: 1 . The Court of Appeal Rules , Statutory Instrument No. 65 of 2016 INTRODUCTION [11 This appeal emanates from a ruling of the High Court (Lombe-Phiri , J . ) , dated 20 th June 2022 . By that ruling , the appellant ' s application to stay the execution of a J2 judgment of the Subordinate Court , which was dismissed for being incompetent . BACKGROUND [2J The respondent commenced proceedings against the appellant in the Subordinate Court , seeking vacant possession of plot number LUS/34282 Chalala , Lusaka . His claim was premised on his purchase of the property from the appellant . [3J He also sought damages for trespass and inconvenience . [4J In a judgment dated 10 th August 2018, the Subordinate Court determined the suit in favour of the respondent . csi Because he was late , the appellant filed an application in the Subordinate Court for leave to appeal that judgment out of time . The application was dismissed on 19 th November , 2019 . [6J He filed another application before the same court for leave to appeal out of time on 12 th May 2021 . That application was similarly dismissed , for lack of merit . c1i On 10 t h January 2020 , the appellant renewed his application for leave to appeal out of time in the High Court . He also filed an app l ication to stay the J3 judgment of the Subordinate Court , on 16 th November 2021 . cs i On 20 th June 2022 , the appellant ' s application to stay the execution of the Subordinate Court ' s judgment was dismissed . The High Court Judge took the view that in the absence of a notice of appeal , the application was incompetent . GROUND OF APPEAL [9J The sole ground of appeal , is that the learned Judge in the court below erred when she dismissed the matter on account that the _appellant had not filed the notice of appeal and grounds of appeal when the matter before her was a renewed application for leave to appeal out of time effectively implying that the notice of appeal could not be entered without leave . ARGUMENTS IN SUPPORT OF AND AGAINST THE APPEAL c1oi The gist of the arguments in support of the appeal is that the appellant could not proceed to file a notice of appeal and a memorandum of appeal , without first being granted leave to appeal out of time . He contends .... J4 that the High Court ' s failure to consider that aspect of the law , made the decision the court perverse. c111 The respondent ' s position is that the appeal is incompetent because it was filed more than 14 days after the decision of the High Court , which is the subject of the appeal , without obtaining the leave of this court . CONSIDERATION OF THE APPEAL AND DECISION OF THE COURT c121 When the Q.ppel lan t approached the High Court , he was seeking an extension of time within which to appeal against the decision of the Subordinate Court . c131 The High Court having dismissed that application , the appellant should have moved this court to extend that time , in line with Order XIII rule 3 of the Court of Appeal Rules. c141 That rule provides that the court may , for sufficient reason extend the time for making an application , including an application for leave to appeal ; bringing an appeal ; or taking any step in or in connection with an appeal. c1s1 In the case of Charles Mushi tu v. Swift Capital .> • JS Limited1 , we held that such applications , which are interlocutory applications , must be made before a single judge , as renewed applications and not launched as appeals . c161 This being the case , we find that this appeal is incompetent. The appellant should have renewed his application for the extension of time within which to apply for leave to appeal , by motion or summons before a single judge . c111 Consequently , we dismiss the appeal with cos t s , to be agreed and in default , to be taxed . C. F. R. Mchenga DEPUTY JUDGE PRESIDENT ............. Okt2ta1k ............. . K. Muzenga Y. Chembe COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE