Kateryna Valashenko v Alexandre Ivavovich Nikichaev (APPEAL No. 349/ 2024) [2025] ZMCA 129 (23 October 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 349/ 2024 HOLDEN AT LUSAKA (Civil Jurisdiction) -- \ 11~) t· 2 2 OC1 2025 L.... --1/ KATERYNA VALASHENKO ~J:>~~ , . i ;~ " " ' BETWEEN: ........,_ CIVIL nfu1sTR'l' .~ APPELLANT AND ~ ALEXANDRE IVANOVICH NIKICHAEV RESPONDENT Coram Mchenga DJP, Majula and Muzenga, JJA On 16th September 2025 and 23rd October 2025 For the Appellant: C. Andeleki, with S. Mweetwa, Kamwi Andeleki Legal For the Respondent: E. T. Changufu, Theotis Mutemi Legal Practitioners Practitioners JUDGMENT Mchenga DJP, delivered the judgment of the court Legislation referred to: 1. 2. The High Court Rules The Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia Cases referred to: 1. Sun Country Limited v. Kearney and Another, SCZ Appeal No. 7 of 2017 2. Intelligent Mobility Solutions Limited and Lamise Trading J2 Limited, CAZ Appeal No. 214 of 2022 3. D. E. Nkhuwa v. Lusaka Services Limited [1977] Z. R. 43 4. Germano Mutale Kaulung'ombe and Others v. Tazama Pipelines Limited, SCZ/8/307 /2013 5. Dawkins v. Prince Edward of Saxe Weimer, Earl Beauchamp [1876] L. R. Q. B. D. 503 6. Collett v. Van Zyl Brothers Limited [1966] Z. R. 65 7. Affordable Medicines Trust and Others v. Minister of Health and Another [2005] ZACC 3 8. Road Development Agency v. Agro Fuel Investm ents Limited, CAZ Appeal No. 114 of2019 Works referred to: 1. The Rules of the Supreme Court of England 1965, 1999 Edition 1.0 INTRODUCTION 1.1 This is an appeal against a ruling of the High Court (Chawatama, J.), declining to extend the time within which the appellant can file her affidavit in opposition to the respondent's motion raising a preliminary issue. 2.0 BACKGROUND 2.1 On 17th August 2016, the appellant took out a writ of summons against respondent. The respondent entered conditional appearance; he also filed a defence . 2.2 On 13th June 2019, the respondent filed a motion ('the motion') J3 seeking an order to dispose of the matter on a point of law. The hearing of the motion was scheduled for 17th January 2020, but it did not take place as scheduled. 2.3 Between 17th January 2020 and 6 th November 2023, the motion came up for hearing on numerous occasions, but was not heard because the appellant had not filed any response. 2.4 On 9 t h November 2023, the appellant filed an application for the further extension of time within which to file the affidavit in opposition to the motion. She contended that she had failed to file the affidavit within the period prescribed in an earlier order made on 31 st May 2023, because that order was not brought to her attention. 2.5 The appellant opposed the extension on the ground that no compelling reasons had been advanced in support of the application. 2.6 In her ruling, which is the subject of this appeal, the trial Judge declined to extend time. She reasoned that the appellant had been given sufficient time to file the affidavit in opposition to the motion, but had failed to do so. 3.0 GROUNDS OF APPEAL J4 3.1 The four grounds that have been advanced in support of this appeal, raise three issues. 3.2 The first issue, is that the trial Judge erred when she relied on a materially defective affidavit to dismiss the appellant's application. 3.3 The second issue raised, is that the trial Judge erred when she declined to exercise her discretion to extend time, an act that would have resulted in the ends of justice being met. 3.4 The last issue, is that the order condemning the appellant into paying costs, was inappropriate. 4.0 MATERIALLY DEFECTIVE AFFIDAVIT 4.1 Dr. Andeleki submitted that the respondent's affidavit in opposition to the appellant's application for the extension of time, within which to file her affidavit in opposition to the motion, should not have been relied on because it was defective. 4.2 He referred to the case of Sun Country Limited v. Kearney and Another1 , and submitted that the affidavit should not have been relied on because the defect affected the substance of the affidavit, and it was calculated to mislead. 4.3 In response to this argument, Ms. Changufu referred to Order JS 5 rules 13 and 14 of the High Court Rules and the cases of Sun Country Limited v. Kearney and Another1 and Intelligent Mobility Solutions Limited and Lamise Trading Limited2 , and submitted that it was permissible for the trial Judge to rely on the affidavit, because the defect or irregularity in it, was not fundamental and was therefore curable. 4.4 Ms. Changufu went on to argue that since the facts deposed to in the affidavit, relate to the documents filed into court and what transpired on the various days on which the court sat, counsel was comp etent to depose the affidavit. 4.5 The irregularity being complained of is the description of counsel who deposed the affidavit, as being "the defendant". 4.6 Having examined what was deposed to in that affidavit, we are satisfied that the claim by the respondent, that th e misdescription was by error and not with the intention to mislead, is probable. 4. 7 This is because the facts deposed to are limited to what transpired in court, facts on which counsel can competently depose to. 4.8 We are of the view that in the circumstances of this case, the J6 description of counsel as the 'defendant' does not amount to a material defect and we dismiss the objection to the affidavit on that ground. 5.0 FAILURE TO EXERCISE DISCRETION 5.1 Dr. Andeleki referred to Order 2 rule 2 of the High Court Rules and Section 37 of the Interpretation and General Provisions Act, and submitted that the courts have the power to extend the period for making any application, even in a case where there is a prescribed period for making that application, and that period, has expired. 5.2 He then referred to the case of D. E. Nkhuwa v. Lusaka Services Limited3 and submitted that there was sufficient material before the trial Judge, for her to exercise her discretion and grant the appellant the extension she sought. He argued that in the absence of any unreasonable delay or mala fides, the court should have allowed the extension, and only condemned the appellant in costs. 5.3 In response to this argument, Ms. Changufu submitted that the appellant's general response to the motion has been characterised by dilatory conduct. 5.4 She referred to the cases of Germano Mutale Kaulung'ombe J7 and Others v. Tazama Pipelines Limited4 and Dawkins v. Prince Edward of Saxe Weimer, Earl Beauchamp5 , and submitted that the trial Judge rightly declined to grant the extension because it was essential that rules prescribing timelines for filing documents, are followed. 5.5 This motion first came up for hearing on 17t h January 2020. On that day, counsel representing the appellant informed the trial Judge that they had only been served with the affidavit in support of the motion and not the motion itself. The trial Judge adjourned the matter and advised both parties to file all the relevant documents before 30th February 2020. 5.6 The respondent did not file his skeleton arguments until 9 th August 2021. As for the appellant, she did not file any affidavit in opposition to the motion. 5. 7 On 15th July 2022, the trial Judge convened a status conference. The appellant was directed to file her affidavit in opposition to the motion by the 2 nd of July 2022, to allow the court render its ruling by 16th August 2022. She did not. 5.8 However, on 23rd April 2023, she applied for the extension of the JB period within which she could file her affidavit in opposition to the motion. The request was granted, in an order dated 31 s t May 2023. 5.9 On 23r d October 2023, the trial Judge convened a scheduling conference with was not attended by either the appellant or counsel representing her. The trial Judge decided to render her ruling on the basis of the documents before her. 5.10 However, on 9 th November 2023, the appellant filed an application of further extension of time contending that the 31 st May 2023 order, was not brought to her attention. 5.11 Having examined what transpired between 17th January 2020 and 6 th November 2023, we are not persuaded by the argument that the trial Judge did not properly exercise her discretion when she declined to grant the appellant a further adjournment. If anything, the trial Judge was too accommodative to the appellant's dilatory conduct. 5.12 It has resulted in more than 3 years lapsing, without the motion being heard. 5.13 Consequently, we find no merits in the argument that the trial J9 Judge failed to properly exercise her discretion when she declined to extend time within which the appellant can file her affidavit in opposition to the motion. 6.0 INAPPROPRIATE AWARD OF COSTS 6.1 Dr. Andeleki referred to Order 40 rule 6 of the High Court rules and the cases of Collett v. Van Zyl Brothers Limited6 and Affordable Medicines Trust and Others v. Minister of Health and Another7 , and submitted that since the appellant had a justification for failing to file her affidavit in opposition to the motion, there was no dilatory conduct on her part, and the court should not have awarded costs against her. 6.2 Ms. Changufu's response to this submission, was anchored on the case of Road Development Agency v. Agro Fuel Investments Limited8 and Order 62 rule 3(3) of the RSC. She submitted that considering the history of the case, the court was entitled to dismiss the application on the ground that the application was vexatious and intended to delay court proceedings. 6.3 She argued that in the circumstances, condemning the appellant into paying costs was in order. 6.4 We agree with Ms. Changufu, that the trial Judge cannot be JlO faulted for condemning the appellant into paying costs. This is a motion that has dragged on for years, largely on account of the appellant's dilatory conduct. The motion has been pending before the court for years and there were no convincing reasons for making the application for a further extension. 7.0 VERDICT 7.1 Having dismissed all the arguments in support of the appeal, this appeal fails and we dismiss it for lack of merit. 7.2 We award the respondent costs, to be agreed and in default, to be taxed. C. F. R. Mchen DEPUTY JUDGE PRESIDENT B. M. ajula 2 '! OCT 2025 . . .7. .,._ ................... . zenga K. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE