Kapalu and Ors v Maamba Collieries and Anor (Appeal 167 of 2015) [2020] ZMSC 156 (6 October 2020)

IN THE SUPREME COURT OE ZAMBIA * S^RPEAL NO. 167/2015 HOLDEN AT LUSAKA * (Civil Jurisdiction) BETWEEN: JUDICIARY ‘ *4 £ '■ COURT --A.- KENNEDY KAYOMBO KAPALU AND 254 OTHERS APPELLANTS AND MAAMBA COLLIERIES LIMITED ATTORNEY GENERAL 1st RESPONDENT 2nd RESPONDENT Coram: Musonda, DCJ Kaoma and Kajimanga, JJS on 6th October, 2020 For the Appellants: No Appearance For the 1st Respondent: Mr. G. Cornhill of Wilson & Cornhill For the 2nd Respondent: No Appearance JUDGMENT Kaoma, JS, delivered the Judgment of the Court. Cases referred to: 1. Lenard Kanyanda v Ital Terr azo Limited (In Receivership) - Appeal No. 125 of Legislation referred to: 1. Supreme Court Rules, Cap 25 of the Laws of Zambia, Rule 48(1) and (4) 2. The Supreme Court (Amendment) Rules, 2012 (Statutory Instrument No. 26 of 2012) 1. Introduction 1.1 On 17th May, 2016, a single Judge of this Court dismissed the appellants’ appeal for abuse of process. On 25th September, 2019, the appellants filed this Motion intending to set aside the order dismissing the appeal. The view we took when the motion was called for hearing was that it was improperly and incompetently before us. 2. Our Reasons J2 2.1 As we said in Lenard Kanyanda v Ital Terrazo Limited (In Receivership),1, in terms of Rule 48(4) of the Supreme Court Rules, Cap 25, the motion ought to have been filed within fourteen days of the decision of the single judge dismissing the appeal. We draw the attention of the appellants to that case where we have explained that because of the use of the phrase shall in like manner* in Rule 48(4), any application made under that sub-rule, challenging the decision of a single Judge should be made within fourteen days as provided in Rule 48(1). 3. Conclusion 3.1 It was for this reason that we held that the motion filed over three years and four months from 17th May, 2016 when the single Judge dismissed the appeal for abuse of process was improperly and incompetently before us as it was filed outside the stipulated period, without leave of court and we dismissed it, with costs. Besides, the motion would have failed on the merits. \ M. MUSONDA DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE SUPREME COURT JUDGE