Lewis Mosho v Abel Mbozi and Ors (CAZ/08/335/2023) [2023] ZMCA 384 (18 July 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) CAZI08133512023 - BETWI;:EN: LEWIS MOSHO AND ABELMBOZI ROYHABAALU ANDREW CHIWENDA MWENDALUBI MWEENE BONAVENTURE BWALYA ZAMBIA REVENUE AUHTORITY POST NEWSPAPERS LIMITED (in liquidation) FRED M'MEMBE 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent 7th Respondent Interested Party Coram: Hon. Lady Justice N. A Sharpe-Phiri in Chambers on 18 July 2023 For the Applicant: For the Respondents: NIA For the Interested Party: NIA Mr. M. Mainga of Messrs Lewis Nathan Advocates RULING Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 o/2016 2. The High Court Rules, Chapter 27 of the Laws of Zambia Cases referred to: 1. Status Mineral Exploration v Ocean Ore Limited and Maggie Musonda (2013) Vol. 1 ZR. 240 2. Christian Diedricks V Konkola Copper Mines PLC (2011) Vol. 1 ZR. 506 Rl This is a ruling on an ex-parte application brought on 5 July 2023 for an order for leave to appeal against the ruling of Shonga, J of 2 May 2023. The application was supported by an affidavit deposed to by the applicant, Lewis Chisanga Mosho. The affidavit evidence discloses that the Court below dismissed the main action in which the applicant was a third party on 10 May 2020. Following the Ruling dismissing the action, the applicant took out an application for special leave to file summons for an order for review of the order dismissing action made by the Court on 10 May 2020. This application was made on 3 June 2022 pursuant to Order XXXIX Rule 2 of the High Court Rules. On 2 May 2023, the Court below rendered a Ruling on the applicant's application for special leave to file summons for an order of review. The Court in that Ruling declined to grant the Applicant's application in the following words as contained in paragraph 7 .15 of the Ruling; "I decline to grant the third party special leave to bring an application to review outside the required period of 14 days from date of the order of dismissal". This position prompted the Applicant to bring another application to appeal the High Court Ruling of 2 May 2023. The trial Court heard the application on 20 June 2023 and rendered a fmiher Ruling declining the applicant leave to appeal the Ruling. The Applicant has now brought the application for an order for leave to appeal the Ruling of 2 May 2023 by way of summons filed into this Court on 5 July 2023 before me pursuant to Order 10 Rule 4 of the Court of Appeal Rules. R2 The intended grounds of appeal are as follows: (i) The Court erred in law and in fact when it held that the third party has not offered any reason why special leave should be considered by the Court below. (ii) The Court erred in law and in fact when it declined to grant the third party special leave to bring an application to review the dismissal order outside the required 14 days of bringing an application for review. The application was set down for hearing ex-parte on 17th July 2023. On the said date, the applicant's counsel was in attendance. He relied on the affidavit in support of the application and the heads of arguments and list of authorities and urged this Court to grant the application. I have carefully considered the affidavit evidence and the arguments of the Applicant. The application is brought pursuant to Order X Rule 4 of the Court of Appeal Rules. Subrule 5 of the said Rule 4 of Order X provides that: 'Where leave to appeal is refused, an application for leave to appeal to the Court shall be made to a single Judge.' Section 12(2) of the Court of Appeal Act also provides that: 'A single Judge of the Court may grant leave to appeal where an appellant is denied leave to appeal by the High Court or quasi-judicial body.' The foregoing provides jurisdiction to this Court to entertain an application for leave to appeal, where the lower Court has declined to grant the same. R3 It is undisputed that the Judge of the lower Court refused to grant the applicant leave to appeal to this Court. Hence, the application is properly before this Court. One of the chief considerations for leave to appeal a decision of the High Court to be granted is that the intended grounds of appeal must primafacie demonstrate some realistic chance of success on appeal to this Court so that only matters that merit to come on appeal are allowed to proceed as such. This position was affirmed by Mutuna J. then sitting as High Court Judge in the Commercial List in his holding in the case of Status Mineral Exploration v Ocean Ore Limited and Maggie Musonda 1 • A careful perusal of the record before me reveals that the Applicant's application giving rise to the Ruling of 2 May 2023 was substantively argued as an application to review the decision dismissing the matter commenced by the afore mentioned Petitioners in the lower Court yet it was styled as an application for leave to apply for review out of time. The decision dismissing the main action was made by the High Court on 10 May 2020. That the Applicant as third party to the proceedings then took out the said purported application for review of the order dismissing the substantive action in the lower Court on 3 June 2022 pursuant to Order XXXIX Rule 2 of the High Court Rules. This represented a period of over 2 years from the date of the order of dismissal. Order XXXIX Rule 2 of the High Court Rules provides that: "Any application for review of any judgment or decision must be made not later than fourteen days after such judgment or decision. After the expiration of fourteen days, an application for review shall not be admitted, except by special leave of the Judge on such terms as seem just". R4 The above-mentioned prov1s1on reqmres that once a decision, as the one dismissing the substantive matter, is made, an application for review of that decision must be made within 14 days from date of that decision. If a party wishes to make the same application after the lapse of the 14 days period provided in the rules, such party must first obtain leave of Court to bring such application for review. In casu, it is evidently clear that the Applicant sought from the Court almost 2 years after order of dismissal, special leave to review order of dismissal out of tiine but his arguments thereunder were misdirected on the substantive review of the order for dismissal before leave could be obtained. The lower Court nonetheless considered the reasons why the applicant had brought his application so late in the hour and determined as follows in paragraph 7 .12 of its Ruling of 2 May 2023: "Stra11gely, though, he does 11ot disclose whe11 he was made aware of the said order of dismissal. This omissio11, i11 my view, is fatal because it makes it impossible for me to determine whether he was made aware before or after the period fixed for launching an application for review. In my estimation, the third party has not offered a11y reaso11 why special leave should be considered by this Court". Having considered the intended grounds of appeal and the application giving rise to the ruling intended to be appealed, I see no realistic chances of the appeal succeeding if appeal is allowed to be lodged before this Court as the intended grounds of appeal appears to be misplaced in my view as the application giving rise to the Ruling in contention was augmented by misconceived arguments as shown above. RS . ' The High Court in the case of Christian Diedricks V Kon kola Copper Mines PLC2 held that "where the application for review is not made within the 14 days period allowed, special leave is required under Order 39, Rule 2,for one to pursue the application for review". In any case, the substantive reason the Applicant, who was merely a third party to the substantive action, is seeking a review of the order of dismissal would appear to be that the main action be restored for prosecution. This dims the prospects of success even further as the substantive litigants who are the 5 afore stated petitioners no longer appear to be championing prosecution of their original action in the lower Court. For the aforesaid reasons, the application for leave to appeal before me is dismissed for lack of merit and for being an abuse of process. I make no order as to costs. Dated at Lusaka this 18th July 2023. i iharpe-Phi.,j ~~ ~~ COURT OF APPEAL JUDGE R6