Mashebe Mbinga v Afrox Zambia Limited (APPLICATION NO. 05/2023) [2023] ZMCA 405 (8 December 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPLICATION NO. 05/2023 HOLDEN AT LUSAKA (Civil Juri sdiction) BE1WEEN: MASHEBE MBINGA AND AFROX ZAMBIA LIMITED RESPONDENT CORAM: Chashi, Majula and Muzenga JJA On 31st May, 22nd June and 8t h December 2023 For the Applicant: I n Person For the Respondent: Mr. K. Wishimanga, AMW and Compa ny RULING Muzenga, JA, delivered the Ruling of the Court. Cases referred to: 1. Germano Chilufya Kaulung'ombe & Others v. TAZAMA Pipelines Limited - SCZ/8/307 /2013 2. Investrust Bank PLC v. Build it Hardware & Yousuff Essa - SCZ/8/355/2012 3. Rosemary Nyangu v. Pamodzi Hotel PLC - SCZ/8/08/2021 4. Zambia Telecommunications Company Limited v. Muyawa Liuwa - SCZ Judgment No. 16 of 2002 Legislation referred to : 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016. 2. The Court of Appeal Act, No. 7 of 2016. R2 1.0 INTRODUCTION 1.1 This is a ruling on the applicant's application to reverse or vary the decision of a single Judge of this court. 1.2 The parties filed affidavits, skeleton arguments, for and against the applications. 2.0 BACKGROUND 2.1 The background to this application is that being discontented with the judgment of the lower court dated 10th August 2017, the applicant filed an appeal before this court on 7th September 2017. 2.2 Nothing was done in respect of the appeal until 6th September 2022, when the applicant lodged an application for leave to file a record of appeal and heads of argument out of time, before a single Judge of this court. 2.3 A single Judge of this court declined the application mainly on account of inordinate delay. Disenchanted with the decision of a single Judge of this court, the applicant lodged the within application, culminating into this Ruling. 3.0 APPLICANTS' ARGUMENTS 3.1 The applicant attributed the delay in filing the record to her then advocates who failed to prepare and file the record into court. She argued that the learned single Judge erred in not considering the reasons given for the delay as they were truthful and reliable. R3 3.2 She thus prayed that leave be granted. 4.0 RESPONDENT'S ARGUMENTS 4.1 Counsel for the respondent argued that orders for extension of time should not be granted as a routine, valid reasons for the delay must be proffered and in the present case, no valid reasons have been advanced by the applicant. We were referred to a number of cases, including the cases of Germano Chilufya Kaulung'ombe & Others v. TAZAMA Pipelines Limited 1 and Investrust Bank PLC v. Build it Hardware & Yousuff Essa. 2 Therefore counsel prayed that the application be dismissed with costs. 5.0 AT THE HEARING 5.1 At the hearing of the application, the parties informed the court that they would rely on their various fi led documents and augmented briefly. 6.0 DECISION OF THE COURT 6.1 We have meticulously considered the applicant's Notice of Motion, affidavits, skeleton argument for and against the motion. We shall first consider the manner in which the full court was moved. 6.2 The law as we understand it is that Section 9 (b) of the Court of Appeal Act No. 7 of 2016 (CARs) in providing for powers of a single Judge of this court states that: R4 "A single Judge of the Court may exercise a power vested in the Court not involving the decision of an appeal, except that in civil matters, an order, direction or decision made or given in pursuance of the powers conferred by this section may be varied, discharged or reversed by the Court." 6.3 The powers gra nted under Section 9 are f urther embodied in Order 10 rule 2(8) of t he CARs. The said Order provides as follows : "A person who is aggrieved by a decision of a single Judge and who intends to have the decision varied, discharged or reversed by the court under section 9(b) of the Act shall before the date of hearing of the application by the Court, file three extra copies of the proceedings, including copies of the affidavit filed by the other party prior to the single Judge's decision, for the use of the court." 6.4 From t he foregoing, it is t rite that a motion comes from a si ngle Judge to the f ull court by a way of renewal, whenever t he applicat ion is declined, and not in a form of an appeal. We are guided by the decision of the Supreme Court of Zambia in the case of Rosemary Nyangu v. Pamodzi PLC3 , where it was held that: "It is abundantly clear from the provisions quoted in paragraphs 2.2 and 2.3 that an application or motion comes from a single Judge to the full court by way of renewal and ought to be presented as such. It is not an appeal requiring new grounds premised on the RS decision of the single Judge for consideration by the full court." 6.5 In the case of Zambia Telecommunications Company Limited v. Muyawa Liuwa4, the Supreme Court stated as follows: "In passing and at the outset, we want to state here for the benefit of litigants and advocates, who appear before Judges of this court at Chambers, that when aggrieved, or dissatisfied by any decision of a single Judge of this court, they come to a full court by way of the application or motion and not by way of an appeal. This is so because in terms of Section 4 of the Supreme Court Act, Cap. 25 of the Laws of Zambia, a single Judge of the court may exercise any powers not involving the decisions of an appeal or a final decision in the exercise of his original jurisdiction. Thus, in criminal matters, if a single Judge refuses an application, the person aggrieved by the refusal is entitled to renew that same application to the full court and in civil matters, an order, direction or decision made by a single Judge may be varied, discharged or reversed by the full court. It is precisely for this reason that a single Judge may sit on the renewed application which was dealt with by himself or herself because the renewed application is not an appeal. It is also for that very reason that we refused the applicant's objection to a member of this panel from sitting on this renewed application." 6.6 I n escalating t he matter to the fu ll court as a renewed application, the applica nt couched his grounds as though it was an appeal before R6 us. The applicant focused on faulting the decision of the single Judge as presented in the grounds reproduced below: 1. The learned single Judge erred to dismiss my application on grounds that there was no reasons given for the delays in filing the record of appeal; 2. That the applicant here is in person and the record is voluminous to prepare and the efforts were done by the applicant to assist the advocate on record to prepare the same and file it; 3. The court erred in dismissing my application on the grounds that the appeal has no merit; 4. That the court erred by delving into the main appeal as my application was for leave to file the record of appeal out of time and gave reasons for delay which was caused by counsel, and not for the filing of notice of appeal, and disregarding the reasons given for the cause of the delay in filing the record of appeal; 5. That costs of this motion be in the cause. 6.7 As was observed by the Supreme Court in the case of Rosemary Nyangu v. Pamodzi PLC supra, the grounds as set out in paragraph 6.6 above, in our view raise the issue of whether or not the applicant's application is competently before us. 6.8 We are of the view that as the motion comes to the full court by way of renewal, it must speak to the same grounds that were before the single Judge and not premised on challenging the ruling of the R7 single Judge of this court. The applicant's grounds and arguments before us should have focused on the reasons we should grant the application for leave to file the record of appeal out of time, as couched in the motion. 6. 9 In the circumstances, we accordingly dismiss the applicant's notice of motion because the manner in which it has been presented before us makes it incompetent for us to deal with it. 6.10 Because of the position we have taken, we are precluded from considering the merits or otherwise of the within motion . 7 .0 CONCLUSION 7.1 Having found the motion to be incompetently before us due to the manner in which it was presented, we dismiss it. 7 .2 Given the foregoing, it will be irrelevant to consider the merits or demerits of the applicant's Notice of Motion. 7.3 On the issue of costs, we find it appropri hat each party should bear its own costs. J. C HI COURT OF APPEAL JUDGE - B. M. AJULA COURT OF APPEAL JUDGE ··········~ ·~ 2iNG. A ············ COURT OF APPEAL JUDGE