George Muyunda Munalula v Alexander Kasongo (APP/217/2022) (17 April 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APP/217/2022 HOLDEN AT LUSAKA (Civil Jurisdiction) 1 7 APR r ·;r ,.,,, -. - I BETWEEN: GEORGE MUYUNDA MUNALULA APPELLANT AND ALEXANDER KASONGO RESPONDENT Coram: Mchenga DJP, Muzenga and Chembe, JJA 24th March 2024 and 17th 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 This appeal emanates from a ruling of the High Court [11 (Lombe-Phiri, J . ) , dated 20th 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 The respondent commenced proceedings against the [2J 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 . He also sought damages for trespass and inconvenience . [3J In a judgment dated 10th August 2018, the Subordinate [4J Court determined the suit in favour of the respondent . Because he was late, the appellant filed an csi application in the Subordinate Court for leave to appeal that judgment out of time . The application was dismissed on 19th November, 2019 . He filed another application before the same court for [6J leave to appeal out of time on 12th May 2021 . That application was similarly dismissed, for lack of merit . On 10th January 2020, the appellant renewed his c1i application for leave to appeal out of time in the High Court . He also filed an appl ication to stay the J3 judgment of the Subordinate Court, on 16th November 2021 . On 20th June 2022, the appellant' s application to stay csi 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 The sole ground of appeal, is that the learned Judge [9J 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 The gist of the arguments in support of the appeal c1oi 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. The respondent' s position is that the appeal is c111 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 When the Q.ppel lan t approached the High Court, he was c121 seeking an extension of time within which to appeal against the decision of the Subordinate Court . The High Court having dismissed that application, c131 the appellant should have moved this court to extend that time, in line with Order XIII rule 3 of the Court of Appeal Rules. That rule provides that the court may, for sufficient c141 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. In the case of Charles Mushi tu v. Swift Capital c1s1 .> • 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 . This being the case, we find that this appeal is c161 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. Consequently, we dismiss the appeal with cost s , to c111 be agreed and in default, to be taxed. C.F.R. Mchenga DEPUTY JUDGE PRESIDENT .............O kt2ta1k .............. K. Muzenga Y. Chembe COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE