Mapepe Bible College Registered Trustees v Miyanda Fearness Siamoongwa and Ors (2021/HPC/0535) (8 May 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2021/HPC/0535 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA c7Sui7ioFiA.--··~ ,- -~-. (Commercial Division) HIGH COM .IU/)l(t4~,v . IB1A / .. ·•s10N f Od MAY 20'15 . ~r'h / BETWEEN: Re - J~t..J/ MAPEPE BIBLE coLLEGE REhi~ t-~ n. TRUSTEiES / PLAINTIFF _. •. s AND MIYANDA FEARNESS SIAMOONGWA 1ST DEFENDANT LOUD MIZINGA 2ND DEFENDANT THE ATTORNEY GENERAL 3RD DEFENDANT GRAND GOLDEN INVESTMENT LIMITED 4™ DEFENDANY Before Lady Justice B. G. Shonga For the Plaintiff Mr. M. Nkunika Messrs. Simeza Sangwa For the 1st & 2nd Defendants: Mr. N. Mukuka, Messrs. Bunting & Associates ~ For the 3rd Defendant: Absent For the 4th Defendant: Ms. N. Adam, Messrs. D. Findlay RULING Cases Referred to: 1. Sussex Peerage Case (1844) 11 Cl & F 85. 2. Katuka and Others v Attorney General, Ngosa Simbyakula and 63 Others (2016) Vol. 2 226 Legislation and Other Material Referred To: 1. High Court Rules (HCR), High Court Act, Chapter 27 of the Laws of Zambia Page R2 of R4 1.0 INTRODUCTION AND BACKGROUND 1.1 This matter came before me on an application by the 1st and 2nd defendants to dismiss the plaintiffs case for want of prosecution. 1.2 The plaintiff commenced this action in 2021, and since then, there have been various determined interlocutory applications, court directions and a recusal by the then presiding judge. 1.3 Ultimately in 2024, the matter was reallocated to the undersigned as presiding judge. At the status conference convened on 11th March 2024 I directed the parties to work together and file a consent order, relating to agreed timeframes for filing amended pleadings, within 60 days. I warned that if there was no activity within the next 60 days, the court would proceed to chart the way forward, which may include a dismissal for want of prosecution. 1.4 On 10th June 2024 the defendants filed a summons for an order to dismiss the matter for want of prosecution. 2.0 THE APPLICATION 2 .1 The 1st and 2nd defendants seek to dismiss the plaint iffs case pursuant to Order LIII, Rule 10 (10) of the High Court Rules (HCRJ, High Court Act, Chapter 27 of the Laws of Zambia. That rules reads as follows: "(10) A party to an action may, if sixty days elapse without any progress after the action is filed, apply to a Judge to dismiss the action." 2.2 They argue that the plaintiff has failed to comply with court directions and has delayed in prosecuting the matter. The defendants contend that the plaintiffs inaction has caused prejudice and that the matter should be dismissed for want of prosecution. 3.0 THE OPPOSITION 3.1 The plaintiff opposes the application, arguing that 0. Lill, R. 10(1 OJ does not apply to this matter. Page R3 of R4 3.2 The plaintiff contends that the court directed the parties to work together and file a consent order within 60 days, which has not been possible due to the defendants' lack of cooperation. The plaintiff also argues that it has taken steps to meet with the defendants and prosecute the matter. 4.0 DETERMINATION 4.1 Upon careful examination of 0. LIII, R. 10(10) HCR and the circumstances of this case, it appears that the defendants' reliance on this provision is misplaced. The rule stipulates that a party may apply to dismiss an action if 60 days elapse without any progress after the action is filed. 4.2 Given that this action was commenced in 2021 and has since seen several interlocutory applications disposed of, it cannot be credibly argued that there has been no progress after the action was filed. The plain meaning of the rule suggests that it is intended to apply to situations where there is a complete lack of activity or progress in the action from its inception. 4.3 In this case, the presence of significant activity, including the disposition of several interlocutory applications, indicates that there has indeed been progress in the action. Therefore, the precondition for invoking Order 53 Rule 10(10) HCR has not been met, and the application to dismiss cannot stand on this rule. 4.4 In interpreting the rules of court, I am guided by the principles set out in Sussex Peerage Case1, which emphasizes the importance of giving effect to the plain meaning of the rules. Furthermore, I note the holding in Katuka and Others v Attorney General, Ngosa Simbyakula and 63 Others2, which emphasizes the importance of considering the literal or ordinary meaning of the words in interpreting statutory provisions. 1 (1844) 11 Cl & F 85 2 (2016) Vol. 2 226 Page R4 of R4 4.5 Even ifl take my direction of 11th March 2024 as the trigger point for the 60 days, I find that the plaintiff took steps to initiate the process of filing a consent order to progress its prosecution by inviting the defendants to a meeting on 3rd June 2024, as evidenced by exhibit "MNl". The plaintiffs letter to the defendants on 29th May 2024, inviting them to a meeting, demonstrates a desire to genuinely attempt to comply with my direction and move the matter forward. 4.6 Given the plaintiffs efforts to move the matter forward, I am not satisfied that the plaintiffs delay is inordinate and inexcusable. Moreover, I note that the defendants have not shown that they attempted to work with the plaintiff to file a consent order within the 60-day period. 4.7 In light of the above circumstances, I decline to dismiss the matter for want of prosecution and instead dismiss the defendants' application, with costs. 4.8 Costs are awarded in favour of the plaintiff, to be taxed in default of agreement Dated this 8th day of May 2025. B.G. SHON JUDGE \