Naik V Burgess and Ors (Appeal 45 of 2020) 2021 ZMCA 177 (20 October 2021)
Naik V Burgess and Ors (Appeal 45 of 2020) 2021 ZMCA 177 (20 October 2021)
Naik V Burgess and Ors (Appeal 45 of 2020) 2021 ZMCA 177 (20 October 2021)
45/2020
HOLDEN AT LUSAKA
(Civil Jurisdiction)
BETWEEN:
AND
For the Appellants: Mr. M. Lungu, Ms. M. Mwape and Ms. M. Mulenga
all of Lungu Simwanza and Company
JUDGMENT
1
2. JCN Holdings Limited v. Development Bank of Zambia (SCZ Judgment No.
22/2013)
3. Esan v. Attorney General (App No. 96/2016)
11. Owner of Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Limited (1989) KLR
1
12. Access Bank Zambia Limited v. Group Five/Zcon Business Park Joint
Venture (SCZ/8/52/2014)
Other Works
1.0. INTRODUCTION
Appellant.
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2.0 BACKGROUND
2.1 The appeal in the main matter arises from the decision of the
4.2 After hearing both parties, the learned Hon. Judge rendered
Registrar and set the Ruling aside. The learned Judge agreed
with the Respondent herein that the case was indeed statute
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barred for offending the Limitation Act 1939. As already
APPEAL
2019. The Ex-parte Order so granted paved the way for the
made on 26th November, 2019 and yet the Ruling that the
party’s case.
8.3 Counsel reiterated that the application for leave to appeal the
later than 11th October, 2019, but was only filed on 29th
power to grant leave when the application for leave was made
leave granted by the High Court, and since in this case they
have shown that the order for leave is irregular, the Court is
costs.
pleadings before this Court to set aside the said order for the
that it was not for this court to go outside the pleadings and
set aside the said order without the actual hearing of the
the actual application to set aside the order that granted leave
both law and equity concurrently, and where law and equity
are in conflict, equity shall prevail. That the Court below was
HCR.
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8.9 It was argued that the purported error is not fatal, despite
the Court has leverage to grant any order to ensure that there
HCR which empowers the court to make any Order for doing
is merely regulatory and thus not fatal but curable. That the
Supreme Law of the land and any other law inconsistent w’ith
technicalities.
below.
jii
9.0 ARGUMENTS IN REPLY
the ex-parte order, but the appeal itself which had been
that the mere fact that the irregular order has not been set
aside does not mean that this Court now has jurisdiction to
9.3 It was contended that since the ex-parte order was made
That this Court could only hear the appeal on its merits
9.4 Moving on, it was submitted that since the Order is void
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jurisdictional issue is raised, the Court ought to deal
with the issue first before dealing with the appeal on its
merits.
That the right to be heard does not arise when the Court
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9.9 On whether Order 3 rule 2 HCR was applicable, it was
it has none.
9.11 On the issue of whether the error was fatal and whether
misconceived.
held that:-
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9.13 As regards the Appellant’s reliance on Article 118(2) of
the Court find that the appeal is not properly before it,
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merit and it should be dismissed for want of jurisdiction
the fourteen (14) days period. That in casu, the Order for
leave to appeal had been filed after fourteen (14) days and
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10-2 The major contention raised in the Preliminary Objection
states that:-
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10.4 Mr. Mwamba, learned counsel for the Respondents
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Court, that Court has no jurisdiction to make any orders
that, that case was almost on all fours with this matter,
obtained after fourteen (14) days. That this was also the
case in casu and therefore it did not matter that the order
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irregularity and reliance was placed on the case of Esan
outside and set the order aside, but should hear the
10.9 It was further argued that the relief sought cannot come
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administration of justice. That therefore in granting the
the inconsistency.
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is patent from the record that the Appellants ought to
they state that the Appellant has missed the point. The
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which they could lawfully have done so had long expired,
that: -
10.15 It was in the same case that the Supreme Court cited
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“Jurisdiction is everything (and that) without it,
a court has no power to make one more step”.
proper proceedings.
said:-
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foundation of a court’s adjudicative function
•••
>»
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page 4 of their submissions, that the Court granted them
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necessary jurisdiction to hear the appeal. The
. CHASHI
COURT OF APPEAL JUDGE
D. L. Y SlCHINGAj, SC A. M. BANDA-BOBO
COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE
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