IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO.

251/2020
HOLDEN AT LUSAKA
(Civil Jurisdiction)

BETWEEN:

EUNICE LIKANDO APPELLANT

AND

BRIGHT SIMUMBWE RESPONDENT

CORAM: CHA SHI, CHISHIMBA AND NGULUBE, JJA.

On 21st September, 2021, 6th September, 2021 and
16th December, 2021.

For the Appellant: Ms. C. Jere, National Legal and Clinic for Women

For the Respondent: In person

NGULUBE, JA delivered the Judgment of the Court.

Cases referred to:

1. Watenvells Limited vs Jackson (1984) Z.R.98
2. Mwambazi vs Morrester Farms Limited (1977) Z.R. 108
3. D. E. Nkhuwa vs Lusaka Tyre Services Limited (1977) Z.R.43
4. Blair Freight International Limited vs Credit Africa Bank Limited, SCZ Appeal
Number 2009/1997
5. R. B. Policies at Lloyds vs Butler (1950) 1 KB 76
6. Development Bank of Zambia and Mary Ncube (Receiver) vs Christopher
Mwansa and 63 Others, SCZ/ 08/103/ 08
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7. Ruth Kumbi vs Robinson Caleb Zulu, S. C.Z Judgment Number 19 of2009

8. Ituna Partners vs Zambia Open University Limited' Appeal Number 117 of2008

Legislation and other works referred to:

1. The Constitution of Zambia, Act Number 1 of 2016

2. Black’s Law Dictionary
3. The High Court Rules, Chapter 27 of the Laws of Zambia

INTRODUCTION

1. This appeal is against a ruling of the High Court delivered by the

Hon. Lady Justice E. P. Mwikisa on 2nd November, 2019, in which

the court found that the learned Registrar was on firm ground

when she dismissed the matter as she was of the view that time

within which the appellant could lodge an appeal had elapsed.

BACKGROUND

2. The background to this appeal is that on 28th June, 2017, the High

Court pronounced a decree nisi in favour of the respondent and

referred the question of property adjustment to the Registrar on

formal application.

3. The applicant applied for property settlement and maintenance

before the Registrar but the matter was struck off the active cause
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list on 28th November, 2017 with liberty to restore within thirty

days. The appellant did not apply to restore the matter and it was

dismissed for want of prosecution.

4. The appellant later learnt that the matter was dismissed and

retained the National Legal Aid Clinic for Women to represent her

and counsel seized with conduct of the matter made an

application to restore the matter to the active cause list on 8th May,

2018. The appellant sought leave to appeal the decision of the

Registrar and have the matter that was dismissed for want of

prosecution restored to the active cause list as she was not aware

that the matter was scheduled for hearing before the learned

Registrar. Counsel submitted that the appellant desired to be

heard on an application for property settlement and maintenance

of the children of the family.

DECISION OF THE HIGH COURT

5. When the matter came up for hearing in the High Court, Lady

Justice Mwikisa granted the appellant leave to appeal out of time,

on 24th April, 2019. However, the Court later ruled that the matter

stood dismissed as the learned Registrar had dismissed it on

account of the lapse of time within which to appeal.

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THE APPEAL

6. Dissatisfied with the decision of the lower court, the appellant

lodged an appeal to this court, advancing nine grounds of appeal

couched as follow -

a) That the trial Judge erred in law and fact when she held
that the matter stands dismissed,
b) That the trial Judge erred in law and fact when she
failed to consider the fact that applications for property
settlement and maintenance of the children after
dissolution of marriage are only heard and determined
by the Learned Deputy Registrar.
c) That the trial Judge erred in law and fact when she
failed to consider that the matter having been dismissed
will cause great injustice on the appellant as she will not
benefit from any property that was acquired during the
subsistence of the marriage herein.
d) That the trial Judge erred in law and fact when she
failed to consider that the matter having been dismissed
will cause great injustice on the children of the family
who are still very young as the application for
maintenance of the children was never heard and
determined as the matter stands dismissed.
e) That the trial Judge erred in law and fact when she
failed to consider the interest of the children of the
family as their only recourse to maintenance is if the
application for maintenance is heard and determined.
f) That the trial Judge erred in law and fact when she
failed to take into account that if the application for
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maintenance of the children is not heard and

determined, the children of the family will continue
suffering as the respondent does not support them
financially nor pay their school fees, therefore they may
end up dropping out of school and start begging on the
streets.
g) That the trial Judge erred in law and fact when she
failed to take into account that at the time the matter
was dismissed by the learned Deputy Registrar, the
appellant had no legal representation and had no legal
knowledge to understand the legal procedures of what
ought to have been done when the matter was struck out
and eventually dismissed.
h) That the trial Judge erred in law and fact when she
failed to take into account that the appellant’s case
should have been heard and determined on the merit.
i) That the trial Judge erred in law and fact when she
failed to take into account the principles of equity and
Justice and Just give regard to procedural technicalities
and that has caused great injustice on the appellant and
especially the children.

THE APPELLANT’S CONTENTIONS

7. The appellant argued the nine grounds of appeal together. Our

attention was drawn to the provisions of Article 118 of the

Constitution of Zambia, as amended, which prescribes the exercise

of judicial authority by Zambian system of courts in the following

terms-
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(2) In exercising judicial authority, the courts shall be guided by

the following principles-

(e) Justice shall be administered without undue regard to

procedural technicalities.

8. The court’s attention was drawn to the cases of Waterwells Limited

vs Jackson1 and Mwambazi vs Morrester Farms Limited2 where the

Supreme Court guided that -

“Triable issues should come to trial despite the default

of the parties. It is not in the interest ofjustice to deny
him the right to have his case heard”.

9. It was submitted that the appellant made an application for

property settlement on 19th July, 2017 which was struck out on

28th November, 2017, with liberty to restore within thirty days,

failing which the matter would stand dismissed. On 29th October,

2018, the appellant commenced a fresh action for property

settlement and maintenance of the children of the family.

10. The learned Registrar declined to hear the application and

informed the appellant that the matter had been dismissed. The

appellant then made an application to restore the matter to the

active cause list out of time on 29th March, 2018, but the registrar
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maintained her position and declined to restore the matter to the

active cause list.

11. The appellant lodged an appeal to the Judge in chambers after

obtaining leave to appeal out of time on 9th July, 2018 and the

said leave was granted. However, when the matter came up for

hearing, the learned Judge ruled that the matter stood dismissed.

12. The appellant was dissatisfied with the decision of the learned

Judge and filed the notice of appeal and memorandum of appeal

on 18th December, 2019. The appellant’s contentions are that, the

law in Zambia is that all triable issues must go to trial, that Justice

shall be administered without giving undue regard to procedural

technicalities, that justice demands that all parties are heard

before a determination is made by the court. It was submitted

that this is a proper case that should be heard in its entirety and

that the lower court’s decisions be set aside so that the matter can

be heard on the merits.

RESPONDENTS CONTENTIONS

13. The respondent filed heads of argument on 30th September, 2021.

The appellant’s nine grounds of appeal were tackled as one as they

are interrelated and premised on the lower court’s decision. The

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respondent referred to the case of D. E. Nkhuwa vs Lusaka Tyre

Services Limited3 where the Supreme Court stated that-

“Rules prescribing times within which steps must be

taken must be adhered to strictly and practitioners who
ignore this will do so at their own peril. ”

14. The case of Blair Freight International Limited vs Credit Africa

Bank Limited4 was also referred to, where the Supreme Court held

that-

“The appeal on grounds offailure to comply with the rule

was in our view properly dismissed. The rules of the court
are for the smooth administration of Justice. They ought
to be obeyed.”

15. The respondent went on to cite the case of R. B. Policies at Lloyds

vs Butler5 where it was held that-

“It is a policy of the Litigation Act that those who go to

sleep upon their claim should not be assisted by the
courts recovering their property, but another, and, I
think, equal policy behind these Acts is that there should
be an end to litigation.”

16. The respondent submitted that the appellant has constantly been

in breach of the rules of the court by not adhering to the times in

which the necessary applications ought to have been filed before

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the court as well as how and where they properly ought to have

been filed.

17. According to the respondent, the appellant sat on her rights for

over one year before she moved the court and kept the respondent

in suspense as he did not know what action she would take

further in the matter.

18. Out attention was drawn to the case of Development Bank of

Zambia and Mary Ncube (Receiver) vs Christopher Mwansa and 63

Others6, where the court held that-

“There must be finality and a party that is clearly in

default should reap the consequences of its inertia and
cannot be allowed to roam the courts like a headless
chicken keeping the other party in suspense more so that
the party was represented by counsel.”

19. The respondent submitted that the appellant’s inordinate delay

has been an injustice to him and a waste of time and resources as

the litigation has been prolonged. According to the respondent,

the rules of court must be adhered to and complied with so that

there is an end to litigation. We were urged to dismiss the appeal

for lack of merit.

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DECISION OF THIS COURT CONSIDERATION OF THE MATTERAND

VERDICT

20. We have considered the heads of argument filed by the parties, the

submissions, the record of appeal and the authorities to which we

were referred. All the grounds of appeal are interrelated and

revolve around the issue whether the lower court was on firm

ground when it dismissed the appellant’s application in the lower

court for not adhering to the unless order that was issued by the

learned Registrar.

21. The learned Registrar dismissed the appellant’s application for

property settlement for reason that the matter was dismissed on

28th December, 2017 and that Registrar had no jurisdiction to

restore a dismissed matter. The learned Judge in Chambers,

Justice Mwikisa upheld the decision of the learned Registrar and

stated that the appellant could have appealed against the decision

of the learned Registrar within thirty days. The appeal to the

learned Judge in Chambers was unsuccessful because the court

was of the view that the matter was already dismissed due to lapse

of time.

22. In the case of Ruth Kumbi vs Robinson Caleb Zulu7, the Supreme

Court held that-

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Zambian courts, where the unless order has been

made and there has been failure to comply with the order
within a specified period, that does not necessarily mean
that the action is dead or defunct, or that the court is
thereby deprived of the Jurisdiction or power to extend
time for doing a specific act within a specified time.”

23. In the Ruth Kumbi case referred to above, the Supreme Court

stated that breach of an unless order does not necessarily mean

that the action is dead or defunct or that the court is deprived of

the jurisdiction or power to extend time for doing a specific act

within a specific time.

24. The appellant’s grounds of appeal attack the lower court’s ruling

that the matter stood dismissed and that it therefore could not

entertain the appellant’s application to effectively set aside the

dismissed order and have the application for property settlement

heard on the merits.

25. In the case of Ituna Partners vs Zambia Open University Limited?,

the Supreme Court held inter alia that-

court becomes functus officio when all the substantive

issues in the cause are determined by it. ”

Black’s Law Dictionary defines the word “Dismissal” at page 502

as
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“Termination of an action or claim without further

hearing especially before the trial of the issues involved.”

26. The view that we take is that a court still retains jurisdiction to

bring an action to life where it was dismissed for failure to comply

with conditional orders. The lower court therefore erred when it

found that it had no jurisdiction to hear the appellant’s application

to set aside the dismissal order and have the application for

property settlement heard on the merits.

27. The appellant sufficiently excused her absence before the learned

Registrar as she was not aware that the matter was due for

hearing before the Registrar. Order 25 rule 5 of the High Court

Rules provides that-

“Any Judgment or order made in the absence of a party

may be set aside by the lower court upon sufficient cause
being shown.”

28. We are of the view that the High Court has inherent jurisdiction

to supervise its own orders and proceedings at all times. We note

that the absence of the appellant before the learned Registrar was

not deliberate and that she is desirous of prosecuting the matter.

We accordingly find that the appeal has merit and the Ruling of

the lower court is hereby set aside.

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29. The matter is sent back to the High Court to be heard by another

learned Registrar so that the application for property settlement is

F. M. CHISHIMBA
COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE