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Court of Appeal of Zambia - 2021 July

17 judgments
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17 judgments
Citation
Judgment date
July 2021
DSS Design Limited v CPL Limited (Appeal 236 of 2020) [2021] ZMCA 94 (30 July 2021)
Dismissal for want of prosecution set aside where missing court records and outstanding judgment-on-admission warranted de novo hearing.
Civil procedure – dismissal for want of prosecution – judgment on admission – missing/tampered court record – restoration – functus officio – reconstruction of record – de novo hearing.
 30 July 2021
Mwiya Mutakatala and Anoor v Dr. Lewis Saiwana and Ors (APPEAL NO. 203 OF 2019) [2021] ZMCA 208 (30 July 2021)
Detention found lawful under Wildlife Act; libel claim failed after the specifically sued defendant was removed by consent.
False imprisonment — reasonable grounds/probable cause — statutory powers under Zambia Wildlife Act to search and arrest — libel/defamation — misjoinder and consent order — vicarious liability — failure to produce occurrence book.
 30 July 2021
Beatrice Nalwiza and Anor v Isoka District Council and Ors (APPEAL NO. 158/2019) [2021] ZMCA 202 (28 July 2021)
Appellants failed to prove ownership of customary land; trial judge rightly excluded improperly produced documents and weighed evidence.
Customary land – proof of ownership; production of documents – court's discretion under Order 3 Rule 2; appellate interference with findings of fact; admissibility and weight of pictorial evidence; concession in pleadings vs. admission of ownership.
 28 July 2021
Falcon Restaurant and Nightclub Limited & Another v Seth Paraza (As Secretary General of National Union of Commercial and Industrial Workers (Appeal 139 of 2019) [2021] ZMCA 89 (28 July 2021)
28 July 2021
Maradona Chikwakwa and Anor v AAZ Investments Limited (CAZ APPEAL NO. 217/2020) [2021] ZMCA 275 (28 July 2021)
Interim injunction pending arbitration was set aside where respondent failed to prove irreparable harm; damages adequate.
Arbitration Act – interim measures and injunctions pending arbitration – application of American Cyanamid tests – irreparable injury and adequacy of damages – preservation of status quo – jurisdiction to appeal interlocutory/final injunctions.
 28 July 2021
Tulani Chisenga v MTN Zambia Limited and Anor (Appeal No. 23/2020) [2021] ZMCA 225 (27 July 2021)
Interim preservation of a disputed vehicle upheld; bona fide purchaser and title issues are matters for trial.
Civil procedure — Interim preservation/custody orders — Asset as subject matter of suit — Tests for preservation: subject matter, serious issue to be tried, balance of convenience — Joinder of person claiming interest — Bona fide purchaser claim is substantive and for trial.
 27 July 2021
Aqua- Rent a Dispenser Limited T/A Aqua Pure Mineral Water v Zambia Breweries Plc and Anor (APPEAL NO. 184/2019) [2021] ZMCA 269 (26 July 2021)
Appellant failed to prove construction works caused borehole contamination; EIA not required and public‑interest litigation protected from costs.
Environmental law – scope of EIA regulations – when ZEMA approval required; Civil liability – negligence and nuisance – causation and expert evidence; Proof – hydraulic pumping test and burden on plaintiff; Public-interest environmental litigation – protection under s110(4) EMA against costs/damages.
 26 July 2021
Brigade Construction Limited v Bangweulu Batteries Limited and Anor (APPEAL NO. 22/2020) [2021] ZMCA 224 (26 July 2021)
The applicant's judicial review was overtaken because the Minister had made and notified a decision on the appeal.
Administrative law – judicial review – whether a public authority has made a decision – notice in writing under s96 Mines and Minerals Development Act – interlocutory procedure in judicial review (Order 53 RSC) – overtaken by events doctrine.
 26 July 2021
Airtel Networks Zambia Plc v James Kumwenda (APPEAL NO. 19 OF 2020) [2021] ZMCA 223 (23 July 2021)
Court entered judgment on admission for K200,000; consent order enforceable; counterclaim remitted to High Court for determination.
Judgment on admission — clear and unequivocal admission required; Consent orders — enforceable as court judgments; Counterclaims — distinct proceedings; Admission by correspondence; High Court misdirection — improper interference with consent order on public policy grounds.
 23 July 2021
Celtic Freight Zambia Limited v Kashy International (CAZ Appeal 87 of 2020) [2021] ZMCA 88 (23 July 2021)
23 July 2021
M K Resources Limited and Anor v Katemo Transport Zambia Limited and Ors (APPEAL NO. 004 OF 2021) [2021] ZMCA 221 (23 July 2021)
A court may extend time after non‑compliance with an 'unless' order; extension is discretionary and requires a hearing.
Civil procedure — "Unless" orders — Effect of non‑compliance — Court retains discretionary power to extend time after non‑compliance; discretion to be exercised cautiously and on stringent terms — Amendment of process and mis‑citation of parties — cure of irregularity versus striking out writ.
 23 July 2021
First National Bank Zambia Limited v Libian African Investments Company Zambia (APPEAL NO. 64 OF 2020) [2021] ZMCA 231 (22 July 2021)
A bank put on notice of imposters who altered registry records was negligent in failing to inquire; documentary bank records required to prove large transfers.
Banking law — duty of care and fiduciary duty of banker to customer — negligence for failing to inquire when put on notice; Turquand (indoor management) rule — exceptions where outsider has knowledge or is negligent; unauthorized signatories and registry forgery; Evidence (Bankers' Books) Act — requirement of bankers' books/documentary proof to establish transfers.
 22 July 2021
Paula Van Zyl and Anor v Beanor Chingandu (APPEAL NO. 215 OF 2019) [2021] ZMCA 274 (22 July 2021)
Contract and Ministry reports confirmed the school was a private pre-school; no implied term made it a community school.
Contract interpretation – implied terms – necessity and business efficacy; education law – community school requirements vs private pre-school; admissibility and weight of Ministry monitoring reports; factual findings on donation and occupation.
 22 July 2021
Invesco Limited v the Coca Cola Company Limited (Appeal No. 234/2019) [2021] ZMCA 278 (21 July 2021)
Order 14A motions are irregular without a prior notice of intention to defend; conditional appearance is insufficient.
Civil procedure – Order 14A RSC – notice of intention to defend is prerequisite; conditional memorandum of appearance not sufficient; procedural compliance mandatory; limitation defence may be raised in pleadings; appellate relief for procedural irregularity.
 21 July 2021
Sanhe Mining Limited v Andrew Mazimba and Anor (APPEAL NO. 83/ 2017; CAZ / 08/ 131/2017) [2021] ZMCA 239 (16 July 2021)
An order obtained by counsel lacking a practising certificate is not automatically void; the advocate, not the client, bears the illegality.
Legal Practitioners Act — effect of documents/process prepared or filed by an unqualified advocate — whether such documents or orders are void — client protection from penalisation — reliance on National Bank of Kenya v Anaj Warehousing Ltd.
 16 July 2021
Astro Holdings Limited and Ors v Edgar Hamuwele (Sued as Receiver of Courtyard Hotel Limited in Receivership) and Ors (Appeal No 213/2020) [2021] ZMCA 273 (12 July 2021)
Whether plaintiffs proved indebtedness under investment agreements and equitable mortgages; trial judge wrongly raised Order 88 but debt was unproven.
Equitable mortgage; mortgage action; sufficiency of statement of account; Order 88 (RSC) procedural requirements; burden of proof in mortgage/possession claims; return of securities (title deeds).
 12 July 2021
IFI Furnishers Limited v Bashir Ahmed Yousuf Ali Patel (APPEAL NO 222/2019) [2021] ZMCA 277 (12 July 2021)
Application for a new long lease dismissed where reconciliation showed rent arrears and tenant acted inequitably.
Landlord and Tenant (Business Premises) Act — application for new tenancy; renovation cost‑sharing and reconciliation; offsetting renovation costs against rent; rent arrears; clean hands doctrine; appellate review of factual findings.
 12 July 2021