Aayatin Investments Limited and Anor v Zhang Ling Ling (NOM. 31 OF 2018) [2018] ZMCA 609 (4 October 2018)

IN THE COURT OF APPEAL OF ZAMBIA NOM. 31 OF 2018 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: AA YA TIN INVESTMENTS LIMITED BASHI ALI 1st APPLICANT 2nd APPLICANT AND ZHANG LING LING RESPONDENT ON: 26th September and 4th October 2018 For the 1s t and 2nd Applicants: K. M. Simbao, Messrs Mulungushi Chambers For the Respondent: D. N. Chibombe (Mrs.) Messrs Mumba Malila and Partners RULING CHASHI, JA d eliver ed the Ruling of the Court. Cases referred to: 1. Philip K . R. Pascall and Others v ZCCM Investment Holding Plc - CAZ Appeal No. 92 of 2018 2. Socotec International Inspection (Zambia) Limited v Finance Bank - SCZ Appeal No. 149 of 2011 Legislation referred to: 1. The Court of Appeal Rules, 2016 2. The Court of Appeal Act, No. 7 of 2016 3. The Supreme Court Practice (White Book) 1999 -R 2- In this motion, the Applicants are seeking an order to vary and reverse the ruling of a single Judge which was delivered on 27th July 20 18. The application has been made pursuant to Order 10/2 (8) of The Court of Appeal Rules (CAR}1 as read with section 9 (b) of The Court of Appeal Act (CAAJ2. The brief background to this matter is that, the Respondent raised a preliminary issue before a s ingle Judge, questioning the competency of the appeal as the Appellants had not complied with Order 10/3 (9) CAR. According to the Respondent, the Appellant filed the memorandum of appeal and the notice of appeal on 19th March 2018, but did not serve the same on the Respondents. The Respondents were only served with the record of appeal on 15th May 20 18. Further according to the Respondent, the Appellants have complied with the Judgment as they have vacated the premises and it is only the issue of costs which is outstanding. In opposing the motion, Counsel for the Respondent submitted that Order 10 / 3 (9) CAR is couched in mandatory terms and gives the Court no discretion. That as such the Rule should be adhered to strictly as the rules are of critical significance as they are meant for fair notice to be given to the Respondent on the case it will meet in court. -R 3- Order 10 / 3 (9) CAR provides as follows: "A notice of appeal together with the memorandum of appeal shall be lodged served, within a period of fourteen days on all the parties directly affected by the appeal or on their practitioner. " In the ruling being challenged, the learned Judge opined that the fourteen days starts running a day after the filing of the notice of appeal and memorandum of appeal with the Registrar of the High Court. The Judge observed that the Appellants did not dispute the default, but pleaded that the same was not prejudicial to the Respondent's case. According to the Judge, the issue was not about prejudice but adherence to procedure so that all matters can be conducted in an orderly fashion. The learned Judge further observed that, though the Appellants still had a window to atone for the default under Order 13/3 CAR, they did not take advantage of that. The learned Judge then posed the question as to what the effect of the default was. In answering the question, he observed that the Rule uses the word "shall" denoting the mandatory nature of the requirement and that -R 4- no appeal can be processed if that provision has not been complied with. The learned Judge was of the view that, in this case, the Appellants having defaulted and not having sought the aid of Order 13/3 CAR, there was no appeal before the Court and upheld the preliminary issue, and accordingly dismissed the appeal for non-compliance of the Rules. The gravamen of the Appellant's motion is that, the Respondent by having filed a memorandum of response, they have in accordance with the provisions of Order 2/2 of The Rules of the Supreme Court (RSq 3 waived the irregularity. We have considered the motion and the arguments by the parties. In our view, although, Order 10/9 (3) CAR is couched in a mandatory manner, non-compliance thereto will not always be fatal to the appeal. As we observed in the case of Philip K. R . Pascall and Othe rs v ZCCM Inve stments Holdings Plc 1 , each case turns on its own facts. And in accordance with the observations of Malila, JS in the case of Socote c International Inspe ction (Zambia) Limite d v Finance Bank2 , whether or not an appeal is to be dismissed is to be taken on a case by case basis, which invariably implicates the exercise of judicial discretion. -R 5- As earlier alluded to, although Order 10/3 (9) CAR is couched in a mandatory manner, non-compliance will not always be visited with the sanction of dismissal of the appeal. As correctly observed by the single Judge, having not complied with the provision, the Appellant could still have made amends under Order 13 / 3 CAR which entitles the court to exercise judicial discretion. We note as correctly observed by the learned Judge that the Appellant did not take advantage of that avenue. However , we note that the Respondent in this matter filed a memorandum of response to the Appellants heads of argument on 1st June 2018; indicating that all parties at the time the ruling was being made, were ready to argue the appeal in the main. To that extent, we agree with the Respondent that no prejudice would be occasioned to the Appellant's case. We are also cognizant of the prov1s1ons of Order 10/9 (12) CAR, which provides as follows: "The court may in any case direct that the notice of appeal be served upon a party to the proceedings in any court below on whom it has not been served, or upon any p erson not party to those proceedings." -R 6- In the view we have taken, this motion is a llowed and the Order to dismiss the appeal for non-compliance is set aside and it is accordingly ordered that the appeal be cause listed for hearing. Costs to abide the outcome of the appea J. CHASHI COURT OF APPEAL JUDGE F. M. LENGALENGA COURT OF APPEAL JUDGE M. J. SIAVWAPA COURT OF APPEAL JUDGE