Chana Investments Holdings Limited v Zambia National Holdings (APPEAL NO. 62/2015) [2017] ZMSC 306 (28 November 2017)

Rl SELECTED RULING NO. 59 OF 2017 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) P.2067 APPEAL NO. 62/2015 SCZ/8/279/2014 BETWEEN: CHANA INVESTMENTS HOLDINGS LIMITED APPELLANT AND f' ZAMBIA NATIONAL HOLDINGS RESPONDENT Coram: Wood, Malila and Musonda, JJS on the r h , 14th and 28th November, 2017 For the Appellant: Captain (Rtd) Chooka, Lewis, Nathan Advocate s For the Respondent: Mr. L. Mwanabo, L. M. Cha mber s RULING MUSONDA, JS, delivered the Ruling of the Court Cases referred to: 1. Costellow -v- Somerset County Council: (1993] 1 ALL. E. R. 952 Legislation referred to: 1. Rule 19(1) of the Supreme Court of Zambia Act, Chapter 25 of the Laws of Zambia 2. Rules 49(5) and 58(6) of the Supreme Court (Amendment) Rules, 3. Rule 53(2) of the Supreme Court Rules CAP. 25 R2 P.2068 This is our Ruling on a preliminary application which was mounted by counsel for the respondent pursuant to Rule 19(1) of the Supreme Court of Zambia Act, Chapter 25 of the Laws of Zambia in terms of which counsel for the respondent has sought to have us dismiss this appeal on account of the appellant's alleged failure to comply with Rules 49(5) and 58(6) of the Supreme Court (Amendment) Rules, 2012. The respondent's application has arisen by way of a Notice to Raise a Preliminary Objection pursuant to Rule 19(1) of the Rules of this court as highlighted above. Although an application of this nature ought to have been supported by an appropriate Affidavit, it transpired when we heard ( counsel for both parties that there was no dispute or disagreement as to the facts and circumstances which had prompted the same. Under those circumstances, we felt comfortable to entertain the objection, particularly in light of the fact that no objection was raised by the appellant's counsel. The relevant facts and circumstances surrounding this application were of the plainest. R3 P.2069 On 2 nd May, 2012, ajudge of the High Court of Zambia, sitting in an appellate capacity, delivered a Ruling in terms of which that learned judge allowed an appeal which the respondent had launched against a Deputy Registrar's earlier refusal to uphold what the learned judge had deemed to have been a legitimate preliminary objection to an execution which the appellant had launched against the respondent. For completeness, the learned judge determined that the execution had arisen in circumstances whereby the appellant had arbitrarily determined interest sums which it had endorsed on the execution process had been irregular and liable to be set aside. The learned judge's determination, as expressed above, ( displeased the appellant which proceeded to secure leave of the court below to appeal to this court. That leave was granted on 18th November, 2014. At the time when the leave was granted, Messrs Hobday Kabwe & Co. were acting for the appellant while Messrs L. M. Chambers were acting for the respondent. Counsel for the appellant subsequently filed the requisite Notice and Memorandum of Appeal as well as the Record of Appeal R4 P.2070 and Heads of Argument. The Record of Appeal and Heads of Argument were filed on 28th April, 2015. Although the appellant's Heads of Argument were addressed to Messrs L. M. Chambers, the Record of Appeal does not contain a filed Notice of Address for service by these advocates. On 12th October, 2017 Messrs Hobday Kabwe & Co. filed a Notice of withdrawal as the appellant's advocates. That Notice was addressed to Josephat Chanda and Messrs L. M. Chambers. On 25 th October, 2017 Messrs L. M. Chambers filed the application which is now the subject of this Ruling. On 7 th November, 2017, the main appeal in this matter came :( up for hearing before us during our Kabwe sessions. On that day, a Mr. Josephat Chanda informed us that he was the appellant's chairman and that, following Messrs Hobday Kabwe & Co. 's withdrawal as the appellant's advocates, the appellant had since appointed Messrs Lewis, Nathan Advocates in their stead. Mr. Chanda further informed us that the advocate who had conduct of RS P.2071 the appellant's appeal was Captain Chooka who was not in court because he was unwell and receiving treatment at the time. Mr. Chanda also informed us that Messrs Lewis, Nathan Advocates had been appointed some two months prior to the date when we were sitting at Kabwe. He further confirmed that as far as he was concerned, Messrs Lewis, Nathan Advocates had replaced Messrs Hobday Kabwe & Co. and had even received the Notice relating to the hearing of that day. Having regard to the predicament in which the appellant found itself, Mr. Chanda sought an adjournment so that the appellant's counsel could be in court at the next hearing. ( Mr. Mwanabo, learned counsel for the respondent was invited to react to the adjournment which had been sought on behalf of the appellant. Counsel confirmed that he did not object to the granting of a short adjournment. Accordingly, we proceeded to grant the adjournment which had been sought on behalf of the appellant and directed Mr. Chanda to ensure that the appellant's R6 P.2072 counsel attended court on 14th November, 2017 which was the date to which we adjourned the matter. On 14th November, 2017 we sat.to hear this matter. On that day, Captain Chooka, the appellant's counsel, was in attendance and rose to address us. His brief address was that he had only placed himself on record the previous day and that, under those circumstances, he was not in a position to proceed with the matter. After a few verbal exchanges between counsel Chooka and ourselves touching on the position which we had taken in Kabwe when we adjourned and gave strict directives to Mr. Chanda, the appellant's chairman, we invited Mr. Mwanabo, learned counsel for ( the respondent, to address us. Mr. Mwanabo immediately indicated that he had filed a preliminary application or objection pursuant to Rule 19(1) of the Rules of the Supreme Court, 2012. According to counsel, the gist of the respondent's objection was premised on Rule 49(5) of the Rules of the Supreme Court, R7 P.2073 CAP. 25 as amended in 2012 which requires that a Notice of Appeal and Memorandum of Appeal must be served upon a respondent. Counsel contended that, in the context of this appeal, the respondent was never served and that he only learnt about the appeal when he saw the cause list for our Kabwe Sessions. According to counsel, his firm was served with the cause list in question presumably because they had been acting for the respondent in the court below. Learned counsel further informed us that, quite apart from counsel for the appellant having failed to serve the Notice and Memorandum of Appeal, they also neglected to serve the Record of Appeal and its accompanying Heads of Argument as enjoined by ( Rule 58(6) of the Rules of this Court as similarly amended in 2012. Counsel then went on to reveal that, having regard to the omissions and breaches of the law by the appellant which have been noted above, he immediately proceeded to file the application which is the subject of this Ruling upon Messrs Hobday Kabwe & R8 P.2074 Co. who refused to acknowledge service on the basis that they had since ceased to act for the appellant. In his concluding submission, Mr. Mwanabo complained that even after his firm had served the application in question upon the appellant's representative in Kabwe on 7 th November, 2017, nothing had been done in the way of curing the appellant's omission and failure to observe the law by serving the court process relating to the appeal upon the respondent. In his brief response, Captain Chooka, the learned counsel for the appellant, confirmed that, indeed, there had been no service of the court documents complained about upon the respondent and that he was not even in a position to explain why that had been the case. Captain Chooka went on to inform us that he only saw the Notice relating to the application which counsel for the appellant had mounted the day before the hearing. R9 P.2075 When we reminded Captain Chooka that the appellant's appeal found itself in double jeopardy and stood imperiled by reason of the fact that the Record had not been appropriately numbered after every fifth line as dictated by the Rules, all that Captain Chooka could do was to appeal to us to use our discretion and give the appellant the opportunity to amend the Record and proceed to effect service upon the respondent. We have given anxious consideration to the arguments and submissions which Mr. Mwanabo, counsel for the respondent, placed before us and the brief reaction to the same by Captain Chooka, learned counsel for the appellant. Given that there is no dispute or disagreement as regards the factual matrix around which this application revolves, we propose to begin our reflections by unravelling the legal matrix which had prompted the preliminary application which counsel for the respondent mounted before us. RlO P.2076 A fitting starting point to the ensuing discourse is Rule 49(5) of the Supreme Court Rules, CAP. 25 as amended which provides as follows: "5. A notice of appeal, together with the memorandum of appeal, shall be lodged and served within a period of 14 days, on all parties directly affected by the appeal or on their practitioner." The second Rule, which counsel for the respondent, contended was not observed by the appellant, is Rule 58(6) of the Suprem e Court Rules, CAP. 25 as amended by the Amendment Rules of 2012. That Rule is couched in the following terms: "6. The appellant shall, at the same time of filing the record of appeal under sub-rule 5, serve a copy thereof on each party who has been served with the notice of the appeal and has filed a notice of address for service ... " Having regard to the position, which has not been contested by counsel for the appellant, that, in the context of this application, the Notice and Memorandum of Appeal were not served upon the respondent or its counsel, we can immediately discount the relevance of Rule 58(6). For the removal of any doubt, the obligation which Rule 58(6) casts upon an appellant presupposes Rl 1 P.2077 that there had been service of the Notice and Memorandum of Appeal on the respondent who, in turn, will have filed a notice of address for service in obedience to Rule 53(2) of the Supreme Court Rules CAP. 25 as amended. For completeness, the wording of Rule 53(2) imposes a mandatory duty upon every " ... person who, by virtue of service on that person of a notice of appeal becomes a respondent to any intended appeal [to] file with the Registrar of the High Court and serve on the appellant notice of a full and sufficient address for service [within seven days after service of the notice of appeal]". In the context of this appeal, the respondent could not discharge the duty which Rule 53(3) imposed upon it simply because it was unaware that an appeal to which it was a party had been set in train by the appellant. Turning to Rule 49(5), it can scarcely be doubted that, like Rule 53(3) above, this Rule also casts a mandatory duty upon an appellant to serve a filed Notice and Memorandum of Appeal upon " ... all parties directly affected by the appeal or on their practitioner. )) R12 P.2078 By counsel for the appellant's own admission, there had been no service of the Notice and Memorandum of Appeal on the respondent. Clearly, this appeal, so far as it purported to affect the respondent, was not competently before us. We have said time and time again that the Rules which are imbedded in the Supreme Court Act, CAP. 25 afford " ... an indispensable framework for the orderly administration of justice ... " (to borrow the words of Sir (later Lord) Thomas Bingham in Costellow -v- Somerset County Council 1 . In the context of this appeal, not only did the appellant fail to comply with the Rule which governs service of the Notice and Memorandum of Appeal, the Record itself was not prepared in a manner which was compliant with the Rules. Counsel for the appellant invited us to use our discretion and give the appellant an opportunity to amend the Record and comply with the requirements as to service. Rl3 P.2079 Although we remain mindful that the Rules of this court do not necessarily serve as a prison which constricts the exercise of judicial discretion in the conduct of litigation, nothing has been placed before us on behalf of the appellant which would warrant our proceeding otherwise than to dismiss this appeal in its entirety. The respondent will have its costs which, unless agreed, should be taxed. A. M. WOOD SUPREME COURT JUDGE DR. M. MALILA, SC SUPREME COURT JUDGE ...... .... .. ...... .... ..... .... ........ M. MUSONDA, SC SUPREME COURT JUDGE