Deliwe Masendeke v Namalambo (T/A Mary Queen of Peace Girls School and Anor (Appeal 190 of 2016) [2018] ZMSC 564 (11 July 2018)

J1 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 190/2016 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: DELIWE MASENDEKE APPELLANT AND CELINE NAMALAMBO (T/A MARY QUEEN OF PEACE GIRLS SCHOOL) 1st RESPONDENT VIELAR HAMATU (T/A MARY QUEEN OF PEACE GIRLS SCHOOL) 2nd RESPONDENT CORAM : Mambilima, C. J, Hamaundu, and Malila, JJS On 20th July, 2017 and 11th July, 2018 For the appellant : Mr P. Mulowani, Messrs Dzekedzeke Advocates For the respondent : Mr C. Mundia, S. C., Messrs C. L. Mundia and Company JUDGMENT Hamaundu, JS. delivered the judgment of the court Cases referred to: » < 1. Stanley Mwambazi v Morester Farms Limited (1977) ZR 108 2. Chipili and Another v Kanshimike & Another (2012) 2 ZR 483 3. NFC Africa Mining Plc v Techpro (Z) Limited (2009) ZR 236 । « t '» '» '» ’» » J 2 4. Twampane Mining Co-operative Society Limited v E & M Storti Mining (2011) 3 ZR 67 5. Nkhuwa v Lusaka Tyre Service Limited (1977) ZR 43 6. Access Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture (SCZ/8/52/2014) 7. Nahar Investment Limited v Grindlays Bank International (Zambia) Limited (1984) ZR 81 Legislation referred to: The Constitution of Zambia, Article 118 This motion is by the appellant for an order of the full bench of this court to vary, reverse or discharge the order of a single judge of the court which dismissed the appellant’s appeal for irregularity. The background to this motion is this: Between August and September, 2016, the appellant, being out of time within which to file her record of appeal, applied for leave to lodge the record out of time. The application was granted by a single judge of this court, who gave her 30 days in which to lodge the record. The appellant did indeed lodge the record of appeal, but without the heads of argument. This wa£ contrary to the* rules. On an application by the respondents to dismiss the appeal for irregularity, the single judge dismissed thb appellant’s appeal. Hence thi§ motion. '» '» '♦ '» '» J 3 In support of the motion, the appellant relies on Article 118 (2)(e) of the Constitution of Zambia which provides that justice shall be administered without undue regard to procedural technicalities. The appellant also relies on some of our authorities such as Stanley Mwambazi v Morester Farms Limited (1) and Chipili and Another v Kanshimike & Another*2’. In these two cases we, generally, laid down the requirement for triable issues to come to trial even where there was default by the parties. In the second case we, again, emphasized the need for contentious issues to go to trial. Opposing this motion, the respondents have also lined up a number of decided cases in which we have taken a tough approach to litigants that do not follow rules of court. Notably among these are; NFC Africa Mining Plc v Techpro (Z) Limited*3’ where we said that rules of court are intended to assist in the proper and orderly administration of justice and must, therefore, be strictly followed; and, Twampane Mining Cp-operative Sopiety Limited y E & M Storti Mining*4’ where we repeated what we said in Nkhuwa v Lusaka Tyre Service Limited*5* that those who choose to ignore rules of court do so at their own peril. '» » » '» '» With regard to Article 118 (2) (e) of the Constitution, we said in Access Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture’6’ that the Constitution never means to oust the obligations of litigants to comply with procedural requirements as they seek justice from the courts. As regards the cases cited by the appellant, we would like to say that the rule that we laid down in those cases was specifically for matters that have not yet gone for trial. With regard to defaults on appeal the following is what we said in Nkhuwa v Lusaka Tyre Services Limited; “It is not appropriate to apply to an application for an extension of time within which to appeal the same principles which obtain when there is some delay in interlocutory proceedings before trial; in the one case the litigant has had a trial and lost, while in the other he has had no trial at all” Therefore, the two decided cases relied on by the appellant are • • • « « not applicable here as they rightly belong to default before trial. For defaults on appeals the cases cited by the respondents are to the point. We think, however, that what we said in Nahar Investment J 5 Limited v Grindlays Bank International (Zambia) Limited17’, is of particular relevance in this case, and is worth repeating. We said: “We wish to remind appellants that it is their duty to lodge records of appeal within the period allowed, including any extended period. If difficulties are encountered which are beyond their means to control (such as non-availability of the notes of proceedings which it is the responsibility of the High Court to furnish), appellants have a duty to make prompt application to the court for enlargement of time. Litigation must come to an end and it is highly undesirable that respondents should be kept in suspense because of dilatory conduct on the part of appellants. Indeed, as a general rule, appellants who sit back until there is an application to dismiss their appeal, before making their own frantic application, do so at their own peril.’’(page 82) In this case, one of the reasons given by the appellant for failing to file the heads of arguments together with the record of appeal was that her advocates had challenges in obtaining a record of proceedings; and that this prevented them from filing conclusive heads of arguments together with ‘the record. Th£ appellant could have applied for extension of time to file the record of appeal so that it could be filed when the heads of argument were ready. Ihstead, the appellant chose to file only the record of appeal, contrary to the rules. J6 Further, the record shows that, up to the time that the respondents filed their application to dismiss the appeal for irregularity, the appellant had not made any application to correct the irregular filing of the record of appeal. We think, therefore, that the appellant indeed ignored the rules at her own peril. We, therefore, find no merit in this motion. We dismiss it, with costs to the respondents. I. C. Mambilima CHIEF JUSTICE E. M. Hamaundu SUPREME COURT JUDGE Dr. M. Malila, Sc. SUPREME COURT JUDGE