Fruit and Veg City Holdings (Pty) Limited v Martin Simumba (APPEAL NO. 010/2017; CAZ/8/62/2016) [2017] ZMCA 489 (11 April 2017)

,. ,. ?_ ~ ( y n, r . ./1 : r IN THE COURT APPEAL FOR ZAMBIA Cirri I~/ 6-;z / r;zJJJ I 6 APPEAL NO. 010/2017 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: FRUIT AND VEG CITY HOLDINGS (PTY) LIMITED APPELLANT AND MARTIN SIMUMBA RESPONDENT CORAM : Chisanga JP, Chishimba and Sichinga, JCA On 11 th April 20 17 For the Appellant: Mr. L. Linyama, Messrs Erick Silwamba, Jalas i & Linyama, Legal Practitioners For the Respondent: ... ... Mr. P. Chungu, Messrs Ranchod Chungu Advocates I\ I\ ... Mr. Lisi7!1.ba of Messrs Mambwe Siwila & Lisjmba ., Advocates JUDGMENT CHISANGA, JP delivered the Judgment of th e Court Cases referred to: 1. Zinka vs The Attorney General (1990-92) Z. R. 73 2. Omar vs Zambia Airways Corporation Ltd (1986) Z. R. 23 3 . Tembo vs Tembo (2004) Z. R. 79 4 . Chikuta vs Chipata Council (1974) Z. R. 241 5. DPP vs Jack Lwenga5 (1983) Z. R. 37 6. Zulu vs Avondale Housing Project Limited (1982) Z. R. 172 J1 r r ,. r ,. 7. Zambia Revenue Authority vs Jayesh Shah (2001) Z. R. 60 8 . Hu Herova and Luo Geng vs John Kapotwe & Kalwa Food Products Ltd SCZ/8/58/2007 9. Chisata vs Attorney General (1990/92) Z. R. 15 10. Ashmore vs Corporation of Lloyd's 2 All ER 486 11. Buchman vs Attorney General ( 1993/94) Z. R. 13 12. Mususu Kalenga Building and Winne Kalenga vs Richman's Money Lenders Enterprises (1999) Z. R. 27 13. Access Bank Zambia Limited Group Five vs Zcon Business Joint Venture . 14. Mohamed A Omar vs Zambia Airways Corporation Ltd (1986) Z. R. 23 Th is appeal is against a ruling of the court below, wherein the learned trial j u dge ordered discovery of documents exhibited to an affidavit filed in support _,. of an a pplication to cer tify the atten dance of an,.additional advocate. Said ., discovery was .to-be concluded by th e 16 th September 2016. Th e background to that order was th at the plaintiff, who is now respondent, failed to comply with the Order for Direction s timeously . An application was as a result made to the Deputy Registrar, for extension of time within which to comply with the order for d irections. Objection was made to that application by the d efendant, who is appellant in this matter. Th e Depu ty Registrar took the view that extension of time as sought wou ld inflict prejudice on the defendant. She thus refu sed to extend time. The pla intiff appealed against that refusa l to a judge at chambers. When the matter was called for hearing, learned cou nsel for the pla intiff informed the J2 . /; : ,. ,. ,. "' : • <T ,. ' . court th at h is instructions wer e to a ba ndon th e a ppeal and to rely on th e documen ts exhibited to the affidavits. The a pplication to have the m atter transferred back to th e commercia l list was equally a b a ndoned . Lear ned counsel for the d efenda nt in the court b elow, Mr. Linyam a in formed t h e cou rt th at he h a d no o bjection . The learned trial judge as a result, m ade th e followin g order: Upon hearing counse l for the plaint iff and the defendant, both the appeal and the application to transfer are h e reby abandoned and the matte r s hall accordingly proceed on the documents on record. Mr. Linyam a then s aid th at in view of the turn of even ts, h e wou ld seek a n a dj ournmen t of the m atter so as to ob tain instruction s on th e d ocuments " " " exhibited to th e a ffidavits . The matter was as a _ resu lt a djourned to th e 3 0 th " May 2 01 6 a t 09 :00 h ours . When the m atter was called for h earing on that d a te, Mr. Lisimba indicated th at th ey h a d b een served wit h a notice of intention to object. Mr. Linyam a informed the cour t tha t h e was objectin g to the p roduction of the s a me documen ts referred to by Mr. Lisimba. Thereafter , the learn ed tria l judge r endered a ruling, wherein h e expressed the op inion tha t his u n d er standing of p aragra ph 7 of th e affidavit in suppor t of summon s to certify the attendance of an additiona l a dvoca te was tha t it wa s not in tended to intr oduce th e documents exhibited to th at affidavit into eviden ce, but to d em on strate th e complexity of th e issu es and under score t h e n eed for an a ddition al a dvocate. J3 ,. ,. ,. ,. That an intention to rely on the exhibited documents was not stated. He proceeded to express the view that the proper way to introduce documentary evidence in any civil proceedings was by way of discovery and inspection or by way of notice to the other party, to enable them respond appropriately. Any other way was alien to the civil procedure in this jurisdiction. He thus ruled any attempt to refer to any of the exhibited documents illegal. At that juncture, learned co-counsel for the plaintiff, Mr. Chungu, applied for an adjournment so as to seek instructions. It appears that counsel's instructions were to restore the appeal that had been abandoned to the active cause list, as the parties argued that application on 9 th August 20 16, when the matter was next called for hearing. The learned trial " judge rendered the ruling on 22nd Augu_st 2016. It is that_ ruling that is subject " " " of this appeal, on the following grounds: 1. The learned puisne judge misdirected himself at law when he proceeded to determine an Appeal from the decision of the Deputy Registrar without affording the appellant an opportunity to be heard on the said Appeal. 2. The learned trial judge erred both in law and in fact by hearing and determining an Appeal filed without leave of the court after the expiration of the statutory period of seven days as provided for by the provisions of Order XXX Rule 10 of the High Court rules of the High Court Act CAP 27 of the Laws of Zambia. J4 ,.. r r ,. ,. 3. The learned pu1sne judge misdirected himself at law by restoring an abandoned a ppeal which stood dismissed after abandonment of th e same by the intended appellant being the respondent herein. Heads of argument were filed m support of the appeal, and m opposition thereto. Grounds one and two of the appeal are argued together. It is submitted that the learn ed judge exceeded his jurisdiction by proceeding to d e termine the appeal without hearing the parties suo motu. This approach denied the appellant an entrench ed right to be heard and flouted the rules of natura l justice. Reliance is placed on Zinka vs The Attorney General1 . 71 71 " Learn ed counsel poin_ts out that a s an application from a decision of a Deputy Registrar to a judge in chambers is a hearing de nova, the judge was required to determine that the appeal was properly before h im, and thereafter proceed to h ear t h e parties. It is argued that the appeal having not b een lodged within the prescribed mandatory period, and the respondent having not sought leave of the Court to Appeal, the appeal was improperly before the judge. Omar vs Zambia Airways Corporation Ltd2 and Tembo vs Tembo (2004)3 a re recoursed in that connection. It is further contended that as the appeal was not filed in compliance with the Rules, the lea rned judge had no jurisdiction to make the Order s he made. Chikuta vs Chipata Council4 is referred to in that regard. JS ,. r r . 1.1 .: •<·T r , The arguments on ground 3 of the a ppeal are that the learned judge a bdicated his jurisdiction to determine the application before him by creating his own line of proceedings and ended up making an order for r elief that was not prayed for at that stage. According to learned counsel, t h e question before the learn ed judge was whether the appeal that had been a bandoned could be restored on the grounds stated in the summons and the supporting affidavit. Referring to the High Court d ecision in DPP vs Jack Lwenga5 , it is contended that the a ppea l could not be restored, as the requisite elements for such an order were not present. It is a rgued that the learned judge failed to adjudicate over an issue in controversy being the merit of the application for restoration of the appeal. This was a misdirection. Zulu vs Avondale Housing Project Limited6 is ref ev-red to in that respect. The respondent's submissions in response to the arguments on grounds 1 and 2 are that the matter has not been tried on merit, for a number of reasons. The learned judge wished to conclude this matter timeously, and on merit. The appellant is accused of attempting to frustrate this matter at preliminary stage, without a dducing any evidence, contrary to the principle in Zambia Revenue Authority vs Jayesh Shah7 , where the Supreme Court h eld that cases should be decided on their substance and merit where there has b een only very technical omiss ions or oversight not affecting the validity of the process. It is argued that the appellant, who had not objected to the suggestion that the m atter proceed s on the basis of the documents on record was n ow, J6 ./'f : ,. r ,. r inconsistently, arguing that the judge shou ld n ot h ave given directions to proceed in the m anner that h e h ad ordered. This, according to learned counsel, is incredulous . It is argu ed that th e filing of the notice to object to the use of the docum ents on record was an afterthought and a clear ploy to delay and fru strate the process. Order 3/5/ 12 Rules of the Supreme Court is referred to in that connection. Hu Herova and Luo Geng vs John Kapotwe & Kalwa Food Product s Ltd8 as well as Chisata vs Attorney Gene ral9 are also ref erred to. It is learned counsel's further contention that th e trial judge took control of the proceeding wh en h e made th e Order complained of, and it was coun sel's duty to assist the jud ge to arrive at a speedy conclusion of the matter without " raising protracted a rg_uments. Ashmor~ vs Corporation _ of Lloyd's 10 is relied " " " " upon for this argum ent. Learn ed counsel furth er contends that it was appropriate for the trial judge to make the Order on t h e way forward, as the ruling by th e Deputy Registrar fell way below the standard established in our cour t system regarding extension of time . As no prejudice will be inflicted on th e a ppellants, the respondents support th e trial judge's decision. In learned counsel's view, the argument that the appeal was brought before th e court after the 7 day period was never raised b efore the cour t below, and cannot now be raised on appeal. Buchman vs Attorney Gene ral1 1 , and J7 ' r .}¥ : - ,, . }¥ : r ,. r Mususu Kalenga Building and Winne Kalenga vs Richman's Money Lenders Enterprises12 are said to be support for that a r gument. Regarding ground three, it is argued that the learned trial judge properly exercised his inherent jurisdiction to order the Modus Operandi of the case management. That it was proper to do so, and the court was judicious in its exercise of d iscretion. It is learned counsel's further contention that the court having ordered that the trial could proceed by way of documents on record, and the a ppellant having not objected, the court ought not to h ave entertained th e objection by the appellant afterwards. However, the court could not be faulted for exercising its discretion as it did. We are urged to allow the matter to proceed as ordered by the learned judge in the court below. ,, At th e h earing m this court, Mr. Linyama placed reliance on the h eads of argument but augmented the a r gumen ts on ground 2. In effec t, he reiterated, as agued in the heads of argument that the appeal against the Deputy Registrar's decision was filed a month after the ruling had been delivered. He pointed out that as shown at page 132 of the Record of Appeal, he canvassed that issue in the court below. The learned judge however did not address the issue. On the constitutional argument that matters r equire do be addressed without undue regard to technicalities, Mr. Linyama r efer r ed to Access Bank Zambia Limited Group Five vs Zcon Business Joint Venture 13 . He argued that a rticle 118(2e) was not d esigned to give litigants the latitude to present their cases without following the procedures of the court. J8 ,. ... '-, ' ,. ... '-, ' ,. ... '-, ' ,· ... '-, ' r Learned counsel a rgued that rules of procedure cannot b e breached on accoun t of a provision in the constitution th at m atters should be h eard on the merit. His view was that litigants are not at liber ty to breach the rules premised on Article 118. In response, Mr. Chungu placed reliance on the heads of argument. According to learned counsel, th e appeal was called a nd h eard, until it was abandoned. The a ppellant did not object. It was only on th e application to restore the abandoned appeal that the appellant ra ised t h e 7 day rule. According to coun sel, it was too la te in the d ay because the a ppeal h a d b een called and h eard , a nd the appellant could not ra ise the issue before this court. " " " " " Mr. Chung~ argued that tl).e Access Bank _case did not state that non compliance with the rules was fatal. The court said d e termin ation h ad to be m a de on a case by case b asis. Further, that the Suprem e Court a ls o observed that procedural rules are directory a nd only when they go to th e root of th e m atter would they be fatal. Mr. Chungu submitted that the appellant h ad n ot shown nor argued how the respondent's n on-compliance goes to the root of the matter or indeed h ow it prejudices th e a ppella nt's case. Mr. Lis imba's additional arguments were that the m a tter h ad not been tried on the merits on account of the appellant's refusal to proceed as ordered by the trial cour t, to discover d ocumen ts that should be relied upon at trial. The m atter having n ot b een h eard , issues of finality do n ot arise. To t h a t extent, the Jg r r ./¥ : . r . /¥ : ,. ,. Access Bank case is distinguishable as th ere, the matter was tried, and went on appeal thereafter. Article 1 18 was discussed in line with fina lity of a matter, wh ereas in this case, the parties wer e yet to be heard. He urged the court to uphold the direction of th e trial judge, that there be in s p ection a nd discovery. In learned counsel's view, the Deputy Registrar's ruling is not just. In response to the respondent's arguments, Mr. Linyam a argued that the appeal was n ot argued befor e it was abandoned . Learned counsel argued that the appeal has never been heard. The learned trial judge was duty bound to restore the a ppeal and give the par ties an oppor tu nity to submit on the appeal. It was his view that the learned judge was too generous to the respondent. " We have considered the ground1s of appeal, the a r gum ents for and "against the " appeal, as weU as the r ulin g a p p ealed aga inst, and the proceedings in the court below. As righ tly argued by Mr. Linyama, an a ppeal from a Deputy Registrar to a Judge at chambers is a rehearing. The a uthorities cited by Mr. Linyama in that r espect confirm that this is so. Thus, the parties are n ot lim ited to th e evidence they previously relied upon, nor is the judge bound by the p r evious exercise of d is cretion by t h e Deputy Registrar. That is the effect of Mohamed A Omar vs Zambia Airways Corporation Ltd14 wher e the Supreme Cour t said: "With regard to the proceedings before the judge, the editorial note to Order 58 rule 1 makes it clear that an appeal to a judge in chambers from a deputy registrar is an actual rehearing. We also agree with the second paragraph of the J10 . ,.. ,.. . )1 : r ,.. r editorial note 58/ L/ 2 , that it is common practice for a judge in chambers, subject of course to the question of costs, to admit furthe r additional evidence by affidavit ... " Where a party is aggrieved with a decision of a Deputy Registrar or Registrar as the case may be, he may appeal to a Judge at ch a mbers. Order XXX rule 10 High Court Rules CAP 27 requires the aggrieved party to a ppeal by notice in writing to attend before the Judge without a fresh summons, within seven days a fter the decision, order or direction compla ined of, or such further time as may be a llowed by a Judge or a Registr ar. Perhaps we should reproduce Order XXX 10 (1): Any person affected by any decision, order or direction of the Registrar may appeal therefrom to a Judge at chambers. Such appeal shall be by notice in " writing to attend before the Judge without a fresh s ummons, within seven days I\ I\ I \ I\ afte r the d e cision, orde r or dire ction complained of, or such further time as may ,., be allowed by a Judge or-the R egistrar. Unle;;s otherwise ordere d, there shall be at least one clear day between service of the notice of appeal and the day of hearing. An appeal from the decis ion, orde r or direction of the Registrar shall be no stay of proceedings unless so ordered by a Judge or the Registrar. In our considered view, a party is required to file the notice befor e the judge within seven days. If he fails to do so, he should seek further time within which to file it. In the present appeal, we have seen that the notice was filed after the stipulated period, and no further time was sought by the plaintiff in the court below. We furth er n ote th at Mr. Chungu's arguments a r e not borne out by the record. What actu a lly occurred was that before the appeal cou ld be argued, it was abandoned by learned counsel for the p la intiff. J11 r -~ : r r We therefore do not see how Mr. Linyama could have raised the issue of time within which the appeal should have been filed by the plaintiff. We note that learned counsel argued that point when the matter came up for restoration of the abandoned appeal. That was the earliest opportunity he could do so, and it is incorrect to assert, as done by Mr. Chungu, that learned counsel stood by while the appeal was heard, and sought to raise the point for the first time in this court. We turn to consider the grounds of appeal. The gist of the first ground is that the learned judge proceeded to determine the appeal without hearing the appellant. The ruling in question states at the outset that the judge was considering an application for restoration of the abandoned appeal to the active cause list. He inde_ed set out to con~ider the premise qn which it was so_ught to restore the abandoned appeal, and expressed the views that on the persuasive case of DPP vs Jack Lwenga5 , the abandoned appeal could be restored. That is as far as the question of restoration went. The learned judge did not restore the appeal but held the view th at restoring the appeal was not the best way to expedite the d isposal of the case . It is not accurate therefore to argue that the learned trial judge proceeded to determine the appeal without hearing the appellant, nor is it correct to argue that the judge determined the appeal without leave. All the grounds are devoid of merit. We perceive that the appellant's grievance stems from the making of an Order whose effect was similar to an Order that could be obtained after the appeal J12 r .... : .... : .... : ,· r had been restored, and successfully argued. Be that as it may, it cannot be said the learned judge restored and considered the appeal. Although he was satisfied h e could restore the appeal, he did not do so, but proceeded to exercise what he considered his power to order that there be discovery and inspection of the documents objected to by the appellant. The question that arises 1s wheth er it was competent for him to do so. Our considered response to this question is that it was not competent to proceed in the manner done. It should be borne in mind that the powers conferred on a judge by Order III rule 2 High Court Rules, to make an interlocutory order which he considers necessary for doing justice, whether expressly asked for by the person entitled to the benefit of the order or not, are to be exercised subject I\ I\ " ,,,, " .to the rules. The import of this qualification is that wp.ere the rules proyide the ., procedure to b e followed, that procedure must be adh ered to as far as possible. In this instance, it was Order XXX 10(2) High Court Rules that was applicable. That order had to be complied with as a result and when it was desired to restore the abandoned appeal, the learned judge was obliged to consider the application, and render a decision on it. It was thus improper to abandon the application for restoration midstream, and veer into the exercise of jurisdiction that is subject to the rules, and make an Order that had th e effect of depriving the appellant an opportunity to be heard on the proposed appeal. Much as expeditious disposal of matters should be encouraged, this should not be at the expense of depriving a party J13 .. '-,. .. . . r r ,· opportunity to be heard on an application properly brought before the court. We agree that matters should be determined on merit, and this objective would still be achieved by determining interlocutory applications brought before a court. As for Article 118 of the Constitution, we adopt the Supreme Court's views in Access Bank Zambia Limited Group Five vs Zcon Business Joint Venture13• That Court said that the constitution never means to oust the obligations of litigants to comply with procedural imperatives as they seek justice from the courts. In our view, article 118 is not a recipe for chaos in our j udicial system. Most importantly, it does not do away with rules of procedure, as argued by learned counsel for the respondent. While ultimately justice m u st be done to the " " " " ,, ·p:~-rties within prnc~?ural confines ·af~,er due regard to ) hose rules, a ·p8:~ty is still requ ired to abide by the ru les. This makes for orderly disposal of matters before the courts. We are thu s unpersuaded by the arguments tendered on behalf of the respondent in that regard . One of Mr. Linyama's arguments is that the application to restore the a p peal was not adjudicated upon. Although this was not stated in the grounds of appeal, it was nonetheless advanced in argument, and learned counsel for the respondent had opportunity to respond to that argument. Order X rule 9(4) provides as follows: J14 ,. r r r r (4). The Court shall not allow an appeal on any ground not stated in the memorandum of appeal unless the respondent, including any person who in relation to s u ch ground should have been made a respondent, has had s ufficient opportunity of contesting the appeal on that ground. It is as a result competent to consider the ground advanced by lear ned counsel. As stated above, the learn ed tria l judge was supposed to hear and d etermine the a pplication to restore the a ppeal and thereafter hear it, as opposed to m aking an order whose effect was the same as the order sought to be opposed by learned counsel for the app ellant. The decision of the learn ed judge cannot stand. The appeal is allowed on that basis, and the order of the lea rned judge set aside . We remit this case to the high court for rehearing b efore another high " I\ a\ ,. I\ .court judge. Each. p a r ty will bear own costs. F. M. CHISANGA JUDGE PRESIDENT COURT OF APPEAL ............................ 6 ..... . . . . . . . . . . F. M. CHISHIMBA COURT OF APPEAL JUDGE D . L. COURT JlS ~ . ........... .