Hotel Macha-Leni Limited v Finance Bank Zambia Limited (NOM/34/2018) [2018] ZMCA 610 (11 October 2018)

IN THE COURT OF APPEAL OF ZAMBIA NOM/34/201 8 J1 HOLDEN AT LUSAKA (Civil Jurisdiction) BEWEEN: HOTEL MACHA-LEN! LIMITED APPELLANT AND FINANCE BANK ZAMBIA LIMITED RESPONDENT CORAM: Mulongoti, Sichinga and Ngulube. JJA On: 26t h September and 11 t h October, 2018 For the Appellant: Mr. M. Ha imbe, Messrs Sinkamba Legal Practitioners For the Respondent: No appearance R UL IN G NGULUBE, JA, delivered the Ruling of the Court Cases Referred to: 1. Zambia Telecommunications Company Limited V Liuwa SCZ Judgement No. 16 of 2002 2. Mwambazi V Morester Farms Limited (1 977) ZR 108 3. Twampane Mining vs Storti [2011} ZMSC 18 Legislation referred t o: 1. The Constitution of Zambia Chapter One of the Laws of Zambia. J2 2. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 By way of notice of motion, the appellant applied for an order to vary, discharge or reverse the Ruling delivered on the 30 th July, 2018 by a single judge sitting in Chambers. The notice of motion is supported by an affidavit filed on 10t h August, 2018. The backdrop leading up to the ruling subject of this notice of motion is that on 13th April, 2018 , the appellant filed a notice and memorandum of appeal under cause CAZ/O8/098/2018. The same were served on the respondent on 19th June 2018, 64 days from the day they were filed into court. Having filed the notice and memorandum, a day before the expiration of the 60 days, the appellant caused to be filed into court an application for consolidation of this matter and another matter under cause CAZ/08/ 100/2018 on 12th June 2018. On 25th June, 2018 the respondent filed a notice of motion to raise preliminary issues. The notice raised the following issues: 1. This appeal, and consequently the application for consolidation dated 12th June, 2018, be dismissed for the appellant's failure J3 to comply with Order 10 rule 3 (9) of the Court of Appeal Rules, 2016 as the appellant failed to serve the notice of appeal and memorandum of appeal on the respondent within the prescribed period of time. 2. That this appeal, and consequently the application for consolidation dated 12th June, 2018, be dismissed on the grounds that the appellant has failed to comply with Order 10 Rule 6 of the Court of Appeal Rules, 2016, as the appellant has failed to diligently prosecute this appeal by filing and serving the record of a ppeal and heads of argument within the prescribed period of time. After considering the affidavit evidence and skeleton arguments, the court came to the conclusion that the appellant was in breach of the rules of this Court as it s erved the notice of appeal and memorandum of appeal on the respondent 64 days late. The court found that the second preliminary issue had merit and accordingly dismissed the appeal with costs. The appellant being dissatisfied with the ruling has made an application to vary, discharge or r everse the said ruling. In the J4 affidavit in support of its application, the appellant has asked this court to exercise its discretion to vary, discharge and/ or reverse the ruling based on the following grounds: a) That there was an application to consolidate appeals that was filed within time which was pending determination and that the said application ought to be heard on the merits and not summarily dismissed or ignored as it is of merit and has prospects of succeeding. b) That in the event that the application to consolidate was granted, the appellant would be required to file and serve a fresh notice of appeal and memorandum of appeal reflecting combined grounds of appeal in which event the failure by the appellant to serve the respondent the initial notice of appeal and memorandum of appeal would have been overtaken by events. c) That the failure to serve on the respondent the initial notice of appeal and memorandum of appeal was curable and did not prejudice the respondent's ability to respond to the appeal as they were in fact served. JS d) That the notice of application for extension of time was filled within 21 days and was in the circumstances filed within time. It was further averred that the appellant did not sleep on its rights as it had taken a step in connection with prosecuting the appeal by filing the application to consolidate before the expiration of 60 days and that for this reason, the application ought to be heard and determined on the merits and not be summarily dismissed on a technicality. In opposing the application, the respondent filed an affidavit in opposition sworn by Jay Chisanga, Legal Counsel, for the respondent company. In the affidavit, it is averred that even though the appellant's application for consolidation was filed before the expiration of 60 days after filing its notice and memorandum of appeal, the said application did not stop the reckoning of time within which the appellant was obliged to file its record of appeal and heads of arguments. It is also averred that the absence of an order extending the time in which the appellant's record of appeal and heads of argument were to be filed, the application for consolidation could not be heard as it J6 was irregularly before Court and that the appellant's purported application for extension of time within which to file the record of appeal and heads of argument was an afterthought and lacked merit as it was opportunely made after the respondent's preliminary issues were raised regarding competence of the appeal. The deponent further avers that he believes that the appellant's application for extension was inept as the appellant failed to exhibit the said record of appeal and heads of argument to enable the Court weigh the prospects of the appeal succeeding. The deponent avers that he believes that the grounds given by the appellant to vary, discharge and/ or reverse the ruling dated 30th July, 2018 are misconceived as the learned single judge properly and clearly applied the existing law to the circumstances of the case with respect to the penalty for non-adherences to time limits set for the prosecution of appeals. It is further averred that the appellant has not provided sufficient reasons for serving the notice and memorandum of appeal on the respondent sixty-four (64) days after the lodging of the appeal which is compounded by the fact that the a ppellant has not made any J7 application b efore Court for the extension of time in which to serve the n otice and memorandum of appeal thus making the appellant's application frivolou s . The appellant filed an affidavit in reply to affidavit in opposition to notice of motion to vary, discharge or reverse the ruling on 21 st September, 2018. In the said affidavit the deponent merely r epeated the contents of the affidavit in support. The deponent however averred that while conceding that the appellant h as not provided reasons for serving the notice and memorandum of a ppeal on the respondent 64 days after lodgm ent, the said failure which is admittedly an irregularity was cured by the subsequent service which service to d a te has not b een s et aside for irregularity by the respondent. In its skeleton arguments and list of authorities filed on 10th August, 2 018 , the appellant has relied on Article 118 (2) of the Constitution to plead its cas e . The court h as also been referred to the cases of Zambia Telecommunications Company Limited V Liuwa 1 and Mwambazi V Morester Farms Limited2 in which it was h eld that- J8 "it is the practice in dealing with bona.fide interlocutory applications for the Courts to allow triable issues to come to Court despite the default of the parties." At the hearing of this matter the applicant's counsel submitted, that he would rely on the affidavit in support as well as heads of argument. We have seriously considered the notice of motion, affidavits by both parties as well as submissions by counsel for the appellant. We have also considered the Ruling of the Court. The question to b e determined is whether there is any valid reason for us to vary, discharge or reverse the ruling in question. The thrust of the appellant's arguments in support of its application is that the application for extension of time was filed within 21 days as required by Order 13 rule 3 (1) of the Court of Appeal Rules and that despite having served the notice and memorandum of appeal on the respondent 64 days late, the said service is still valid as the respondent has not filed any application challenging the defective service. J9 On the other hand, the respondent has argued that the filling of the application for consolidation before the expiration of 60 days after filling its notice and memorandum of appeal did not stop the reckoning of time within which the appellant was obliged to file the record of appeal and heads of argument. The respondent has also argued that without the order extending the time in which the appellant's record of appeal and heads of argument were to be filed, the application for consolidation could not be heard as it was irregularly before the court. This Court as well as the Supreme Court has made pronouncements on the need to adhere to the rules of the Court which are meant to assist courts to deliver justice and not to antagonize parties. In the case of Twampane Mining3 the Supreme Court clearly stated that those who choose to ignore rules of court do so at their own peril. A perusal of the notice of motion indicates that the appellants' defence for not adhering to the rules of this Court is that it filed an application for consolidation. The sequence of the events is that the appellant filed a notice of appeal first, waited for 59 days and then filed an application for consolidation. The service of the notice of JlO appeal on the respondent was done 64 days after filing the notice o appeal. For unknown r easons, the appellant also failed to file a notice of extension of time within which to file the record and heads of argument at the time it filed the application for consolida tion as it was clear that the appellant only h ad one day remaining within which to file the record and h eads of argument. As was rightly observed by the Court, an a pplication for consolidation does not stop time from running and neither does it s top the appellant from serving Court process to the other party within the prescribed time . The provisions of Order 10 Rule 3 (9) are couched in mandatory terms and must be adhered to. With respect to Article 118 (2) of the Constitution, we note that this article is not intended to do away with existing principles , laws and procedures , ins t ead it is intended to avoid a situation where a manifest injustice would be done by p aying unjustifia ble r egard to a technicality. This is not the cas e in this m atter before us . The facts h er e reveal that the conduct of the appellant is that of an unsenous litigant who desires to drag a matter in court unnecessarily. For the reasons given we do not see any justifiable l Jll reason to vary, discharge or r everse the Ruling of the Court. We find no merit in the Notice of Motion and it is accordingly dismissed. We make no orders for costs. -:r~ J. Z. MULONGTI COURT OF APPEAL JUDGE. P. C. M NGULUBE COURT OF APPEAL JUDGE.