Juldan Motors Limited and Anor v Nassa Ibrahim and Anor (NOM 23/2017) [2018] ZMCA 639 (27 February 2018)

.. IN THE COURT OF APPEAL OF ZAMBIA NOM 23/2017 HOLDEN AT NDOLA (Civil Jurisdiction) JULDAN MOTORS LIMITED JULYDANOBO AND NASSA IBRAHIM OLYPA SIBONGILE DANOBO : ""'il'o. W"~~ - .. ~ ... ~> 2 7 FEB 20'iJ . ..-...... - -· ·· ·· 1 ST APPELLANT 2ND APPELLANT 1 ST RESPONDENT 2ND RESPONDENT Coram: Makungu, Kondolo SC, and Majula JJA On the 27th day of February 2018 For the Appellants: Mr. H. H. Ndhlovu, SC of H. H. Ndhlovu & Company with Mr. J. Zimba of Makebi Zulu Advocates For the Respondents: Ms M. Mwiinga of Keith Mween:J:ba Advocates With Ms M. Kaminda of PNP Advocates RULING MAJULA JA, delivered the Ruling of the Court Cases referred to: 1. First Merchant Bank of Zambia Limited (In Liquidation), Attorney General v Al Shams Building Materials Limited, Jayesh Shah SCZ No 8 of 2009, (Unreported) 2. Inda-Zambia Bank Limited v Amazon Carriers Kimberly Aretha Anthosha Banines 2014/HPC/0141 3. Zambia Revenue Authority v Jayesh Shah (2001) ZR 60 Rl 4. Leopold Walford (Z) Limited v Unifreight (1985) ZR 203 5. Mwambazi v Morrester Farms Limited (1977) ZR 108 6. NFC Africa Mining Plc v Techno Zambia Limited (2009) ZR 237 7. Standard Chartered Bank v Wisdom Chanda and Another SCZ Judgment No. 18 of 2014 STATUTES 1. The Court of Appeal Act No 7 of 2016 - Section 9 (b) 2. The Court of Appeal Rules, Sl No. 65 of 2016 - Order 10 (2) (12) 3. The Commissioner for Oaths Act, Cap. 33 of the Laws of Zambia - Section 6 4. The Legal Practitioners Act, Cap 30, of the Laws of Zambia - Section 3 5. Practice Direction No 1 of 2002 This is a ruling on a Preliminary issue raised by the appellants with respect to a Notice of Motion to discharge a stay of execution of judgment pending the appeal. The brief background is that the appellants commenced an action in the High Court seeking, among other reliefs, a declaration that allotment of 12 ,500 shares in the 1st appellant company to the 2 nd respondent by the 1st respondent was fraudulent and therefore void ab initio. R2 • The respondents counter claimed, inter alia, for a declaration that they are bona fide directors and shareholders in the 1st appellant company and are legitimately holding 25,000,000 and 12,500 shares respectively. In a 50-paged judgment delivered by the court below, the judge found in favour of the respondents. Dissatisfied with the said judgment, the appellants have appealed to this court and applied for a stay of execution of the judgment pending appeal which was granted by a single judge of this court. The respondents, however, proceeded to issue a Notice of Motion to discharge the stay of execution of judgment before the full bench of this court pursuant to section 9(b) of the Court of Appeal Act No. 7 of 2016. Before the Notice of Motion could be heard the appellants' advocates raised preliminary issues whether this action was properly before court given that; 1. The Notice of Motion is not in its correct form as it does not set out the grounds upon which the court is to be moved and further it does not state the order to be made by the court. 2. The affidavit in support of the Notice of Motion to discharge the stay is defective as it is not dated and offends the rules of the Court. 3. The affidavit in support of the Notice of Motion contains extraneous matter in paragraph 7, 8, 9, 10, 11, 12, 13, 14 and 15. 4. The Notice of Motion at page 3 is incompetent as Messrs Keith Mweemba advocates and PNP advocates are not a legal Practitioner to indorse their names on Counsel's certificate of Notice of Motion as such. R3 • 5. The Counsel's Certificate of motion is only signed on one part when there are two Advocates on record. 6 . The Notice of Motion is not in its correct form as prescribed by the rules as the signatures of the Applicant and the master of the Appeal Court are not indorsed on the Notice of Motion. 7 . The Notice of motion is incompetently before this Honourable Court as it is anchored on the wrong provisions of the Law. The Appellants' Advocates filed into court an affidavit and skeleton arguments in support of the Notice of Intention to raise preliminary issues on 16th February 2018, upon which they substantially relied. At the hearing of the preliminary issue, Mr. Zimba learned counsel for the appellants also briefly made oral supplementary submissions in augmentation. The appellants' chief grievance under the 7 th preliminary issue is that the Notice of Motion is anchored on the wrong provision of the law and as such it is incompetently before this court. Mr. Zimba pointed out that the Notice of Motion was brought pursuant to section 9 (b) of the Court of Appeal Act No 7 of 2016, which according to counsel, is a wrong section for purposes of a Notice of Motion. He quoted Practice Direction 1 of 2002(5 1 which obligates litigants to indicate the Act and the Section or Order and Rule pursuant to which an application is brought before court. R4 Mr. Zimba also adverted to the case of First Merchant Bank of Zambia Limited (In Liquidation) Attorney General and Al Shams Building Materials Limited, Jayesh Shah1 where it was stated that the use of the word "shall" in the Practice Direction No 1 of 2002 means that it is a mandatory requirement, hence failure to comply is fatal to an application. The respondent filed an affidavit in opposition and skeleton arguments. The response to the argument under the 7 th preliminary issue by the respondents' counsel, Ms. Mwiinga, was rather brief. She submitted that the statutory provision which was used to bring the Notice of Motion is of wide usage and could be used to lodge an application by way of Notice of Motion to discharge a stay of execution. The further submissions on the other preliminary issues by Mr. Zimba were that the Notice of Motion is not in its correct form as it does not set out the grounds as well as the order which is sought from this court. Counsel for the appellant further vociferously argued that the Notice of Motion does not contain the signature of the appellant nor of the Master of the Court of Appeal. To buttress his argument on this point, Mr. Zimba drew the attention of the court to Order 10 rule 2 sub-rule 12 of the Court of Appeal Rules(2 1 which provides that a "Notice of Motion shall be substantially in form III, set out in the first schedule of the Court of Appeal Act". It was thus contended that the Notice of Motion in its present form is in breach of the mandatory rules of procedure. RS • As regards the 4 th and 5 th preliminary issues, Mr. Zimba observed that the Notice of Motion at page 3 is incompetent in that Messrs Keith Mweemba Advocates and PNP Advocates are not a legal practitioner to indorse their names on Counsel's Certificate of the Notice of Motion. He quoted Section 3 of the Legal Practitioners Actl4l on the definition of a practitioner and vehemently argued that the two firms are not a "legal practitioner" as defined in section 3 of the said Act. In answering those two issues raised, learned counsel for the respondent submitted that there is no legal requirement that all advocates seized with conduct of a matter should append their signatures on Counsel's Certificate in reaction to the Notice of Motion. Ms . Mwiinga stressed that this requirement can be met once any one counsel who is seized with conduct of the matter signs on the court process. She accordingly implored the court not to discharge the Motion on this ground. Counsel for the respondent then moved to the argument that the Notice of Motion should be substantially in Form III of the second schedule of the Court of Appeal Act (1l- Her response was that although Order 10 rule 2 sub-rule 12 provides that the notice shall be substantially in conformity with Form III, the practice is that counsel has leeway to alter the form for as long as it remains substantially similar to the prescribed form. R6 • r, In concluding his submissions Mr. Zimba attacked the affidavit in support of the Notice of Motion by pointing out that the jurat is not dated contrary to section 6 of the Commissioner for Oaths Act 131. Counsel for the appellant then referred the court to a litany of cases in which an undated affidavit was struck out. The cases include Indo Zambia Bank Limited v Amazon Carriers Kimberly Aretha Anthosha Banines f2J and Zambia Revenue Authority v Shah f3J- He further forcefully argued that the said affidavit m support also contains extraneous matter in paragraphs 7 to 15. Our attention was drawn to a book titled "Law of Affidavits" which provides at pages 114 to 116 that an affidavit must contain only facts and not extraneous matters. He beseeched this court to set aside the Notice of Motion for breach of the rules of the court. Ms. Mwiinga's response to the issues raised as regards the affidavit in support was that the cited paragraphs which are alleged to contain extraneous matter are in fact pertinent to the determination of the facts in issue. She further pointed out that the issue of the date in the jurat was met when the Commissioner for Oaths stamped the affidavit after appending his signature. She prayed that the Notice of Motion o be determined on its merits as per guidance of the Supreme Court in the cases of Zambia Revenue Authority vs R7 • • • Jayesh Shah f3J, Leopold Walford (Z) Limited vs Unifreight f4J, and Mwambazi vs Morrester Farms Limited f5J. She concluded her submissions by urging the court to dismiss the preliminary issues for lack of merit. We have paid careful consideration to the issues in limine before us as well as the arguments and authorities submitted by both parties. Although there are 7 issues raised, we first intend to deal with whether or not the Notice of Motion is competently before the court and depending on our determination we will proceed to deal with the other issues. Section 9 (b) of the Court of Appeal Act provides as follows; "A single Judge of the Court may exercise the power vested in the Court not involving the decision of an appeal, except that. (b) In civil matters, an order, direction on decision made or given in pursuance of powers conferred by this section may be varied, discharged or reversed by the Court" According to the Appellant, this provision does not speak of powers of a litigant to appeal a decision of a Judge. Further that the court must be properly moved R8 • f • m order that an application he heard and the Appellant has called m aid Practice Direction 1 of 2002 which provides that; "All applications brought to court should indicate the Act and the section or Order and Rule under which the application is brought, failure to which the application shall not be accepted for filing or entertained." It has been contended that this Practice direction uses the words 'should' and 'shall' which denote mandatory. Therefore, failure to comply with the same is fatal and the notice is incompetent and should be dismissed. Our appreciation of the Appellants' arguments relating to the 1s t and 6 th issue is whether the Notice of Motion is competent when it does not comply with the provisions of Order X Rule 2 (2) of the Court of Appeal Rules 2016 121- It is crystal clear to us that Order X rule 2 sub-rule 2 of the Court of Appeal Rules is couched in mandatory terms . We therefore agree with counsel for the respondent that the parties are given leeway to alter the form as long as it remains substantially similar to the prescribed form. Substantial conformity in our considered view connotes that it must be to a large extent similar to the prescribed form . R9 • We are alive to what was stated in the case of Zambia Revenue Authority v Jayesh Shah f3J that; "Cases should be decided on the basis of their merit or demerit as the case may be. and at the same time rules of Court must be followed. However, the effect of a breach will not always be fatal if the rule is merely regulatory or directory." It was observed in NFC Africa Mining Pie v Techno Zambia Mining 16 1 that; "The rules of Court are intended to assist in the proper and orderly administration of justice. And as such they must be strictly followed." In the instant case however we find that the Respondents have failed to comply with the procedural requirements as set out in Order X rule 2 sub-rule 2 because the motion before us reveals that the grounds upon which the court is to be moved are not stated as well as the Order which the applicant seeks to be made by the Court. There is therefore a significant departure from the given format. Pertaining to the 2 nd preliminary issue raised as regards the affidavit in support being defective on account of the jurat not being dated, we have noted that there is merely a date stamp on the affidavit. We were quite surprised by counsel for the respondent advancing the argument that this should suffice. The law is very clear that the jurat to an affidavit must state the date and place at which it was RlO • sworn. This law is located in the Commissioner for Oaths Actl 3l in particular section 6 which states: "Every Commissioner for Oaths before whom any oath or affirmation is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made." In this case this was not done. Breach of this provision, i.e. not dating the jurat is incurable and is fatal. The cases of Zambia Revenue Authority v Shah <3) and Indo-Zambia Bank Limited & Amazon Carriers Kimberly Aretha Anthosha Banines (2J fortify our position. In another illuminating case of Standard Chartered Bank v Wisdom Chanda and Another 17 ), the Supreme Court made the following observations regarding defective court documents: "We have stated in a plethora of cases that, any reason no matter how well articulated, cannot of its own, cure a defect. The party concerned must take out an appropriate application seeking to cure a defect; and that the court has no mandate to choose to ignore the defect and, of its own motion, proceed as if the defect never existed". The Supreme Court in the above judgement has therefore guided that defective documents cannot be cured by legal arguments. Rl 1 l Having found that section 6 of the Commissioner of Oaths Act is couched in mandatory terms, we have no mandate to choose to ignore the defects and proceed as if it never existed. The defect being incurable, we are left with no option but to dismiss the Motion. In view of this we find that it would be otiose to deal with the other preliminary issues raised. Costs follow the event to be taxed in default of agreement. C. K. MAKUNGU COURT OF APPEAL JUDGE ~ M. M. KONDOLO B. M. MAJULA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE R12