July Danobo T/A Juldan Motors v Chimsoro Farms Ltd (SCZ Judgement 15 of 2009) [2009] ZMSC 166 (14 May 2009)

J1 Supreme Court Judgment No. 15 of 2009 (260) IN THE SUPREME COURT OF ZAMBIA Appeal No. 65/2007 HOLDEN AT LUSAKA (Civil Appellate Jurisdiction) BETWEEN: JULY DANOBO T/A JULDAN MOTORS APPELLANT AND CHIMSORO FARMS LIMITED RESPONDENT Coram: Mambilima, DCJ, Silomba, JS., Chibomba, Ag, JS. On 25th September 2008 and on 14th May 2009. For the Appellant: For the Respondent: Mr. R. M. Mainza of R. M. Mainza and Company. Mr. V. B. Malambo S. C., and Mr. Sianondo both of Malambo and Company. JUDGMENT Chibomba, Ag. JS., Delivered the Judgment Of the Court. LEGISLATION REFERRED TO: (1) The Supreme Court Rules, Chapter 25 of the Laws of Zambia. This is the Appellant’s application for Leave to file Supplementary Record of Appeal. For the reasons that will become clear hereunder, it is imperative that we restate the background to this application. This is that when this matter came for hearing of the Appeal, the learned Counsel for the Appellant, Mr. Mainza informed the court that at the last sitting ir September 2008, the appeal could not be heard on ground that the Record of Appeal was incomplete as the Transcript of Proceedings of the Court below J 2 (261) was missing from the file in the Court below. Mr. Mainza informed the court that he had written to the Assistant Registrar and copied the letter to the Master of the Supreme Court requesting for the Transcript of Proceedings and that he had also made frantic effort to obtain the Transcript but that to date, he has only been availed a Transcript which is incomplete as the evidence of some of the witnesses who testified in the court below was reported to be missing from the record. Mr. Mainza informed the Court that he had since compiled a Supplementary Record of whatever was availed to him but that unfortunately, the document was so incomplete that it would not be possible to make any meaningful sense out of it. He also informed the court that his attempt to obtain the Transcript from the Court Reporters was fruitless ana that unfortunately, the trial Court only made reference to one witness in respect of the Appellant’s witnesses in his Judgment. That as a result, he had been put in an awkward position and was accordingly seeking the court’s direction on how to proceed. On the other hand, the learned Counsel for the Respondent, Mr. Malambo, SC, objected to the manner in which the Appellant was prosecuting the Appeal stating that the same left much to be desired. Mr. Malambo, SC, informed the court that the record will show that the Respondent became aware of this appeal at the time when Appellant applied J 3 (262) for Leave to File the Appeal Out of Time as the Notice to appeal was not served on the Respondent or its Advocates. Further that the Notice of Address of Service which is at page 6 of the Record shows that it was filed by the learned Counsel for the Appellant when this ought to have been filed by the Respondent’s Advocates. Mr. Malambo SC, submitted that this was an inconsiderate step taken by the Appellant’s Counsel. Mr. Malambo, SC, submitted that the record will also show that the Appellant applied before a Single Judge of this court for Leave to Lodge the Record of Appeal Out of Time and that the learned Counsel for the th Appellant swore the Affidavit in Support of that application and that on 14 May 2007, the Single Judge of this Court granted Leave to Lodge the Record of Appeal Out of Time. Mr. Malambo drew our attention to paragraphs 8 and 9 of the said Affidavit which state that and we quote:- “8. Further upon concluding trials in the Election Petitions I made an effort to compile the Record of Appeal but I was unable to complete the exercise due to delay on the part of the High Court Assistant Registrar tc avail me with the Record of Proceedings in the Court below. 9. That I have since obtained the Record of Proceedings from the Assistant Registrar and compiled the Record of Appeal but I am unable to lodge the same into Court because the Sixty (60) days grace period has since expired. ” Mr. Malambo contended that the issue of incompleteness of the record J 4 (263) of the Court below was not raised before the Single Judge and that the Single Judge granted the Order sought and ordered that the Record of Appeal be filed within 14 days from 14th May 2007. That however, the Court will note that the Record does not have the Ruling of the Single Judge of this Court and the Record of Proceedings of the Court below over which the learned Counsel for the Appellant sought Leave to file. Mr. Malambo, SC, submitted that the learned Judge below referred to the witnesses by name in his Judgment and that therefore, the Transcript of Proceedings was available to him but that what defies logic is how the Assistant Registrar could have certified the record without the Transcript as it does not fulfill the requirements of Rule 58 of the Supreme Court Rules (SCR), Chapter 25 of the Laws of Zambia. Further that Rule 68 of the SCR spells out the consequences for failure to draw up the Record of Appeal in the right manner as the appeal may be dismissed. Rule 68(1) and (2) of the SCR provides that and we quote:- “68. (1) The Court or a Judge thereof may at any time allow amendment of any Notice of Appeal, or Respondent’s notice, or Memorandum of Appeal, or other part of the Record of Appeal on such terms as the Court or such Judge thinks fit, and may likewise make any such amendments of its own motion. (2) If the Record of Appeal is not drawn-up in the prescribed manner, the appeal, may be dismissed. J 5 (264) Mr. Malambo, SC, submitted further that the letters referred to by the learned Counsel for the Appellant were written in 2008 and that this was after the appeal had been set down for trial and show that Counsel had obviously forgotten that he had sworn to having obtained the record. That therefore, the learned Judge of the Court below cannot be faulted for the incompleteness of the record and that in terms of Rule 68(2), the appeal should be dismissed. In Reply, Mr. Mainza stated that he was having difficulty in distinguishing between a “Record of Proceedings” and a Transcript of Proceedings. He however stated that he had indicated in his Affidavit as submitted by the learned State Counsel that he had received the Record of Proceedings and that on the basis of what he had said, the Single Judge of the Supreme Court granted Leave to File the Record of Appeal Out of Time. He said at the time, he did not have the Transcript and that in his Affidavit, he did not allude to the fact that he saw what was in the record filed on 28th May 2008. Mr. Mainza said the Record of Proceedings as set out, has the Writ, Statement of Claim and the Defence but that the Transcript was missing and that what he was certifying was the Record that he had compiled. J 6 (265) Mr. Mainza stated further that it is not unusual to file a Supplementary Record of Appeal and that he had since compiled a Supplementary Record, incomplete, as it was, but that his attempt to file the same was refused by the Registry. Mr. Mainza said he was accordingly applying for Leave to File the Supplementary Record of Appeal, “incomplete”, as it was, and invited the Court to render judgment or direct the parties to proceed and argue the case on the available evidence. Since Mr. Mainza, in his Reply, had asked us to grant Leave to File the “incomplete” Supplementary Record of Appeal, we had no choice but to ask Mr. Malambo, SC, to reply to this particular application. He submitted that procedurary, failure to file a proper record is visited by consequences under Rule 68(2) of the SCR and that the issue of the record was a subject ol an application before a Single Judge of this Court and that it was stated that the Record of Appeal was available and would be filed within 14 days and in default, the appeal would be dismissed. However, that by that date, the Record of Appeal had not been filed. Mr. Malambo, SC, submitted that there are circumstances when a Supplementary Record of Appeal can be filed and that the circumstances do not include the one canvassed by the learned Counsel for the Appellant and that the learned Counsel for the Appellant cannot seek Leave to file the Supplementary Record of Appeal over documents that he had before he J 7 (266) . sought Leave to File the Record of Appeal Out of Time. Further that the Record of Appeal comprises the documents that a lawyer has in his office and that the Supplementary Record of Appeal does not include the documents that Counsel has in his office. That therefore there is no basis for allowing the learned Counsel for the Appellant to file the Supplementary Record of Appeal. We have considered the application by the learned Counsel for the Appellant and the Submissions by the learned State Counsel for the Respondent. We wish to state that Rule 58 of the SCR prescribes what the Record of Appeal should contain. Rule 58(1) states clearly that:- “The Record of Appeal shall be prepared in accordance with Rule 10 and shall include a Memorandum of Appeal and copies of the Proceedings in the High Court and in any court below. ” Where the Record of Appeal is not prepared in accordance with the manner prescribed under Rule 58, Rule 68(2) provides for sanctions. Rule 68(2) states clearly that:- “If the Record of Appeal is not drawn up in the prescribed manner, the appeal, may be dismissed. ” The record before us is incomplete as it does not have the proceedings of the trial court which fact the learned Counsel for the Appellant conceded. The Supplementary Record of Appeal over which Leave is sought is also said to be incomplete as the proceedings of the court below are not there. J 8 (267) The explanation for the incompleteness of the Record was that the learned Counsel for the Appellant has been unable to obtain the record of the proceedings of the Court below as his effort to obtain the same from either the Registrar of the High Court, the Master of the Supreme Court and indeed, the Court Reporters proved fruitless. The Record however shows that on 20th April 2007, the Appellant applied before a Single Judge of this Court, for Leave to file the Record of Appeal Out of Time pursuant to Rule 48(1) of the SCR. The learned Counsel for the Appellant, Mr. Mainza, deposed to the Affidavit in Support of that application stating on Oath in paragraphs 7, 8 and 9 thereof that:- "7 . That I was unable to compile the Record of Appeal within the stipulated period mainly due to the fact that from 9th January, 2007 to 6th March, 2007 I was engaged in Election Petition trials involving Simasiku Namakando I s Eileen 2006/HP/EP/0002 and Stephen Mashata Manjata J's Josephine Lint at a 2006/HP/EP/0005 which by law were supposed to be completed within 180 days from the date of the filing of the petition. 8. Further upon concluding trials in the Election Petitions I made an effort to compile the Record of Appeal but I was unable to complete the exercise due to delay on the part of the High Court Assistant Registrar to avail me with the Record of Proceedings in the Court below. 9. That I have since obtained the Record of Proceedings from the Assistant Registrar and compiled the Record of Appeal but I am unable to lodge the same into Court because the sixty (60) days grace period has since expired. ” J 9 (268) As can be seen from paragraph 9 of the said Affidavit, Mr. Mainza swore and indicated that he had since obtained the Record of Proceedings from the Assistant Registrar and compiled the Record of Appeal but that he was unable to lodge it as the 60 days grace period under the Rules of this Court for lodging Records of Appeal had expired. Mr. Mainza then went before a Single Judge of this Court under Cause Number SCZ/8/29/2007, and on 14th May 2007, the Single Judge of this Court granted Leave to file the Record of Appeal within 14 days in default thereof the appeal would be dismissed. Mr. Mainza has however informed us that he has not obtained the Record of Proceedings of the Court below that he swore to have obtained in his Affidavit as he told us that the evidence of some of the witnesses who testified at trial is missing from the Record despite having indicated that he had since obtained the Record of Proceedings from the Assistant Registrar. Mr. Mainza did not however indicate before the Single Judge of this Court that he did not have the proceedings of the lower Court as what he stated was that he had since obtained the Record of Proceedings from the Assistant Registrar. Mr. Mainza agreed before us that it was on this basis that the Single Judge of this Court granted Leave to file the Record of Appeal Out of Time. The Record also shows that on 28th May 2007, the learned Counsel for Appellant filed the Record of Appeal, which as afore-stated, was still J10 (269) incomplete as the Record of Proceedings of the Court below was missing. Strangely enough, the Registrar of the High Court certified the Record. In addition, the learned Counsel for the Applicant, Mr. Mainza also certified that he had personally compiled the Record of Appeal in accordance with the Rules of this Court when in fact, the Record of Proceedings of the Court below, over which he had obtained Leave to File Out of Time, was missing from the record that he compiled. It is obvious to us that the learned Counsel for the Appellant was not telling the truth when he appeared before the Single Judge of this Court before whom he stated as deposed in his Affidavit that he had obtained the Record of Proceedings of the Court below. He, as a result, obtained Leave to file the Record of Appeal which he knew was incomplete at that stage without disclosing that he did not in fact have the Record of Proceedings of the Court below. When this matter came before us for hearing of the appeal, Mr. Mainza decided to seek Leave to file his “incomplete” Record. We can only agree with what'the learned State Counsel, Mr. Malambo, stated and this is that at the time the learned Counsel for the Appellant applied before the Single Judge for Leave to file the Record of Appeal Out of Time, he already had the documents that he now seeks Leave to file as these are the documents that a lawyer has in his office. We also agree that since the J11 (270) Supplementary Record of Appeal sought to be filed contains documents that Counsel had in his office, there is no basis for allowing this application. The learned Counsel for the Appellant also sought clarification from us as he was having difficulty in distinguishing between a “record of proceedings” and a “transcript of proceedings”, a matter that Counsel very well knows is one and the same thing. As afore-stated, failure to compile the Record of Appeal in the prescribed manner is visited by sanctions under Rule 68(2) of the RSC. The sanction is that the Appeal may be dismissed. In this case, there is no doubt and as admitted by the learned Counsel for the Appellant that the Record of Appeal is incomplete as the Record of Proceedings of the Court below is missing. It follows that the Record of Appeal has not been prepared in the manner prescribed by the Rules of this Court. We therefore invoke the provision of Rule 68(2) and dismiss this appeal. Our resolve in dismissing this appeal is further cemented by the Order of the Single Judge of this Court who on granting Leave to file the Record of Appeal Out of Time, ordered that the same shall be filed within 14 days and that in default thereof, the appeal shall be dismissed. The record shows that an incomplete record was filed as stated above. In addition, we would be failing in our duty if we do not comment on the manner the learned Counsel for the Appellant, Mr. Mainza has sought to J12 (271) prosecute this appeal. Counsel has exhibited serious dereliction of duty as he has not been telling the truth. Counsel must have known at the time, when he went before a Single Judge of this Court that the Record of Appeal was incomplete as he did not have the Transcript of Proceedings. However, in his Affidavit, he indicated on Oath that he had since obtained the complete Record of Proceedings. A complete record of the lower Court includes a Transcript of Proceedings of the lower Court. Counsel was indeed economical on truth. He was granted 14 days grace period by the Single Judge of this Court to file the Record of Appeal. However, Counsel still appeared before us with an incomplete Record and sought Leave from us to file his still “incomplete” Record. We are also taken aback by the learned Counsel’s conduct of filing the Notice of Address of Service on behalf of the Respondent and/or their Counsel when this ought to have been filed by the Respondent’s Advocates. We fail to understand why Counsel did this. We accordingly unreservedly condemn the deplorable and wanton manner the learned Counsel for the Appellant has sought to prosecute this Appeal as Counsel has exhibited an unwarranted attitude of not telling the truth. Counsel has also attempted to shift blame on the trial court when it is obvious that the trial court had the Record of Proceedings at the time the judgment was delivered as the trial court referred to the witnesses by name. J13 (272) Accordingly, this Appeal is dismissed pursuant to Rule 68(2) of the SCR for failure to compile the Record of Appeal in the prescribed manner and on ground of the deplorable manner in which the learned Counsel for the Appellant, Mr. Mainza has sought to prosecute this appeal. If at all the Appellants will be disadvantaged or prejudiced in any way by the stand we have taken in dismissing this Appeal, then they must seek recourse from their Counsel who did not handle their Appeal properly. This Appeal is dismissed with Costs of the appeal to the Respondent to be borne by Counsel for the Appellant. I. C. Mambilima DEPUTY CHIEF JUSTICE S. S. Silomba SUPREME COURT JUDGE H. Chibomba ACTING JUDGE OF SUPREME COURT