Kedaka Enterprises Holdings Company Limited v Swift Horizon Enterprises Limited (Appeal No. 281/2022; CAZ/08/411/2023) [2023] ZMCA 363 (21 March 2023)

IN THE COURT OF APPEAL FOR ZAMBIA Appeal No. 281/2022 AT THE LUSAKA DISTRICT REGISTRY HOLDEN AT LUSAKA CAZ/08/411/2023 ( Civil Jurisdiction) BETWEEN: KEDAKA ENTERPRISES HOLDINGS COMPANY LIMTED AND j Appellant SWIFT HORIZON ENTERPRISES LIMITED Respondent Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 21 st March 2023 For the Appellant: Mr. E. Kamundi of Messrs Japhet Zulu Advocates ,r- For the Respondent: Mr. C. Samechi & Mr. D. K. Siyandwa of Messrs Philsong and Partners RULING Legislation referred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 of 2016 Cases referred to: 2. Twampane Mining Co-operative Society Limited v E & M Storti Mining Limited (2011) Vol. 3 ZR 67 3. Timothy Kafa Nyirenda v Silver Spring Secondary School Limited and Grandview International Limited, CAZ/ 08/ 238/ 2020 Rl This is the Respondent's application to dismiss the appeal for want of jurisdiction and incompetence. It was brought by summons on 29 December 2022 on the grounds that: 1. The Appellant filed the record of appeal and heads of arguments in support of the appeal after the prescribed time frame of 60 days without obtaining leave of Court to file the same. 2. The Appellant served upon the Respondent the notice of appeal and the memorandum of appeal after the prescribed period of 14 days without obtaining leave of Court to serve the same out of time. 3. The Appellant filed a record of appeal which has not been prepared in the prescribed manner. The affidavit in support of the application was deposed to by Hamza Jabbie, the Chief Executive Officer of the Respondent. The gist of his evidence was that after the judgment of the lower Court was given in favour of the Respondent, the Appellant filed a notice of appeal and memorandum of appeal on 28 September 2022. The appeal papers were only served on the Respondent on 21 Octa ber 2022, contrary to the Rules of Court which require service of R2 process on a respondent within 14 days from date of filing. Therefore, the notice and memorandum of appeal were served outside the prescribed time, without leave of Court. It was also stated that the Appellant filed the record of appeal and heads of argument on 28 November 2022, which was outside the 60-day period prescribed for filing the appeal and it was filed without leave of Court. It was also stated that the record of appeal was not filed in accordance with the Rules of Court as it omits the entire evidence of Respondent from PWl to PW3 and the evidence of the Appellant witness, DWl. It was argued that the evidence was relevant as the trial Court relied upon these testimonies to make her findings, which are the subject of this appeal. In addition, it was stated that the Appellant's entire application for stay of execution of judgment pending appeal, including the Respondent's opposition was omitted, which reveals all the details of whether the appeal has any prospects of success. Further, the ruling of the Court below dismissing the application for a stay of execution, which contains important authorities for this Court in considering the Appeal. In this light, the Respondent urged the Court to dismiss the appeal for want of jurisdiction, incompetence, and failing to comply with the Rules of Court. R3 In the affidavit in opposition of Sunday Musonda dated 23 January 2023 , the Appellant contended that the failure to serve the notice and memorandum of appeal within the 14 days prescribed by the Rules was not fatal as there is no undue prejudice to the Respondents to warrant dismissal of the entire appeal. As regards the filing of the record of appeal and heads of arguments outside the 60-day period, the Appellant stated that the last day fell on a Saturday and the next working day, was Monday, 28 November 2022 when the documents were filed. On the question of the documents being omitted from the record of appeal, the deponent stated that not all documents were required to be included in the record of appeal as implied by the Respondent. The Appellant also added that the documents relating to the application for a stay of execution and the Ruling thereto were not required in the record as they were not crucial to the determination of the appeal before Court. It was further argued that all the mandatory documents were included in the record. That in any event, the law permitted a Respondent to file a supplementary record of appeal if it felt it so necessary. In the affidavit in reply of 24 January 2023, the Respondent repeated that the provision requiring service of the appeal R4 documents was couched in mandatory terms and not optional; that the failure to serve the notice and m emorandum of appeal within the 14 days prescribed under the rules was therefore fatal and that it did prejudice the Respondent. It was also stated that the Appellant ought to have sought an extension of time upon realizing that it had run out of time but it did not. The application was heard on 7 February 2023. Both counsel for the parties were in attendance and relied on their respective affidavits and arguments before Court. I have carefully considered the affidavit evidence and the arguments of the parties. I am grateful to counsel for the arguments but will not reproduced the same. The application has been brought pursuant to Order X Rules 3(9), (6), (7) and ( 17)(2), Order X Rule 9(5) [a,g,ij, l] and (6), Order XIII Rule 3(6) of the Court of Appeal Rules. Where I deem it necessary, I will refer to these provisions in the later part of this ruling. By this application, the Respondent asserts that the appeal ought to be dismissed for want of jurisdiction, incompetence, and failure to comply with the Rules of this Court. The Respondent's contention is that the appeal is irregular as the record of appeal and heads of arguments were filed 1 day outside the last date RS within which they were required to be filed pursuant to Order X Rule 6(a) of the Court of Appeal Rules. The aforesaid provision provides that: "6. Subject to an extension of time and to an order made under Order XIII Rule 3, the Appellant shall within sixty days after filing a notice of appeal - (a) Lodge the appeal by filing in the Registry twenty-one hard copies of the record of appeal together with heads of argument and an electronic copy of the record of appeal. .. " As regards the contention that the record of appeal and head of arguments were filed outside the prescribed 60-day period, a close review of the dates of the documents shows that the notice and memorandum of appeal were filed on 28 September 2022. The sixth day within which the filing of the record of appeal and heads of argument was supposed to have been done, fell on a Sunday, 27 November 2022, but the Appellants filed the record of appeal and heads of arguments on the next working day, being Monday, 28 November 2022. I am of the view that the record of appeal and heads of argument were not out of time and were properly filed as the last day prescribed for complying falls on a Sunday. R6 Therefore, the Appellant cannot be faulted for filing the record on Monday, 28 November 2022. This conclusion is anchored on Section 35 (b) and (c) of the Interpretation and General Provisions Act, which provide that: "(b) If the last day of the period is Sunday or a public holiday (which days are in this section referred to as 'excluded days') the period shall include the next day following day, not being an excluded day; (c) Where any act or proceeding is directed or allowed to be done or taken on a certain day, then, if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day; ... " Given the for egoing, I repeat that the Appellant was well within time to file the record of appeal and heads of arguments on the day following next after Su nday, which is an exclu ded day. By virtue of the aforesaid provision the Interpretations Act, the 28 November 2022 on which same were filed into cou rt form part of the 6 0 days prescribed, within which the same were required to be filed. R7 I now turn to address the next issue which also revolves around compliance to times frames set ou t in out rules . The Respondent has advanced that the notice of appeal was served on it 9 days after the expiration of the 14-day period prescribed with Order X Rule 3(9) of the Court of Appeal Rules. The aforesaid provision provides that: "3(9) A notice of appeal, together with the memorandum of appeal, shall be lodged and served, within a period of fourteen days, on all parties directly affected by the appeal or on their practitioner. It is trite th at in accordance with the provisions of Order X Rule 3(9) of the Court of Appeal Rules, the notice and memorandum of appeal are to be lodged and served on the parties affected by the appeal within a 14-day period. In this case, the Appellant duly filed the notice and memorandum within the prescribed period but delayed in serving the requisite documents upon the Respondent and only did so 9 days after the deadline for service. From the foregoing, it is clear that the Appellant defied the provisions of Order X Rule 3(9) of the Court of Appeal Rules by failing to serve the Respondent with the Notice of Ap peal and Memorandum of Appeal as required of it under the law. R8 The Courts in this jurisdiction have consistently frowned upon the conduct of litigants who act in defiance and breach of the rules and procedures of Court without just cause. In the case of Twampane Mining Co-operative Society Limited v E & M Storti Mining Limited, it was held that: "Those who choose to ignore rules of Court, do so at their own peril. .. and that a party is obliged to comply with Court procedure more so in a case where rules are mandatory." This Court has equally dismissed appeals for failure to comply with provisions of Order X Rule 3(9) of the Court of Appeal Rules as was the position in the in the case of Timothy Kafa Nyirenda v Silver Spring Secondary School Limited and Grandview International Limited. Further, the Respondent also argued that the Record of Appeal was equally incompetent as it omitted key documents of evidence from proceedings in the Court below hence the basis for applying for the dismissal of the appeal before this Court. I am also inclined to agree with the Respondent's argument on this front. R9 Given that the appeal herein attempts to contest the findings of fact in the lower Court, it is thus illogical and contrary to the provision of Order X Rule 9( 1) of the Court of Appeal Rules for the Appellant to have omitted copies of proceedings, particularly the evidence of PW 1, PW2 and PW3 which evidence consists of facts upon which this Court ought to ordinarily have recourse to, in determining the appeal before it. Given the aforesaid, I am of the view that the failure by the Appellant to comply with the mandatory provisions of Order X Rule 3(9) of the Court of Appeal Rules merits dismissal of its appeal. The Record of Appeal is also irregularly filed on account of the determination in the preceding paragraph. For the said reasons , the appeal before me stands dismissed. Costs in the cause, to be taxed in default of agreement. Dated at Lusaka this 21 st day of March 2023. ~ N . A. Sharpe-Phiri COURT OF APPEAL JUDGE r.~ RlO