Sianga v Chilanga and Ors (Appeal 153 of 2004) [2007] ZMSC 161 (23 February 2007)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 153/2004 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: LT. CO. PROGRESS NAMENDA SIANGA Appellant AND COL. PAUL CHIKUSWE CHILANGA 1* Respondent S. M. SWETA (Sued in his capacity as Secretary to The Committee on Sale of Government Pool Houses And Flats) 2nd Respondent ATTORNEY GENERAL 3rd Respondent Coram: Lewanika, DC J, Chitengi, and Silomba, JJS. on 2nd August, 2006 and 23rd February, 2007. For the Appellants : Mr. R. Mainza of Messrs Mainza & Company For the 1st Respondent: Mr. Sakala of Messrs David Oliver Sakala 8s For the 2nd & 3rd Respondents: State Advocate Company JUDGMENT Chitengi, JS, delivered the judgment of the court. When we heard this appeal we allowed it, ordered retrial before another Judge and indicated that we shall give the reasons later. We now give those reasons. The filed record of appeal is not complete. The evidence of two witnesses for the Plaintiff is missing. The Court Reporters’ notes cannot be traced. The record of appeal was filed on 25th : J2: October, 2005. There is no hope of the Court Reporters’ notes being traced in time. We are, therefore, satisfied that any further adjournments to enable the Appellant file a complete record of appeal will not bear any fruit but will contribute to further delay of the proceedings in this case and operate prejudicially to the parties. In the event, we decided to allow the appeal and order a retrial before another Judge so that the evidence lost can be ellicited from the witnesses again. The appeal is accordingly allowed and the matter should be retried by another Judge. Costs will abide the event. D. M. LEWANIKA DEPUTY CHIEF JUSTICE peterchXtengi SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE