Lumwana Mining Company Limited v Hansa Limited (Application 80/2024) [2025] ZMCA 55 (27 March 2025)

IN THE COURT OF APPEAL OF ~g~~~ HOLDEN AT LUSAKA (Civil Jurisdiction) / BETWEEN ~ 2 7 MAR 2025 I r.1 TR' qr,, LUMWANA MINING COMPANY LIMITED APPELLANT AND HANSA LIMITED RESPONDENT CORAM: Siavwapa JP, Chishimba and Patel, JJA On 25th and 27th March 2025 For the Appellant: Mr. Sidney Chsisen ga of Mes srs Corpu s Legal Practitioner s For the Resp onden t : Mr. J . Sangwa (S. C) and Mr. S . D Banda and Ms. N. Mwila of Messrs Simeza, Sangwa & Associates Y. Yosa of Messr s May & Company RULING CHISHIMBA JA, delivered the Ruling of Court. CASES REFERRED TO: 1. Access Bank Zambia Limited v Group five/ZCON Business Park Joint Venture SCZ/8/52/2014 2. July Danobo (T/A Jaldan Motors) v Chimsoro Farms Limited 15/2009 (SCZ) 3 . Jason Yumba and 22 Others v Luanshya Municipal Council Appeal No. 5 of2015 4 . NFC Mining PLC v Techpro Zambia Limited (2009) ZR 236 5 . Western Co-Op Haulage Ltd and Anor v Zambia Seed Company Ltd (Appeal No. 176/2021) 6. Chipawa Sakulanda v Ramji Menand Kh.u __ r Otlters SCZ Appeal No. 113 of 2006 \,'>-' co0R 21 MAR 202s --RC. Cl'-T• · R2 7. Phillip Mutantika and Another v Kenneth Chipungu SCZ Appeal No 13 of2014 8 . Mandona Freeboy v Joshua Nkandu SCZ Appeal No 6 of 2017 9 . Henry Sampa v Abhishek VijaykumarvPatel SCZ/8/03/2022 10. Katemba Kahyata v ZM & P (BVI) Holdings Limited CAZ/08/489/2021 11. JCN Holdings Limited v Development Bank of Zambia Limited SCZ No. 22 of2014 12. Nico Coutlis Transport Limited v Buks Haulage Limited CAZ No. 65 of 13. Solomon Laban Jumbe Ngwenya and 8 Others v Hope Chanda Appeal No 001 / 2009 14. Antonio Ventriglia and Another v Finsbury Limited SCZ Appeal No. 02/2019 15. Zambia Revenue Authority v Professional Insurance Corporation Zambia SCZ Appeal No. 34 of 2017. 16. Jonat han Van Blerk v Attorney General and Others Appeal No. 338/2023 ! 7 . Diego Casilli v Access Bank (Zambia) Limited and Others Appeal No. 259 · of 2022. 18. Rachel Saka v Hilda Chomba CAZ/08/059/2017 LEGISLATION REFERRED AND CITED: .. 1. The Court of Appeal Act statutory instrument No 65 of 2016 2 . Black' s Law Dictionary 6 th Edition at page 848 3 . The Interpretation and General Provisions Act Chapter 2 of the laws of 1 Zambia 4 . The lands Act Chapter 184 of laws of Zambia 5 . Artkins Forms, 2 n d Edition Volume 5 1992 issue 6. The Constitution of Zambia Chapter 1 of the laws of Zambia 1.0 INTRODUCTION 1.1 The respondent filed a notice to raise a preliminary objection on 20th September 2024, pursu ant to Order 13 Rule 5 (1) of the Court of Appeal Rules, Statutory Instrument No. 65 of 2016 · · (CAR). The respondent seeks dismissal of the appeal on ground that all eigh t gr ou nds of a ppeal offend th e provision s of Order 10 Rule 9 (2) of the Court of Appeal Rules in that they: (a)Allege both error of law and fact; R3 (b) Do not disclose the point of law and fact alleged to have been_---··--·· wrongly decided by the Court below; and (c) Contain arguments/ and narratives 2.0 AFFIDAVIT IN OPPOSITION 2.1 The appellant opposed the application to raise a preliminary objection by filing an affidavit in opposition, deposed to by its advocate. Learned Counsel stated that the heads of argument were filed on 22nd April 2024. They served on the respondent on 23rd April 2024. The respondent subsequently filed its heads of argument on 25th July 2024 . The respondent had fourteen days within which to file preliminary objection on or before the 8 th May 2024. 2 .2 Counsel states that the respondent did not apply for an extension of time to file the preliminary objection before the expiry of the fourteen days. Instead, on 6 th September 2024, the respondent made an ex-parte application for an extension of time to file the preliminary objection. On 7 th September 2024, a single Judge of this Court granted the order. 2 .3 According to learned counsel, the ex-parte order was granted in R4 error post facto b ecause the application for extension of tim e was made five m onths from date the respondent was served with the heads of argument. Therefore, the respondent should not have applied for an extension of time but should have sought leave to file the preliminary objection out of time. Counsel states that to date, the respondent has not sought leave to file the preliminary objection out of time. Therefore, the preliminary objection is improperly before this Court. Consequently, that this Court has no jurisdiction to entertain the preliminary objection. 2.4 Notwithstanding the aforementioned, the appellant deposed that the preliminary objection had no merit and did not reveal ,• any valid reasons warranting the dismissal of the grounds of appeal. 3 .0 AFFIDAVIT IN OPPOSITION REPLY 3 . 1 In the affidavit in reply, the Learned State Counsel Mr. John Sangwa deposed that the respondent filed a combined application for leave to apply for extension of time in which to file the Notice of preliminary objection to the appeal and .. Extension of time in which to file the preliminary objection to appeal. RS Th e application was heard on 13th September 2024 and an order for leave as sought above was granted, leading of the filing of the Notice of preliminary objection to the appeal on 20th September 2024. 4 .0 HEADS OF ARGUMENTS IN SUPPORT 4.1 The respondent submits that the preliminary objection is founded on the premise that the grounds off end Order 10 Rule 9 (2 ) of the CAR. Detailed arguments in support and reply were filed by the Learned State Counsel, which we have taken note of and summarised herein under. 4 .2 On the effect of non-compliance with Order 10 Rule 9(2) of the CAR and the failure to comply with the rules of Court, several ...j authorities were cited namely; Access Bank Zambia Limited v Group Five/ZCON Business Park Joint Venture111, July Danobo (T / A Juldan Motors) v Chimsoro Farms Limitedl21, Jason Yumba and 22 Others v Luanshya Municipal Council131 and NFC Mining PLC v Tech pro Zambia Limited141. The effect being dismissal of appeal on account of failure to comply with the rules . In respect of how grounds of appeal must be couched, the case of Western Co-op Haulage Limited v Zambia Seed RG Company151 was cited in which the ground of appeal was not concise and contained legal arguments and narrative without specifying the points of law appealed against. 4.3 The respondent submitted that the appellant disregarded the rules of Court by improperly framing the grounds of appeal. Instead of distinguishing between a misdirection on a point of law and a point of fact , the appellant combined both into a single ground of appeal. That where it is alleged that a certain point of law was wrongly decided, it should be a separate ground of appeal from where it is alleged that the error is on a point of l . fact. 4.4 We were referred to Order 10 Rule 9 (2) CAR which states in part that "the grounds of objection to the judgment appealed against shall specify the points of law or fact which are alleged to have been wrongly decided ..... ". Reference was made to section 4 (4) of the Interpretation and General Provisions Act Chapter 2 of the Laws of Zambia. The position of the respondent is that the use of the word "or'' is disjunctive and means something separate or distinct. Reference was made to the case of John Chipawa Sakulanda v Ramji Menand K.huti R7 and Others161 where the Supreme Court held that the use of the word "or" after each subsection in section 3 (3) of the Lands Act provides for a particular circumstance or category and must be read disjunctively. Therefore, a misdirection on a point of law and a misdirection on a facts are not the same because they constitute two separate grounds of appeal. 4 .5 The respondent further submitted that the use of the word "shall" in Order 10 Rule 9 (2) CAR connotes a mandatory directory. The case of Phillip Mutantika and Another v Ken neth Chipungul71 was cited as authority in support of the submission that a provision using shall is mandatory. 4.6 The respondent argued that the appellant, in framing its eight grounds of appeal, ignored the word "or", which is inconsistent with the mandatory provisions of Order 10 Rule 9 (2) CAR. This was sufficient grounds for the Court to dismiss the entire appeal. 4.7 In the second instance, the respondent contends that although each ground of appeal alleges a misdirection on a point of law and fact, the grounds of appeal do not disclose the alleged point of law or fact alleged to have been wrongly decided by the trial Court. ,.1 R8 That both the Cou rt and the respondent should be able to clearly identify the grounds of appeal without having to infer the specific allegations within each ground. We were referred to the case of Man dona Free boy v Joshua Nkandu18l, where the Supreme Court found a ground of appeal to b e incompetent for not disclosing the fact or error complained of. In the said judgment, the Supreme Court made reference to Order 58 of the Supreme Court Rules, which is identical to Order 10 Rule 9 (2) CAR, mandating a ground of appeal to be discernible, clear, and straight to the point. According to the respondent, ground one does not disclose the issue of law and fact wrongly decided by the Court. 4.8 The respondent also argues that the grou nds of appeal offend Order 10 Rule 9 (2) CAR by containing narratives and arguments. According to Black's Law Dictionary, narrative means "a written account of connected events" and "argument" means "a statement that attempts to persuade; especially the remarks of counsel in analysing and pointing out repudiating a desired inference for the assistance of a decision-maker." Learned State Counsel further argued that grounds of appeal must be devoid of accounts or explanations R9 of the points of law or fact that the appellant believes the Court wrongly decided. This is because the parties to the appeal may have their own account of what the Court may have wrongly said or decided. 4.9 The respondent submitted that grounds one, two, three, four, six, seven, and eight contain arguments. Learned State Counsel also highlighted that ground five is not concise and contains narratives. That it is simply an account of what was wrongly decided by the Court below. We were ref erred to our decision of Western Co-Op Haulage Ltd and Anor v Zambia Seed Company Ltd (supra) on how grounds of appeal ought to be framed . In said decision, we upheld the preliminary objection and dismissed the appeal. This was on the basis that the ground of appeal was a narrative, did not contain the points of law or facts wrongly decided and the error complained of was not apparent on its face. The respondent restated that the appellant's grounds of appeal do not comply with Order 10 Rule 9 (2 ) CAR, therefore, the appeal should be dismissed. 5 .0 ARGUMENTS IN OPPOSITION 5. 1 Skeleton arguments were filed in support of the affidavit in opposition. The appellant challenged the regularity of the RlO preliminary objection before Court. The argument is that in raising the preliminary objection, the respondent should have followed the procedural requirements of the law on raising preliminary objections. The cases of Henry Sampa v Abhishek Vijaykumar Patel191 and Access Bank Limited v Group Five/ZCON Business Park Joint Venture (Suing as a Firm) were cited to buttress the importance of adherence to the rules of Court. In casu, Order 13 Rule 5 CAR mandates that a preliminary objection be filed within fourteen days from receipt of the record of appeal. Order 13 Rule 5 CAR provides as follows: "A respondent who intends to make any preliminary objection in relation to an appeal shall give notice of such preliminary objection to the Court and the other parties within fourteen days from the date of receipt of the record of appeal." 5.2 The appellant having failed to file its notice of the preliminary objection within fourteen days of receipt of the record of appeal, ought to have made the requisite application for leave to file the said notice. Order 13 Rule 3 CAR allows a party who fails to make an application within the prescribed time to extend the time to bring that application. The respondent filed its application for leave five months after receiving the appellant's Rll record of app eal. Going by Order 13 Rule 3 (2) CAR, the respondent should have sought leave to file the notice of the preliminary objection out of time. The appellant su bmits that this Court has distinguished instances when a party ought to apply for extension of time or an application to file out of time. The case of Katemba Kahyata v ZM & P (BVI) Holdings Limited1101 was cited to illustrate the distinction. Similarly, in Henry Sampa v Abhishek Vijaykumar Patel, the Supreme Court also distinguished an application for extension of time from an application to file out of time. 5 .3 The appellant submitted that the effect of the failure by the respondent to comply with the rules of Court and the Court's guidance in decided cases is that the order granting the extension of time was erroneous. Therefore, the Court has no jurisdiction to hear the preliminary objection. Reference was made to the cases of JCN Holdings Limited v Development Bank of Zambia Limitedl11l in submitting that without jurisdiction, the court cannot take one more step. 5 .4 The appellant noted that the respondent proceeded to file its heads of argument before raising the preliminary objection. R12 That the respondent had sufficient time to challenge the grounds of ap peal but sat on its rights to raise the preliminary objection by opting to respond to the appeal. In Nico Coutlis Transport Limited v Buks Haulage Limitedl12l, this Court dismissed a preliminary objection because the respondent raised it after responding to the appeal. The appellant urged us, likewise, to dismiss the preliminary objection on the same grounds. 5.5 It was submitted that in the event the Court determines that it has jurisdiction to hear the preliminary objection, the same should fail on account of lack of merit, being frivolous and vexatious. The appellant contended that Order 10 Rule 9 (2) CAR does not restrict a ground of appeal to being solely a point of law or a point of fact, nor does it preclude it from being both. Instead, the requirement is that the grounds should be concisely and distinctly set out. The respondent's interpretation is, therefore, flawed and would lead to unnecessary duplicated grounds of appeal. 5.6 In response to the reliance on section 4 of the Interpretation and General Provisions Act by the respondent, the appellant R13 contend s that the provision has been miscon stru ed and is designed to mislead the Court. The use of the word "or" in Order 10 Rule 9 (2) CAR is expressive and does not command a party to choose one to the exclusion of the other. The authors of · Black's Law Dictionary 6 th Edition at page 848 define "or" as: "A disjunctive particle used to express an alternative or to give a choice of one among two or more things.. In some usages, the word "or" creates a multiple rather an alternative option." 5.7 Given the above definition, the position of the appellant is that under Order 10 Rule 9 (2) CAR, the word "or" was u sed to create multiple options to appellants and not alternative options. In addition, the phrase "points of law or fact" is a compound noun phrase to be used in the singular meaning. According to the authors of Advanced Grammar in Use 2 nd Edition Cambridge University Press 2005 at Unit 43, a .. ) I compound noun phrase is a group of words that functions as a noun and consists of two or more words combined. An example of compound words is "terms of service or use", referring collect ively to the class of terms involved and "standards of quality or performance", referring collectively to t he category of standards involved. . . 5.8 The appellant submitted that legal issues often encompass a R14 combination of points of law and fact. Certain factual findings inevitably require both legal and factual considerations to be addressed within the same ground. Allowing the argument of both points of law and fact within a single ground of appeal enables a more thorough and effective challenge to the judgment under appeal. This approach aligns with how the Courts have determined appeals. In Solomon Laban Jumbe Ngwenya and 8 Others v Hope Chandat131, this Court allowed grounds of appeal containing points of law and fact in a single ground, notwithstanding that the grounds of appeal were challenged for how they were couched. Further, in Antonio Ventriglia and Another v Finsbury Limitedl141 the Supreme Court had no hesitation in considering the grounds of appeal, which involved a blend of points of law and fact. 5.9 The appellant pointed out that the respondent did not refer to any Court decision in support of the argument that a ground of appeal should only contain either a point of law or fact and never both. 5 . 1 O In response to the assertion that the grounds of appeal were RlS u nclear, the appellant submitted that th e grounds were clear and formulated in accordance with the law. Furth er, each ground of appeal was styled as guided by Atkins Court Forms Second Edition Volume 5 1992 issue page 270 Form 93, which provides a guideline as follows: .. AND FURTHER TAKE NOTICE that the grounds of this appeal are that The Learned Judge or Divisional Court wrongly exercised [his or her] discretion [in that (set out issue of law which the appellant contends was wrongly decided by the court below)[The learned Judge or the Divisional Court] ought to have held that (set out the conclusion of law which the appellant contends that the court below ought to have reached) The Learned Judge wrongly exercised [his or her] discretion [in that (specify the basis upon which the appellant contends that the Judge's discretion was exercised in a way which was wrong in pr inciple) or because in reaching [his or her] decision the learned Judge relied [in part] on (specify the factor which the appellant contends that the judge ought not to have taken account] or because in reaching (his or her] decision the learned Judged excessive reliance upon (specify factor concerned) and failed to take into account of (specify the factor(s) concerned and failed to take any or sufficient account of (specify the factor(s) which the appellant contends should have led the judge to a different conclusion [Having regard to [circumstances of the case of the following circumstances namely, (specify the relevant , circumstances)] the learned Judge ought to have (specify the decision which the appellant contends that the Judge should have reached) .. " R16 5.11 Therefore, grounds of appeal may indicate the legal and/or factual issue that was wrongly decided by the lower Court; .. __ - ... identify the specific decision that is being challenged; indicate what the lower Court ought to have concluded or decided; highlight the circumstances of the case that should have led to - a different conclusion by the lower Court; and provide a brief summary of the evidence that contradicts the Judge 's conclusion. Consequently, the grounds of appeal properly follow the format of the Atkin Forms and are compliant with the Court of Appeal Rules. 5.12 In defending the validity of ground five, the appellant contends that it does not contain narratives but challenges the lower Court's conclusion regarding the amendment of the written agreement. It was submitted that although the respondent alleges that ground five is not clear, the respondent has adequately responded to the same, as shown in paragraphs 135 to 144 of the respondent's heads of argument. 5.13 With regard to grounds one, two, three, four, six, seven and eight containing arguments, the appellant stated that they do not contain arguments. The appellant is at liberty to tailor a R17 ground of appeal to the unique circumstances of the case. Merely stating that the Court below erred by making findings contrary to the evidence on the record or established principles may not precisely and effectively challenge the holding of the Court below. 5.14 The appellant further submitted that m dismissing the preliminary objection, the Court should have regard to the doctrine of judicial estoppel. The appellant referred to the doctrine of judicial estoppel from the perspective of Black's Law Dictionary 6 th Edition at page 848, as a common law doctrine where a party who, by his pleadings, statements or contentions under oath, has assumed a particular position in a judicial proceeding is estopped to assume an inconsistent position in a subsequent action. The doctrine was illustrated in the case of Zambia Revenue Authority v Professional Insurance Corporation Zambia1151 • 5 . 15 It was contended that the doctrine is not a stamp against legitimate claims, but its purpose is to protect the integrity of the judicial process from frivolous claims such as the one in casu. The appellant invited the Court to take judicial notice of • R18 the appeals argued by the respondent's counsel in Jonathan Van Blerk v Attorney General and Others116 1 and Diego Casilli v Access Bank (Zambia) Limited and Others117 1. In the said cases, Counsel drafted grounds of appeal similar to the appellant herein by combining the points of law and fact. The appellant argued that this demonstrates that the preliminary objection is frivolous and intended to delay the h earing of the appeal. We were urged to consider the doctrine of estoppel and dismiss the preliminary objection. 6.0 ARGUMENTS IN REPLY 6.1 We have taken note of the detailed arguments in reply dated 8 th January 2025. We shall not rehash the arguments in detail save where pertinent: The appellant in respect of the contention that the preliminary objection is not properly before the Court, submits that the Court should confine itself to the merit of the Notice and that there is no application challenging the Notice of Preliminary Objections. Therefore, the appellant has waived the right to challenge the Notice on procedural grounds. Further, that the Order dated 13th September 2024, granting leave to the respondent to apply for extension of time to file the Notice and R19 liberty to is sue the Notice of preliminary objection to the appeal is valid and has not been set aside. That the app ellant ought to have moved the Cour t to disch arge Order of 13th September on grounds of withheld material facts. As r egards lacks of jurisdiction of this Court to hear the preliminary objection, the respondent's position is that the Court has jurisdiction stemming from the Constitution and CAR. Reference was made to Article 131, and 120(3) of the Constitution of Zambia. 6.2 The respondent refuted its alleged dilatory conduct by filing the Notice five months after service of the record of appeal and heads of argument. This is in view of the Order dated 13th September granting permission to file the preliminary objection. The cited cases of Solomon Laban Jumbe Ngwenya & Other v Hope Chanda and Nico Coultis Transport Limited v Buks Haulage Limited were distinguished. That the law is that a respondent cannot in its arguments in response to the appeal challenge the propriety of the appeal. That a formal application must be made before submitting the head of arguments in response to the appeal. 6 .3 In response to the main issue of the grounds offending the provisions of Order 10 Rule 9(2) of CAR, the respondent reiterated its arguments in support, that the all the grounds l • R20 allege both an error of law and fact, that the grounds do not disclose the point of law and fact decided by the Court below. Further, that the grounds contain arguments and narratives. 6.4 As regard the raised concept of judicial estoppel, the position of the respondent is that the appellant has not explained h ow it relates to the Notice. That it does not apply to advocate as per attempt by the appellant to refer to appeals in which they argued alleging error of law and fact. 6.5 The respondent discussed arguments relating to public policy considerations necessitating the hearing of the appeal as legally unsound. The respondent submits that its Notice is properly before the Court and should be determined on the merits. And that the appeal should be dismissed for offending the provisions of Order 10 Rule 9(2) of the CAR on grounds stated. 7 .0 DECISION OF THE COURT 8.1 We have considered the Notice of preliminary objection to the appeal raised by the respondent, the affidavits and the arguments in support as well as in opposition. The main contention in the preliminary objection is that the grounds of appeal are improperly framed and do not comply with the provisions of Order 10 Rule 9 (2) CAR. It is argued that, the R21 gr ounds of app eal con tain arguments as well a s narratives. Secondly, they allege a misdirection on a p oint of law and fact within a single ground instead of distin ctly framing each ground to allege either a point of law or fact. Lastly, that th e grounds of appeal are not clear in specifying the point of law or fact wrongly decided by the Court below. For ease of refer en ce the grounds of appeal are framed as follows : i) That the Court below erred in law and fact when it held on page J47 of the Judgment that the Plaintiff's claims prior to 2013 were not statute barred contrary to the Plaintifrs claims and the evidence on record which the Court ought to have relied on. ii) That the Court below erred in law and fact when it held that the unsigned Tyre Management Services Agreement was valid despite the absence of any evidence on record showing acceptance by the Defendant of the terms set out in the unsigned Tyre Management Services Agreement contrary to the law of the contract and judicial precedence. iii) That the Court below erred in law and in fact when it found that the evidence the Plaintiff's Witness was stronger and more credible than that of Defendant's Witness only on the basis that the Defendant's Witness on record was not present at the meeting which allegedly culminated into the unsigned Tyre Management Services Agreement. iv) That the Court below erred in law and in fact when it found that the Plaintiff's evidence was unchallenged on the terms agreed at the meeting that allegedly resulted in the unsigned Tyre Management Services Agreement, Including pricing, contrary to the Defendant' s evidence on record which rebutted the pricing in the unsigned Tyre Management Services Agreement. .. R22 v) That the Court below erred in law and in fact it held that agreement between the Plaintiff and the Defendant was amended by an oral agreement which the plaintiff started performing and that by the conduct the Defendant acquiesced to the new contract terms agreed on by the parties thereby ignoring the evidence on record confirming that the parties were engaged in ad hoc arrangements which were regulated by the issuance of purchase orders for each specific job. vi) That the Court below erred in law and fact when it held the parties executed their arrangements based on the new negotiated terms notwithstanding the absence of evidence from the plaintiff demonstrating that the Plaintiff had effected and billed the Defendant based on the said new pricing terms. vii) That the Court below erred in law and fact when it held on page JS l of the Judgment that the Plaintiff was underpaid for Tyere Management Services provided to the Defendant notwithstanding that there was no agreement or evidence of any invoices between the parties to justify a finding of the alleged underpayments. viii) That the Court below erred in law and fact when it held on page JS0 of the Judgment that the Defendant underpaid the Plaintiff for tyre management services offered in the per iod tat July 2009 and May 2012 in the sum of USO 102,052 during operation of Statutory Instrument No.33 of 2012 notwithstanding the lack of evidence on record. 8 .2 The ap pellant, on th e other hand, h a s ch allen ged the regularity of the p reliminary objection, stating that the respondent erroneously applied for an extension of tim e to file the notice of the preliminary objection as opposed to a pplying to file the s ame out of time. It was argued that th e rules of this Court are clear R23 in guiding when a party ought to apply for an extension of time or out of time. That the Order for leave was erroneously granted. 8.3 We shall first determine the argument raised by the appellant as to whether the Notice of Preliminary objection is properly before this Court, or whether we have jurisdiction to hear the preliminary objection on account of the Notice of Preliminary objection having been raised outside the requisite period stipulated by Order 13 Rule 5 of the CAR. 8.4 Order 13 Rule 5 of CAR stipulates that "A respondent who intends to make any preliminary objections in relation to an appeal shall give notice of such preliminary objection to the Court and other parties within 14 days from the date of receipt of the record of appeal." 8.5 Order 13 Rule 3 provides for extension of time for making an application such as taking a step in or connection with an appeal etc. 8.6 It is not in dispute that the respondent did not file its notice to raise a preliminary objection within fourteen days from receiving the appellant's record of appeal as required under Order 13 Rule 5 CAR. The record shows that the respondent applied to file the Notice of preliminary objection on 10th ... R24 September 2024, five months after rece1vmg the app ellant's record of appeal. Order 13 Rule 3 (2) CAR allows an applicant _ to make an application for an extension of time within twenty one days of the expiry of the time limit. Where the twenty-one day period has elapsed, the applicant must first obtain leave to apply out of time. Therefore, the respondent being outside the fourteen days for filing the preliminary objection, and the twenty-one days within which to seek an extension of time, sought by way of Ex - Parte Summons pursuant to Order 13 Rule 3 (2) and 3(3) of the CAR, an order leave to apply for extension of time and Extension of time to file the Notice of preliminary objection to the appeal. In Rachel Saka v Hilda Chomba11s1, we held that because both the sixty days for enlargement of time and the twenty-one days for extension of time had elapsed, the application should have been for leave to file the record of appeal pursuant to Order 13 rule 3(3) CAR and that the summons should have read: "Summons for an o rder for leave to apply for extension of time within which to file the record of appeal out of time." 8 . 7 A perusal of the application before the single Judge reveals that the Notice filed by the respondent was captioned as follows: "Notice of Application for Extension of Time to File the .. R25 Notice of Preliminary Objection to the Appeal Pursuant to Order 13 Rule 3 (3) of the Court of Appeal Rules 2016''. 8. 8 The readin g of th e said notice goes on to state th at the respondent; "HEREBY GIVES NOTICE of application for an order that the respondent's time for filing the notice of the preliminary objection to the appeal pursuant to Order 13 r.5 (1) of the COAR be extended for seven (7) days from the date of this Order." 8 .9 The record also s h ows that th e respondent filed ex-parte summons which reads as follows ; "Ex-Parte Summons for: (a} Leave to Apply for Extension of Time; and (b) Extension of Time to File the Notice of Preliminary Objection to the Appeal Pursuant to Order 13 Rule 3 (2) and (3) of the Court of Appeal Rules 2016" . 8.10 In Rachel Saka v Hilda Chombal171, we aptly guided how an application for leave to file out of time must be captioned. We also cautioned that where parties do not comply with the rules of Court, we will not hesitate to dism iss the application. Reverting to the ex-parte summons at hand, in our view, the respondent made a composite application seeking leave to apply for Extension of time to file the Notice of Preliminary objection. A party only seek s leave for an extension when they are outside the prescribed time and the twenty-one-day period within which .: R26 the application should have been made. In analysing the respondent's application, it is clear to this Court that the respondent was seeking an order for leave to apply for Extension of time and Extension of time to file the notice of preliminary objection. Based on the above, by Ex - parte Order dated 10th September 2024 the single Judge granted the respondent (a) leave to file its application for Extension of time to file the Notice of preliminary objection to the appeal pursuant to Order 13, Rule 5 (1) of the CAR and (b) granted the respondent liberty to issue the notice of preliminary objection to the appeal within seven days from the date of the said Order. 8.11 We note the objection of the appellant that this Order was erroneously granted. We shall not belabour this argument for the reason that the Ex - parte Order of the single Judge has not been set aside or varied by the Court. The leave granted stands. We therefore hold that the Notice of preliminary objection is properly before this Court and we have jurisdiction to hear the objection. 8.12 The main substantive issues for determination raised in the preliminary objection are as follows ; ; R27 ( 1) Whether th e gr ounds of appeal offend th e provisions of Order 10 Rule 9(2) of the CAR, by combing an a ppeal on a p oint of law and fact (2) Whether the groun ds of appeal dis clos e the points of law and fact alleged to have been wrongly decided by the Cou rt below (3)Whether the grou nds of appeal contain argum en ts and or narratives. 8. 13 There are a plethora of authorities by the Su preme Court as well this Court to the effect that where grou nds of app eal do not comply with th e rules of Cou rt or offen d the said rules , the appeal will be dismissed. Further, that non-compliance with the rules of Court as regard the framing of the grounds of appeal goes to the j urisdiction of the Court to entertain the appeal. 8 .14 The respondent h as r aised an issu e on the p rop er framing of r grounds of appeal in accordance with Order 10 Rule 9 (2) CAR. To put the issue in perspective, Order 10 Rule 9 (2) CAR states that: "A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of the objection to the judgment appealed against, and shall specify the points of law or fact which are alleged to have been wrongly decided, such grounds to be numbered consecutively." 8 . 15 Order 10 Rule 9 (2) is instructive on how grounds of appeal to R28 the judgment appealed against contained in a memorandum of appeal should be prepared. The memorandum of appeal should be concise and under distinct heads. The points or the grounds must specify whether the error by the Court below was on a point of law, i.e. incorrect legal principle or incorrect application of legal principle or a point of fact, i.e. wrong assessment of .... evidence. This enables the Court to easily understand the reasons for the appeal and focus on the relevant legal and factual issues. 8.16 The respondent essentially contends that a ground of appeal cannot encompass both a point of law and a point of fact; rather, it must be restricted to one or the other. That a misdirection on a point of law and a misdirection on a point of fact are not the same, they constitute two separate grounds of appeal. 8.17 Though we agree with the respondent that a misdirection on a point of law and a point of fact are indeed not the same, in our view, they do not necessarily have to be raised as separate grounds of appeal. The purposive rule of statutory interpretation requires Courts to interpret a statute in a way that gives effect to the legislature's intended purpose. Applying the purposive rule herein, it can easily be gleaned that the R29 drafters intended for an appellant to either state a point of law or point of fact in issue. This did not preclude a ground alleging error in both points of law and fact in a ground of appeal if they arose from the srune circumstances. 8.18 Supposing that the word "or" was substituted with "and" to allow the combination of both points of law and fact in a ground of appeal, it would lead to an absurdity, as there are many instances where a court errs on a point of law without erring on a point of fact, and vice versa. If a trial court misinterpreted a legal principle (point of law) and also misapplied it to the ~ . I evidence (point of fact), the appellant may challenge both a spects in the srune ground. So, while the wording suggests an option between law or fact, a combined challenge to both law and fact is not prohibited as long as it is clearly stated. 8.19 In our view, the overriding consideration is the clarity and distinctness with which the point of law or point fact is articulated/frruned. We hold the view and find that the grounds of appeal having contained the statement "erred in law and in fact" does not render the grounds of appeal incompetent, to warrant dismissal of appeal. C: • ' • 8 .20 As to the issue of whether the grounds of appeal disclose the R30 point of law and facts alleged to have been decided, we have perused the grounds of appeal earlier highlighted in paragraph 8 .1. In our view, all eight grounds of appeal do disclose the point of law and fact in contention. Without delving into the specific points of law and facts disclosed, a glance at the grounds reveals that points of law such as whether the claims prior to 2013 are statute barred, whether there was a valid Tyre Management Services Agreement (TMSA), the terms of the said TMSA agreement, whether the said agreement was amended by an oral agreement and issues of acquiescence to the new contract. In r espect of findings of fact the issue of credibility and holding that the respondent was under paid etc. In respect of findings of fact appealed against, the contention by the appellant is that they are inconsistent with some documentary evidence that shows to the contrary or inconsistent with the oral evidence of one or more witnesses. 8.21 As regards the issue of whether the grounds contain arguments and narratives it is trite that a m emorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. It is the duty of counsel R31 to take time to draw the memoranda of appeal 1n strict compliance with the rules of Court. 8.22 We have read the grounds of appeal, 1n our view, the eight grounds of appeal do not contain arguments or narratives to warrant dismissal. We cannot say that the grounds are empty rhetoric. 8.23 We hold that the grounds of appeal do not offend the rules of Court, they are concise and precise, do not contain arguments or narratives. The grounds do state the points of law or findings of facts being appealed against. The grounds of appeal specifies the details of what is being appealed against. The framing of grounds of appeal is not restricted to the rigidity of set terminology or nomenclature. The substance of the grounds of Q appeal are set out. Legal Practitioners exhibit different styles in framing of grounds. As long as the grounds disclose the basis upon which the decision is impugned in a clear and concise manner, and does not contain arguments or narratives and is based on points of law or facts, there is no basis to dismiss such an appeal. 8 .0 CONCLUSION 9. 1 We find that the grounds of appeal do not offend the rules of the Court and clearly set out the alleged errors of law and/ or .. R32 fact made by the Court below. They do not contain arguments or narratives. We hold that the grounds of appeal have been properly drafted in compliance with the p rovision of Order 10 Rule 9(2) CAR. The preliminary objection is, therefore, dismissed for lack of merit. Costs abide the outcome of the main appeal. M. J. Siavwapa JUDGE PRESIDENT F. M. Chishimba ................................................ A. N Patel S. C COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE