Lusaka City Council and Anor v Silungwe and Ors (SCZ 8 25 of 2014) [2018] ZMSC 404 (2 February 2018)

SELECTED RULING NO. 7 OF 2018 P.238 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) SCZ/8/25/2014 APPEAL NO. 92/2014 BETWEEN: LUSAKA CITY COUNCIL LEAH DIANA MITABA AND GEORGE SILUNGWE ANNA VIOLET BANDA GODFREY L. MWAMBA 1st APPELLANT 2nd APPELLANT 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT Coram: Mambilima, CJ, Kaoma and Musonda, JJS on 6th December, 2016 and pt February, 2018 For the 1st Appellant: Mr. Mwape Michael Moono, of Lusaka City Council For the 2nd Appellant: Mr. S. Simwanza of Messrs Lungu Simwanza and Company. For the Respondents: Mr. A. K. Phiri of Messrs H. M. Munsanje and Company RULING MUSONDA, JS, delivered the Ruling of the Court. Cases referred to: 1. Zambia Revenue Authority v. TAG Transport (2007) Z. R. 13. 2. Kaole Contracting and Engineering Company Limited v. Mindeco Small Mines Limited: (1980) Z. R. 91 Legislation referred to: 1. Supreme Court Rules 12, 19, 49, 54 and 55 of CAP. 25. R2 P.239 Other Materials referred to: 1. Order 20/8/2 of the White Book (1999) 2. Order 14 A - White Book (1999) 3. Order 42, R.2, White Book (1999) This is a combined Ruling upon two preliminary applications which had been separately mounted by counsel for the respondents and counsel for the 1st appellant. The latter’s application was mounted informally and was of the nature of a cross-application to the respondents’ formal application which, itself, was of the nature of a preliminary objection by which the respondents seek to have us decline to entertain the 1st appellant’s appeal. At the outset, we propose to chronologically set out the sequence of events and background circumstances around which the preliminary applications in question revolved. For the purpose of this exercise and, as we had intimated to the parties when we adjourned this matter for this Ruling, we have now had the opportunity to access and examine the original High Court record relating to this matter under Cause 2013/HP/0626 and the relative Supreme Court of Zambia record under Cause SCZ/8/25/2014 and confirm having established the following matters: R3 P.240 (a) On 10th May, 2013, the respondents instituted the action from which the appeal to this court arose in the High Court of Zambia. The action was instituted by writ of summons which was accompanied with the requisite statement of claim; (b) On 17th July, 2013, the 1st appellant, then 1st defendant, filed a preliminary application seeking to have the subject action dismissed on a point of law pursuant to Order 14A of the White Book (1999 edition). That application was heard by Kondolo, J (as his lordship then was) who, in a written Ruling dated 7th October, 2013, dismissed the same; (c) On 28th October, 2013, the 1st appellant filed an ex-parte application in the court below seeking leave to appeal against the said Ruling of Mr. Justice Kondolo dated 7th October, 2013 and a further application seeking an order to stay the proceedings in the court below. These twin applications were returnable on 26th November, 2013 before the Hon. Mr. Justice M. Kondolo; (d) On 26th November, 2013 Mr. Justice Kondolo granted the 1st appellant leave to appeal against his lordship’s Ruling dated 7th October, 2013 but refused to grant the application to stay proceedings. This was after the learned judge had conducted an ex-parte hearing which was attended to by a Ms. Emelda Bupe, the 1st appellant’s legal officer; R4 P.241 (e) On 30th December, 2013 a drawn-up formal order relating to the granting of leave to appeal in favour of the 1st appellant was filed in the Principal Registry of the High Court of Zambia. This order not only bore the signature of the Hon. Mr. Justice Kondolo who had granted the same but spoke to the fact that the hearing relating to the same occurred on 26th November, 2013; (f) On 29th January, 2014 a Notice of Appeal was filed in this court on behalf of the 1st appellant in respect of these proceedings. That Notice was accompanied with the requisite Memorandum of Appeal; (g) On 3rd April, 2014, counsel for the parties in this matter appeared before a single judge of this court, the Hon. Mr. Justice G. S. Phiri, in connection with the 1st appellant’s twin applications, namely, an application to amend the Notice of Appeal and Memorandum of Appeal and a further application to have the High Court proceedings relating to this matter stayed. These twin applications were successful and; (h) On 22nd April, 2014, the 1st appellant filed an Amended Notice of Appeal together with an Amended Memorandum of Appeal. The two amended documents were incorporated in the Record of Appeal which the appellant subsequently lodged in this court on 28th May, 2014 in accordance with Rule 54 of the Supreme Court Rules. R5 P.242 On 25th November, 2016, counsel for the respondents filed a Notice of Intention to Raise a Preliminary Issue pursuant to Rule 19(1) of the Supreme Court Rules, CAP. 25. In terms of this preliminary issue, the respondents contended that the present appeal is not properly before this Court on account of the following: 1. That the Notice of Appeal was not filed in accordance with Rule 49(2) of the Rules of the Supreme Court, CAP. 25 in that the same was filed long after the expiration of the prescribed time and without the requisite leave having been previously obtained; and 2. That, further or in the alternative, the Record of Appeal was neither filed in accordance with Rule 54 of the Supreme Court Rules, CAP. 25 nor was appropriate leave sought to file the Record out of time. Counsel for the respondents also filed a list of Authorities and Heads of Arguments to buttress their preliminary issue. In their arguments, the respondents’ counsel has contended that, in terms of Rule 49(2) of the Rules of the Supreme Court, a person who is desirous of appealing to this Court is required to file the relevant Notice of Appeal within 30 days after the Judgment complained of. R6 P.243 According to the respondents’ counsel, in the case at hand the appellants did not file the Notice of Appeal within 30 days after the delivery, that is, on 7th October, 2013, of the Ruling complained of but only did so on 29th January 2014, that is to say, after a period of 90 days from the date when the Ruling appealed against was delivered. Counsel further contended that no leave was obtained by the appellants to extend the time nor to file the Notice of Appeal out of time. According to the respondents’ counsel, the requirement for leave went to the jurisdiction of the court and the failure to secure the same rendered the instant appeal incompetent and misconceived. Counsel went on to cite our decision in Zambia Revenue Authority v. T and G Transport1 in which we confirmed the fact that the requirement for securing leave went to the jurisdiction of the court. Counsel also articulated his alternative argument which was to the effect that even if we were to take the view that the appellants had complied with Rule 49(2) with regard to the proper filing of the R7 P.244 Notice of Appeal, he maintained that the appeal as lodged remained incompetent on the basis that the requisite Record was not lodged within 60 days from the date when the Notice of Appeal was filed but was only lodged on 28th May, 2014, that is to say, more than 120 days after the filing of the Notice of Appeal. According to counsel, the 1st appellants’ failure to lodge the Record within 60 days exposed the appeal to the peril of dismissal pursuant to Rule 55 of CAP. 25, especially that the appellants did not even care to extend the time within which to lodge the Record let alone to obtain leave to file the Record out of time. At the hearing of the appeal, Mr. A. K. Phiri, counsel for the respondents rose to argue the preliminary issue. Learned counsel informed us that we did not have the requisite jurisdiction to entertain the appeal on account of the fact that it was not properly before us. In this regard, counsel drew our attention to the written Heads of Argument which he had filed in support of the preliminary application. R8 P.245 In the course of hearing the respondents’ counsel’s oral arguments in respect of the application in question, we drew the attention of counsel to an order in the Record of Appeal which appeared to have been dated 3rd December, 2013 and which order had granted the appellants leave to appeal. In response, Mr. Phiri argued that, as the 1st appellant had been granted leave to appeal on 3rd December, 2013 but only filed the Notice of Appeal on 29th January, 2014, there had been a failure to comply with the law which prescribed a period of 30 days. At that point, Mr. Moono, learned counsel for the 1st appellant rose to inform us that he had an application to make arising from the date which was reflected on the photocopied order granting leave to appeal which was unclear and appeared to reflect 3rd December, 2013 instead of 30th December, 2013 as the relevant date when the order was filed into court. According to Mr. Moono, the original copy of the order granting the 1st appellant leave to appeal clearly reflected 30th December, 2013. Arising from the above revelation by Mr. Moono, Mr. Phiri, the respondent’s counsel, reacted by informing us that he was withdrawing the first limb of his application in so far as it had related R9 P.246 to the filing of the Notice to Appeal. However, Mr. Phiri maintained that, even with the withdrawal of the first limb of his preliminary application, the appeal remained incompetent on account of non- compliance with Rule 54 of the Supreme Court Rules, CAP.25 which enjoins an appellant to lodge the Record of Appeal within 60 days from the date of filing the Notice of Appeal. In the context of this appeal, Mr. Phiri reiterated that the Notice of Appeal was filed on 29th January, 2014 while the Record of Appeal was only filed on 28th May, 2014 which, counsel argued, was way beyond the 60-day time limit prescribed in Rule 54 of the Rules of the Supreme Court, CAP.25. In his reaction to the second limb of Mr. Phiri’s preliminary application, Mr. Moono informed us that, following the filing of the Notice of Appeal on 29th January, 2014, the 1st appellant did subsequently apply and was granted leave to amend the Notice of Appeal on 3rd April, 2014 and that this amended Notice of Appeal was only filed into court on 22nd April, 2014. Under these circumstances, Mr. Moono reasoned that the lodging of the Record of Appeal in May, 2014 had occurred within the prescribed period of 60 days. RIO P.247 Leaving aside the above-stated position, Mr. Moono posited that, in their Notice of Intention to Raise Preliminary Issues, the respondents had not suggested that they had suffered any prejudice as a result of the appellants’ failure to file the Record of Appeal within the prescribed time. Having regard to the issues which had arisen in relation to the two preliminary applications which had been mounted by counsel for the parties in this matter, we adjourned all further proceedings so that we could consider the applications in question and render our Rulings thereon. For the avoidance of doubt, what we are treating as the second preliminary application was the one which Mr. Moono, learned counsel for the 1st appellant, had mounted seeking to have the order on record granting leave to appeal and which appears to have been dated 3rd December 2013 substituted with the original order which had been dated 30th December, 2013. In making our decision to adjourn, we noted that we required to access and examine the relevant original court records in Lusaka. We also observed that the issue of when and whether the pending Rll P.248 substantive appeal would be heard was to abide the outcome of the applications which attracted this Ruling. We have seriously considered the two applications and propose to start by addressing the 1st appellant’s counsel’s application to substitute the order granting leave to appeal which is dated 3rd December, 2013 with the order dated 30th December, 2013 which we were urged to accept, was the relevant order bearing the relevant date. We indicated early on in this Ruling that our examination of the original records relating to this matter had revealed that, on 26th November, 2013, the Hon. Mr. Justice Kondolo granted the 1st appellant leave to appeal against the learned judge’s Ruling dated 7th October, 2013. A formal order of that Ruling was only filed into court on 30th December, 2013. If we understood counsel for the 1st appellant correctly, it was his contention that the effective date of the order of Mr. Justice Kondolo granting the 1st appellant leave to appeal was 30th December, 2013 (being the date when the formal or drawn-up order was filed) R12 P.249 and that, consequently, the filing of the 1st appellant’s Notice of Appeal on 29th January, 2014 fell within the prescribed period of 30 days. We must say, without the slightest equivocation, that the contention by Mr. Moono, as set out above, is wholly misapprehended and totally misses the point as to the manner in which court orders take effect. Order 42 Rule 3 of the White Book (1999 edition) provides that: 3-( 1) “Subject to the provisions of Rule 3A, a judgment or order of the court... takes effect from the day of its date. (2) Such a judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the court ... orders it to be dated as of some earlier or later day, in which case it shall be dated as of that other day.” The above rule was applied by Moodley, J in his High Court judgment in the case of Kaole Contracting and Engineering Company Limited v. Mindeco Small Mines Limited2 where the Court also observed, at p.93, that: “Orders made in Chambers must be dated on the day they were actually made, unless the court otherwise orders.” R13 P.250 Clearly, therefore, court orders take effect from the date when they are pronounced unless a contrary intention is expressed by the court granting the same or appears from the order itself. In relation to the matter at hand, the order granting the 1st appellant leave to appeal was pronounced by Kondolo, J on 26th November, 2013. Although, therefore, the formal drawn-up order granting leave to appeal was only filed on 30th December, 2013, the same had long taken effect following its pronouncement on 26th November, 2013 such that the appellant was obliged to file the Notice of Appeal within 30 days from 26th November, 2013 and not 30th December, 2013. It accordingly follows that the purported filing of the Notice to Appeal on 29th January, 2014 was legally ineffectual and, therefore null and void. The meaning and effect of the conclusion which we momentarily reached above is that it discounts counsel for the 1st appellant’s contention which, in effect, suggested that, following the granting, by a single judge of this court, of leave to amend the Notice of Appeal on 3rd April, 2014, the 1st appellant’s obligation to file the record of R14 P.251 appeal as dictated by Rule 54 of the Rules of this Court was postponed in the sense that the relevant period had to be reckoned from 3rd April, 2014 as opposed to 26th November, 2013. Our reaction to this argument can be found in Order 20/8/2 of the White Book (1999) which provides as follows: “An amendment duly made with or without leave, takes effect not from the date when the amendment is made, but from the date of the original document which it amends; and this rule applies to every successive amendment of whatever nature and at whatever stage the amendment is made. Thus, when an amendment is made to the writ, the amendment dates back to the date of the original issue of the writ and the action continues as though the amendment had been inserted from the beginning.” Applying the law as we have discussed it above to the issue that we are presently confronted with leaves no doubt that the 1st appellant’s counsel’s argument as to the timeliness of the lodging of the Record of Appeal is completely without merit. In the result, we have reached the following conclusions: (a) Although we have no difficulty in allowing counsel for the 1st appellant’s application to substitute the order of Kondolo J granting the 1st appellant leave to appeal which bore or appeared to bear the 3rd December, 2013 High Court date R15 P.252 stamp with the original copy of the same order which bore the 30th December, 2013 High Court date stamp, no useful purpose would be served in our having to proceed in that fashion in the light of the fact that the default which formed the basis of the respondents’ attack would not be cured thereby. Indeed, the invalidity and ineffectiveness of the Notice of Appeal which was purportedly filed on 29th January, 2014 remains as such whether or not the order of Kondolo J dated 26th November, 2013 granting leave to appeal and appearing to bear the 3rd December, 2013 High Court date stamp is substituted with the same order but which bears the 30th December, 2013 High Court date stamp. Needless to say, the substitution of the 3rd December, 2013 High Court date stamp with the like stamp but bearing the 30th December, 2013 date will neither change the substance of the order granting leave nor the date when the leave in question was granted. (b) As the Notice of Appeal in (a) remained irregular and legally ineffectual, the purported filing of the Record of Appeal on the basis of the irregular and legally ineffectual Notice of Appeal was as legally futile and ineffectual as was the filing of the purported Notice of Appeal itself. (c) Even assuming we be wrong in reaching the conclusions we have reached in (a) and (b) above, we are in no doubt, based R16 P.253 on the preceding discourse, that not even the amendments which had arisen before a single judge of this court in relation to the Notice of Appeal and the Memorandum of Appeal can afford the 1st appellant any respite in the light of the meaning, effect and operation of Order 20/8/2 of the White Book (1999) vis-a-vis the issues at play in this matter. In sum and, on the basis of what we have canvassed above, we have no jurisdiction to entertain the legally incompetent appeal which had attracted the preliminary issues which we have pronounced ourselves upon in this Ruling. Accordingly, we announce that the respondent’s preliminary objection has succeeded. Accordingly, we decline to entertain or to hear the 1st appellant’s appeal. As the 1st appellant appears to have been solely behind this incompetent appeal, we order that they bear the arising costs which costs are to be taxed if not agreed. The meaning and effect of the conclusions we have reached in this Ruling is that they have opened the way for the parties to return to R17 P.254 the High Court matter whose progress was disrupted by the appeal whose fate we have now resolved in this Ruling. I. C. MAMBILIMA CHIEF JUSTICE R. M. C. KAOMA M. MUSONDA SUPREME COURT JUDGE SUPREME COURT JUDGE