NFC Africa Mining PLC v Techro Zambia Ltd (SCZ Judgment 22 of 2009) [2009] ZMSC 168 (3 September 2009)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA AND NDOLA (CIVIL JURISDICTION) (423) SCZ JUDGMENT NO. 22 OF 2009 APPEAL NO. 17 OF 2009 BETWEEN; NFC AFRICA MINING PLC APPELLANT AND TECHRO ZAMBIA LIMITED RESPONDENT CORAM: SAKALA, CJ, CHITENGI AND CHIBOMBA JJS On 16th June, and 3rd September, 2009 For the Appellant: Mr. W. M. FORREST of Forrest Price and Co. For the Respondent: Mrs. L. K. MBALUKU of L. K. Mbaluku and Co, RULING SAKALA, CJ., delivered the Ruling of the Court. CASES REFERRED TO 1. Ramnsley and Another V. Townsent [2002] ZR 70 2. Manubhai Patel and Manurania Research and Development Project V. Arvindbhai Patel and Amin and Company Ltd Appeal No. 205 of 2003 (424) This is an appeal against two Rulings of the High Court dated the 10th of October 2008 and the 27th of November 2008, dismissing the application, with costs, to set aside the Arbitral Award and refusing the application for leave to appeal to the Supreme Court and stay of execution of the Ruling of 10th October, 2008 pending appeal to the Supreme Court, respectively. However, leave to appeal to the Supreme Court against the Ruling of the 27th of November 2008 was granted.. For convenience, we shall refer to the Appellant as the Defendant and the Respondent as the Plaintiff, the designations which they were in the Court below. Before the appeal could be heard, Counsel for the Plaintiff, Mrs. Mbaluku, filed a notice to raise preliminary issues; namely: 1. That the appeal against the Ruling of the 1 Oth of October was irregularly before the Supreme Court as no leave to appeal against that particular Ruling had been granted and it should therefore be dismissed with costs to the Respondent; and (425) 2. That there were no grounds of appeal against the Ruling of the 27th of November 2008, and that this was equally irregular and the appeal against this Ruling should also be dismissed with costs to the Respondent. Both parties filed written heads of argument supplemented by oral submissions. The gist of the written arguments, on behalf of the Plaintiff, is that both appeals are incompetent for the reasons:- that the Defendant had directly filed the Notice of Appeal against the Riding of 10th October, 2008, which was a chamber matter without the leave of the Court, contrary to Section 24 (l)(e) of the Supreme Court Act as read with Rule 50(1 )(2) of the Act; and that even though there was leave to appeal against the Ruling of the 27th of November 2008, it was equally incompetent in that it did not comply with the Rules of the Supreme Court with regard to the filing of the Memorandum of Appeal and Heads of Argument contrary to Rules 58{l)(2)and 4(d) and Rule 70(l)(2) of the (426) the Supreme Court Act, under Rule 68(2) allows the Court to dismiss the appeal which does not comply with the Rules of this Court. In relation to the issue of leave to Appeal from a chamber matter; it was pointed out that the application to set aside the Arbitral Award was a chamber matter. The Ruling was delivered on 10th October, 2008. It was submitted that in terms of Section 24(1) of the Supreme Court Act. there was need, to obtain leave of the Court before appealing; but that the trial Judge refused to grant leave to appeal against the Ruling of 10th October, 2008 and gave his reasons for doing so in his Ruling of the 27th of November, 2008. It was also pointed out that leave to appeal was only granted against the Ruling of the 27th of November, 2008. It was explained that the Defendant should have just appealed against the Ruling of the 27th November, 2008 before proceeding to appeal against the Ruling of the 10th of October, 2008. It was submitted that the word “shall” in Section 24(1) (e) of (427) of Ramnsley and Another V. Townsent(1) was cited in support of this submission. It was further submitted that in terms of Section 24(l)(e) of the Supreme Court Act, there being no leave granted to appeal against the Ruling of the 10th of October 2008, the direct appeal against it before this court was incompetent and should accordingly be dismissed with costs. On failure to comply with the Appeal Format Requirements set out by the Act. it was nointed out that although there was leave granted to appeal against the Ruling of the 27th November, 2008, the Appeal was equally incompetent because it did not comply with the Rules of the Supreme Court with regard to format in terms of Rule 58 (1) (2) and 4 (d) that requires the filing of the- Memorandum of Appeal, whilst Rule 70(1) and (2) requires the filing of the Heads of Argument in support of the grounds set out in the Memorandum Appeal. It was pointed out that both Rules use the word “shall” to imply that it is mandatory for the Defendant to file grounds of appeal and indeed the arguments in support of those (428) It was further pointed out that a close examination of the Record of Appeal reveals that there is neither a Memorandum of Appeal with regard to the Ruling of the 27th November, 2008 nor any Heads of Argument to support the Appeal. It was submitted that there being neither the Memorandum of Appeal nor Heads of Argument for the Appeal against the Ruling of the 27th November, 2008, the Appeal is contrary to Rule 58(1), (2) and 4(d) of the Supreme Court Act; and equally incompetently before this Court and should be dismissed with costs. The case of Manubhai Patel and Manurama Research and Development Project V. Arvindbhai Patel and Amin and Company Ltd2 in which the Supreme Court described an appeal which did not comply with Rules of the Court as incompetent and dismissed it with costs was cited in support of this submission. The written heads of argument in support of the preliminary issue concluded with a prayer that both Appeals be declared incompetent and be dismissed. In her brief oral submissions, Mrs. Mbaluku, repeated her (429) written arguments. In his written response to the Plaintiff’s written Heads of Argument, Mr. Forrest, on behalf of the Defendant, pointed out that in the Ruling of the 10th October, 2008, the trial Judge first of all refused leave to appeal or to continue the interim stay of execution; but on the further Ruling of the 27th of November, 2008, the Court refused leave to appeal and for a stay of execution; but went on to grant leave to appeal against the Ruling of the 27th of November, 2008. Mr. Forrest submitted that in the circumstances, the trial Court granted leave to appeal and also leave to lift the stay. According to Counsel, a single Judge of this Court heard the application for stay on 16th December, 2008 and granted it. There was no mention of the present application made by the Plaintiff at that time or before. Counsel contended that the Plaintiff’s application was spurious and should be rejected. On the Memorandum of Appeal, Mr. Forrest pointed out that it (430) on 31st March, 2009. He submitted that the Supreme Court Rules were complied with. On the effect of Section 24 of the Supreme Court Act, Counsel submitted that the matter was not heard as a “chamber matter”; but was heard in chamber for the convenience of the Learned Judge; and that while Order 30 Rule 11 of the High Court Rules sets out cases which require to be heard in Chambers, the oresent matter is not one of them In the alternative, Mr. Forrest argued that Section 24(1) (e) of the Supreme Court Act gives exception as to what Orders, though made in chambers, may be appealed against without leave of the Court; and that one of the exceptions under Section 24(1) (e) (v) is an Order made on a case relating to the Law on Arbitration; that the present matter fell within the provisions of Section 24(l)(e)(v) of the Supreme Court Act and NO leave to appeal against the Ruling of the 10th October 2008 was even required. (431) In his brief oral submissions, Mr. Forrest contended that on a proper reading of the Ruling of 27th November, 2008, it was clear that leave to appeal against the Ruling of 10th October and 27th November, 2008 was granted. He submitted that the appeals were properly before the Court. The rest of the oral submissions were a repetition of the written response. In her reply, Mrs. Mbaluku, Counsel for the Plaintiff, repeated Hpt written qrpiiwpritQ Hi it rnntenHer! tHnf tH.^ were .... ---- 7 ---- V/VV VI V not held in chambers for convenience, but that the Originating Summons clearly stated that the matter was to be in chambers and therefore the Ruling which resulted from same was delivered in chambers and needed leave of Court before appealing. Mrs. Mbaluku, further submitted that Section 24(e) of the Supreme Court Act, though gives exceptions as to what orders made in chambers may be appealed against without leave of Court; this particular matter does not fall under the exception. She submitted that the exception relates to special case stated, but (432) appeals are incompetent and should therefore be dismissed with costs. We have considered the two Rulings, the arguments and the submissions on the preliminary issues raised. At the outset, we must state that Rules of the Court are intended to assist in the. proper and orderly administration of justice. And as such, they must be strictly followed. We have nerused the Record of A "TippI Vvre are satisfied that the Plaintiff’s Application to set aside the Arbitral Award was a chamber matter. Equally, the Ruling of 10th October, 2008 that resulted from the Application was also a chamber matter. Section 24(l)(e) of the Supreme Court Act states as follows: “No Appeal shall lie:- (e) from an order made in chambers by a Judge of the High Court................. without leave of the Judge or, if that has been refused, without the leave of a Judge of the Court”. (433) The word “shall” as used in the Section connotes that the obtaining of leave is mandatory. According to the Record of Appeal, the Ruling of the High Court was made on 10th October, 2008. On 27th November, 2008, the Court delivered another Ruling in chambers refusing the Defendant’s Application for leave to appeal to the Supreme Court against the Ruling of 10th October, 2008 and refusing a stay of execution of that Ruling and the Arbitral Award. Thereafter nri Sth nppprnhpr onQg the Def end ant without obtaining leave of the Supreme Court, filed Notice of Appeal against the Rulings of 10th October, 2008 and that of 27th November, 2008, followed by a Memorandum of Appeal containing grounds of appeal relating to only the Ruling of 10th October 2008 and not the Ruling of 27th November, 2008. In other words, while leave was granted to appeal against the Ruling of 27th November, 2008, there was no Memorandum of Appeal against the Ruling of 27th November, 2008. And there was no leave to appeal against the Ruling of the 10th of October, 2008. (434) Thus, in so far as the Ruling of 10th October is concerned, there was no leave to appeal contrary to Section 24(1 )(e) of the Supreme Court Act. As for the Ruling of 27th November 2008, the Court granted leave to appeal; but while the Defendant filed the Notice of Appeal, ■ they did not file a Memorandum of Appeal, contrary to Rules 58(1 )(2) 4 (d) and 70(1 )(2) of the Supreme Court Rules which require the filing of the Memorandum of Appeal and the Heads of Argument, respectively. Both Rules use the word “shall”. It follows that there being no leave to appeal against the Ruling of 10th October 2008, the appeal is incompetent. And there being no Memorandum of Appeal for the Ruling of 27th November, 2008, then the Record of Appeal has not been drawn up in the prescribed manner. It is also incompetent. Mr. Forrest argued in the Alternative that this case falls within the provisions of Section 24(e)(v) of the Supreme Court Act relating to an order on a special case stated under any law relating (435) to Arbitration where no leave to appeal is required. We have considered this argument. Our short answer is that this is not a special case stated. The application was by way of Originating Summons to be heard in chambers. This alternative argument does not apply and does not assist the Defendant at all. Following upon our decision in the Ramnsley(1) case and in the Patel case*21, both appeals are incompetent and are accordingly dismissed with costs to he taved in default of agreement E. L. SAKALA CHIEF JUSTICE ............................................................. P. CHITENGEX SUPREME COURT JUDGE H. CHIBOMBA SUPREME COURT JUDGE 13