Chinika Medical Cemtre Limited v Alexandre Ivanovich Nikichaev (CAZ/08/192/2019) [2019] ZMCA 372 (1 November 2019)

IN THE COURT OF APPEAL OF ZAMBIA AT THE APPEAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/08/192/2019 ALEXANDRE IV ANOVICH NIKICHAEV RESPONDENT Before: Hon. Mr. Justice D. L. Y. Sichinga in Chambers On the 1st day of November, 2019 For the Applicant: Mrs. L. Mushota and Mrs. A. Kaonga of Messrs Mushota and Associates For the Respondent: Mr.. L. Mudenda of Mesdames Theotis Mataka and Sampa Legal Practitioners RULING Authorities referred to: 1. Rules of the Supreme Court of England, 1999 Edition 2. Court of Appeal Act No. 7 of 2016 of the Laws of Zambia 3. Court of Appeal Rules, Statutory Instrument No. 65 of 2 016 This is a Ruling for the applicant's application to raise preliminary issue against the respondent's Notice of Motion to raise preliminary issues filed on 12 th August, 2019. The applicant's application was made pursuant to Order 33 Rule 3 Rules of the Supreme Court of England, 1999 Edition 1 . Mrs. Mushota submitted on behalf of the applicant that the respondent had cited incorrected orders in his Notice of Motion which have no relationship with Section 25 of the Court of Appeal Act 2 . She contended that the Order 10 cited does not state the rules relied u p on but merely cites sub rules. Order 13 is also relied upon, but does not state the rule relied upon. As such, Mrs. Mushota submitted that the Notice of Motion was not properly before this Court. In response, Mr. Mudenda, counsel for the respondent took the view that the issues raised could have been addressed by the applicant in response to the respondent's Notice of Motion. Counsel submitted that the Notice of Motion was raised in a ccordance with Order 14A Rule 1 and Order 33 Rules 3 and 7 of the Rules of the Supreme Court (White Book) which provisions give the r espondent the avenue to move this Court on points of la w at a n y stage. Counsel was of the view that Mrs. Mushota's observa tions could not -R2- stand and prayed that the applicanf s preliminary issue 1s dismissed. In reply, Mrs . Mushota referred to the Court to Practice Direction dated 16t h July., 2002 which requires that any application made wiH cite the Order, Rule and Act pursuant to which it is made . She contended that failure to cite the correct order renders the application invalid before Court. I have considered the application and the submissions by counsel. As far as I can ascertain, there is no dispute that Order 14A Rule 1 and 33 Rule 3 a .nd 7 of the Rules of the Supreme Court give authority to a party to raise any question or point of law at any stage of the proceedings. That is not the applicant's challenge. The contention is that the provisions of O:rder 10 and 13 of the Court of Appeal Rules , as cited in the Notice of Motion, do not relate to Se,ction 25 of the Court of Appeal Act which provisions the respondent relies upon in his application. There was an omission in citing the appropriate rules of the Court. Practice Direction No.1 of 2002 to which Mrs . . Mushota referred provides as follows: -R3- "All applications brought to Court should indicate the Act and section or ord'er which the application is brought failure, which the applicati.on shall not be accepted for filing or entertained" Given the above, the view I take is that the respondent's Notice of Motion ought not to have been accepted by the registry for citing the incorrect rules of this Court. The omission is however, not fatal in my view. I therefore grant leave to the respondent to amend the Notice of Motion filed on 12th August, 20 19 before the same is entertained by this Court. I direct the respondent to do so within 14 days of this ruling. The applicant's application to raise preliminary issue is therefore allowed, with costs to the applicant, to be taxed in default of agreement. -R4-