Tambana Mulenga v Mwape and Ors (Appeal 183 of 2015) [2018] ZMSC 566 (8 June 2018)

JI IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA Appeal No.183/2015 APPELLANT 1st RESPONDENT 2nd RESPONDENT 3RD RESPONDENT 4th RESPONDENT PETER MWAPE GODFREY MULOPU CHARLES MBULO OLIVERT AND OTHERS (Being sued as Chairman, Disciplinary Chairman Vice Chairman, Secretary and Committee Members Respectively of the Kabulonga and UTH Route Committee of Drivers at Kulima Tower Bus Station) CORAM: Wood, Kajimanga and Musonda JJS On 5th June 2018 and 8th June 2018 FOR THE APPELLANT : No Appearance FOR THE 1st RESPONDENT : No Appearance FOR THE 2nd RESPONDENT : No Appearance FOR THE 3rd RESPONDENT : No Appearance FOR THE 4th RESPONDENT : No Appearance JUDGMENT Kajimanga, JS delivered the judgment of the court Legislation referred to: J2 Rules of the Supreme Court, Chapter 25 of the Laws of Zambia, Rule 71(1) When this appeal came up for hearing on 5th June 2018, there was no appearance by all the parties. The Court Register showed that the parties’ advocates namely Mesdames Mushipe & Associates and Messrs Legal Aid Board respectively, were served with the notice of hearing on 19th April 2018. We are therefore, satisfied that there was proof of service. Rule 71(1) of the Rules of the Supreme Court, Chapter 25 of the Laws of Zambia enacts as follows: “Subject to the provisions of rule 69, if on the day fixed for the hearing of an appeal - (a) the appellant does not appear in person or by practitioner, the appeal may be dismissed; (b) the appellant appears, and any respondent fails to appear either in person or by practitioner, the appeal shall proceed in the absence of such respondent, unless the court for any sufficient reason sees fit to adjourn the hearing; (c) no party appears either in person or by practitioner, the appeal may be adjourned, struck out, or dismissed.” J3 Rule 71(1) (c) specifically applies to this appeal. Under this rule, this Court has discretion to either adjourn, strike out or dismiss an appeal when there is no appearance by both parties to an appeal. We stated earlier in this judgment that there was proof of service on the legal representatives of the parties. In the circumstances, we consider that it would be appropriate for us to exercise our discretion by dismissing this appeal and it is so ordered. We however, make no order as to costs. A. Mi WOOD SUPRME COURT JUDGE C. KAJIMANGA SUPREME COURT JUDGE M. MUSONDA, SC SUPREME COURT JUDGE