Philip K. R. Pascall and Ors v ZCCM Investments Holdings Plc (APPEAL NO. 92 OF 2018; CAZ/08/45/2018; CAZ/08/46/2018) [2018] ZMCA 601 (3 October 2018)

,. IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 92 OF 2018 HOLDEN AT LUSAKA ( Civil Jurisdiction) BETWEEN: PHILIP K. R. PASCALL ---··---- c 1 C~T 2018 ARTHUR MATHIAS PASC CLIVE NEWALL MARTIN R. ROWLEY (CAZ/08/45/2018 and CAZ/08/46/2018 -Consolidated) 1 stAPPELLANT 2 nd APPELLANT 3 rd APPELLANT 4 th APPELLANT FIRST QUANTUM MINERALS LIMITED 5 th APPELLANT FQM FINANCE LIMITED 6 th APPELLANT AND ZCCM INVESTMENTS HOLDINGS PLC RESPONDENT CORAM:Chashi, Lengalenga and Siavwapa, JJA ON: 22ndAugust and 3 rd October 2018 For the 1st, 2 nd, 3 rd and 4 thAppellants: (1) M. M. Mundashi, SC - Messrs Mulenga Mundashi Kasonde Legal Practitioners. (2) S. Chisenga,MessrsCorpusLegal Practitione rs. For the 5 th and 6 th Appellants: (1) S. Sikota SC, M essrs Central Chambers (2) K. Khanda, Messrs Central Chambers For the Respondent: (1) B. C. Mutale, SC, Messrs Ellis and Company (2) Dr. J. Mulwila SC, Messrs ! tuna Partners (3) L. Mbalashi - Deputy General Counsel - In-house -R 2- (4) M. Mukuka, Messrs Ellis and Company RULING CHASHI, JA delivered the Ru ling of the Cou rt. Cases referred to: l. Elder Moonga and Others v National Institute of Scientific and Industrial Research - CAZ/ 08/018/2016 (Unreported) 2. Philip Mutantika and MulyataSheal S . v Kenneth Chipungu - SCZ Judgment No. 13 of 2014 3. Stanbic Bank Zambia Limited v Savenda Management Services Limited - CAZ/08/40/2016 4. Nahar Investments v Grindlays Bank International (Z) Limited (1984) ZR, 81 5. Access Bank (Zambia) Limited v Group Five/Zcon Business Park Joint Venture (Suing as a firm) - SCZ/ 8 / 52/2014 6. Zambia Revenue Authority v Charles Walumwenya Mahau Mabiye - SCZ Appeal No. 56 of 2011 7. Socotec International Inspection (Zambia) Limited v Fina nce Bank - SCZ Appeal No . 149 of 2011 Legislation referred to: l. The Court of Appeal Rules, 2016 2 . The Court of Appeal Act, No. 7 of 2016 3. The Supreme Court Act, Chapter 25 of the Laws of Zambia This is an application for dismissal of the appeal, pursuant to Order 10 of The Court of Appeal Rules (CAR)1. The application was originally scheduled before a single Judge of this Court, who eventually referred it to the full bench. The application by the Respondent was made by way of summons, accompanied b y an affidavit, Respondents arguments and list of authorities. -R 3- The Respondent, alleged that there has been failure on the part of the Appellants to comply with Order 10/9 (5) (b), (c) and (d), Order 10 / 9/ (7), Order 10 /9 ( 14) and Order 10 / 17 (2) CAR. According to the affidavit deposed to by Lombe Mbalashi, In-house Counsel, upon perusal of the consolidated record of appeal (the record), he noted the following anomalies: (1) The cover of volume one of the r ecord 1s not signed by the Advocates in appeal No. CA/08 / 46 / 2018. (2) The record does not contain the Registrar's certificate of record in appeal No . CA/08 / 46/2018. (3) The record does not contain the Advocates certificate 1n appeal No. CA/08/46/2018. (4) The index of the record is in both volumes one and two of the record. (5) Volume one of the record does not contain a notice of appeal in appeal No. CA/ 08/46/2018. (6) Volume one does not contain the memorandum of appeal in appeal No. CA/08/46/2018 In the Respondent's written arguments , our attention was drawn to the provisions of Order 10 / 9 CAR which sta tes the following: "(SJ The record of appeal shall contain the following documents in the order in which they are s et out: - (a) a complete index of the evidence and the proceed ings and documents in the case showing the pages at which they appear. (b) a certificate of record signed by the Regis trar. .. -R 4- (c) the notice of app eal together with a copy of the order granting leave to appeal where appropriate. (d) the memorandum of appeal; (7) where the record of appeal compnses more than one volume, the index shall appear in the first volume only (14) A copy of the record s hall be certified by the appellant or the appellant's practitioner, or if p repared by the Registrar, by the Registrar." Our attention was further drawn to Order 10 / 17 (2) CARwhich states as follows: "If the record of appeal is not prepared in the prescribed manner, the appeal may be dismissed." According to the Respondent, the record offends the prov1s10ns of Order 10 /9 CAR which are couched in mandatory terms. The case of Elder Moonga and Others v National Institute of Scientific and Industrial Research 1,a decision of this Court was cited , where we relied on the decision of the Supreme Court, in the case of Philip Mutantika and MulyataSheal S . v Kenneth Chipungu2where it was held that: "The provisions cited by the respondent are couched in mandatory manner as each uses the word "shall". The two Rules therefore are not regulatory as they do not at all give the court discretionary power. The Rules provide ... as follows: "58 (5) The appellant shall file ... " , I -R 5- "Clearly from the above, any breach of Rule 58 (5) is fatal to a party's appeal. " On our part, we have always understood the need for parties to strictly adhere to the Rules of the Court and that failure to comply can be fatal to a party's case. This is the position we took in NFC Africa Mining Plc v Techro Zambia Limitedin which we made it clear that litigants who fail to strictly adhere to the rules of the Court risk having their appeals being dismissed and we dismissed the appeal in that case." It h as been argued t h a t , notwithstanding the glaring defects in the record, and the position of the law on the requirement for an appellant's strict compliance with rule s of Court, the Appellants have failed to take procedural steps to cure th e defects. Referen ce was made to Order 10/ 10 (4) CAR which provides that; "Where a document referred to in a record of appeal, in accordance with rule 9, is omitted from the record of appeal, the appellant may, with leave of Court, within fourteen days of lodging the record of appeal, file a supplementary record of appeal." In opposing the application , the Appellants filed an affidavit 1n opposition together with skeleton arguments. According to the affidavit d eposed to by Kenneth Khanda, Co-Counsel for the Appellants, it was asserted that volum e one of t h e record is not signed by the Advocates in Appeal No. CAZ/08/46/2018 because -R 6- the appeal is consolidated and therefore the endorsement by the Co Advocates, Messrs Mulenga Mundashi and Kasonde Legal Practitioners is sufficient for the competence of the record. As regards the absence of the Registrars certificate of record in appeal No. CAZ/08/46/2018, it was asserted that, it is of no relevance that such be on record, as what was placed thereon is a consolidated certificate of record which covers both appeal No. CAZ/08/45/2018 and CAZ/08/46/2018. That, therefore there is no breach in this regard as by consolidation by consent dated 24 th May 2018, the two appeals are now under one appeal, being Appeal No. 92 of 20 18. On the omission of the Advocates certificates in appeal No . CAZ/08/46/2018 again it was asserted that it is immaterial as the appeal is a consolidated one. As regards the inclusion of the index of the record in volume two, it was asserted that it can simply be expunged and that will not occasion prejudice on the Respondent. On the omission of the notice of appeal and memorandum of appeal in respect to appeal No. CAZ/08/46/2018, it was deposed that the same can be cured as both documents were filed and served on the Respondent and receipt thereof was acknowledged and therefore , no prejudice will be occasioned by curing the omission by allowing the Appellants to include the said documents on record. That similarly, the omission of the memorandum of appeal for appeal No. CAZ/08/46/2018 can be cured as the same was filed before Court. -R 7- In their written arguments, the Appellants were in agreement with the Respondent that the r ecord ought to be in the manner prescribed in Order 10/9 CAR. It was however the Appellant's position that, what is of material significance in determining the application before the Court is what is provided for under Order 10 / 1 7 which provides as follows: "17 (1) The Court or a Judge may at any time allow amendment of a notice of appeal, respondents notice, memorandum of appeal or other part of the record of appeal on such terms as the court or Judge thinks fit, and may make any such amendment of its own motion. (2)If the record is not prepared in the prescribed manner, the appeal may be dismissed." According to the Appellants , the Court has discretion to make an Order for amendment as provided. That wh ereas, it is mandatory for the record to be in the form prescribed, the same is subject to the Court's discretion to Order amendment thereof at any time if the record is not accordingly prepared. Further that, Orderl0 / 17 (2) is couched in a discretionary manner. The Court therefore h as power to determine which avenue to take between Order 10 / 1 7 ( 1) and Order 10 / 1 7 (2). That in the circumstances of the matter before the Court, the Court ought to be p ersuaded to invoke Rule 17 (1) and Order amendments. In as far as the case of Elder Moonga and Others 1 is concern ed, it was argued that the same can be distinguished from the case at hand , in that, what -R 8- was 1n dispute in that case was the om1ss1on of, or filing of a m emorandum of appeal on time. That the relevant provision for consideration was Order 10 / 3 (9) , CARwhich provides that: "A notice of appeal, together with the memorandum of appeal, shall be lodged and served, within, a period of fourteen days, on all parties directly affected by the appeal or on their practitioner." That in the Court's determination, the m emorandum of appeal on the record lacked evidence to show that it was filed in the court below. The one b efore the Appellate Court did have a d ate stamp, which was clearly out of the stipula ted time. Therefore, the Court had no choice but to dismiss the appeal. It was argued that in casu, the Notice and Memorandum of appeal were filed before the Court in time and that was not in dispute. What is in issue is the form of the record. Further according to the Appellants , they did not sit b ack, they sought to r ectify the record by making an a pplication to am end the record, which is one of the avenues of curing a d efective record. At the h earing of the application, Mr. Mutale , State Counsel, indicated that the Respondent will rely on the summons, affidavit in support, s k eleton arguments and list of a uthorities. State Counsel submitted tha t , the irregularities in the record are in breach of the mandatory p rovisions of the Court of Appeal Rules in p articular Order 10. He s ubmitted that the Appellants h ave m a d e numerous errors in the r ecord which cannot b e cured by any m eans -R 9- whatsoever, other than calling on this Court to make an Order dismissing the appeal in compliance with the established set of authorities contained in the list of authorities. In response, Mr. Mundashi, State Counsel, submitted that the 1st, 2 nd,3rd and 4 th Appellants are opposing the application and in doing so, are relying on the affidavit in opposition and skeleton arguments. According to State Counsel, there are six items which are supposed to be the fatal infractions and they refer to CAZ/08/46/2018 which is in respect to the first four Appellants. That it is not in dispute that the items that have been referred to in the Respondent's affidavit are not in the record. That it is also not in dispute that Order 10/9 prescribes the circumstances and the documents to be included in the record as well as the fact that the provisions are couched in a mandatory manner. According to State Counsel, what is in issue, is what happens if there is non-compliance in the manner in which a record should be filed. He submitted that, the answer is to be found in Order 10 / 17 (2) CAR, which states that if the r ecord is not prepared in the prescribed manner, the appeal may be dismissed. It does not state that the appeal shall be dismissed, which suggests that the Court has a discretion. State Counsel drew our attention to the case of Stanbic Bank Zambia Limit e d v Savenda Man age m e nt Services Limited3in which we came to the conclusion that the Court has the discretion to allow the curing of the notice of appeal which was not filed in time notwithstanding Section 25 of The Court of Appeal Act(CAA)2 . That in the said decision, we pointed out that it is inappropriate to uplift the ratio d ecidendiof the -R 10- Court in one case with its own peculiar facts dealing with a specific issue and rules and its effects and apply it to another case. State Counsel submitted that the infractions in this case, are neither m aterial nor fatal that the Court cannot exercise its discretion under Order 10 / 17 (2 ) CAR. That these are issues which are curable. Mr. Sikota, State Counsel, in agreeing with Mr. , Munda shi, submitted that there are several things that can b e done , rather than to dismiss the a ppeal. That the rules provide for amendment, even at the Courts own motion, without even the need of an a pplication from the parties. That the other avenue is applying for filing of a supplementary record of appeal. State Counsel submitted that, if the rules meant to say that once something is missing from the r ecord, the appeal must be dismissed, they would h ave stated so. Therefore, dismissal is not the only option availa b le. According to State Counsel, no prejudice will b e caused to the Respondents by allowing amendments to the record as the documents which are missing were filed and served on the Respond ents. In reply, Dr. Mulwila, State Counsel submitted that the wording of Order 10/ 17 (2) CAR gives the Court power to dismiss an appeal, wh en the record is not prepared in the prescribed farm as was d one in the Elder Moonga 1case, where there was only one infraction as compared to the six in this case. That in casu, there is n o option but to dismiss the appeal. We were then referred to the case of Nahar Investme nts v Gri ndlays Bank International (Z) Limit ed4 where the Supreme Court statedthat a party does not h ave to wait until the -R 11- other party h as come to Court and then frantically start asking for leave to make amends. That you delay at your own peril. It was submitted that with all transgressions, the record 1s unacceptable and dismissible. We h ave considered the affidavit evidence, skeleton arguments and the submission before us. It is not in dispute that the record is defective to the extent outlined by the Respondent in the affidavit in support of the application to dismiss the appeal. That is in fact conceded by the Appellants. It is also common cause that Order 10 /9 (5) CAR is couched 1n a mandatory manner and should therefore be complied with in the preparation of the record. What is in issue is what h appens when there is noncompliance; when the record is not prepared in the prescribed manner as required by Order 10/9 (5) CAR. The answer as submitted by the Appellants , is to be found in Order 10 / 17 (2) CAR as earlier alluded to, which provides that if the record is not prepared in the prescribed manner, the appeal may be dismissed. That provision gives this Court, judicial discretion and the rules go on to make provisions on how amends can be made. It does not therefore follow that every breach of Order 10 / 9 (5) shall be followed or visited by sanction of dismissal of the appeal. In our view, each case turns on its own facts. In the Stanbic Bank Zambia Limited3 case at page J27 , we observed as follows: -R 12- "It is rendered clear that each application will be considered on its own facts. It is thus inappropriate to uplift the ratio decidendi of the Supreme Court in one case with its own p eculiar facts dealing with a specific rule and apply it to all cases in a regimented manner regardless of the applicable rule/ rules." Equally, in the case of Access Bank (Zambia) Limited v Group Five/Zcon Business park Joint Venture (Suing as a firm) 5 , Malila, JS at page 27 made the following observation: "It is plain that whether or not an appeal is to be dismissed under that rule is to be taken on a case to case basis ... this invariably implicates the exercise of judicial discretion. Since fa cts of two cases are never always the same, a Court cannot be bound by previous decisions to exercise discretion in a regimented way because that would be as it were, putting an end to discretion." Reference in this matter was mad e to our decision in the case of Elder Moonga and Others 1 in which the Supreme Court case of Philip Mutantika and Another2 was cited. Th ese cases 1n our view are distinguishable from the case at hand. In Philip Mutantika and Another2 , th e Supreme Court was consid ering the provisions of Rule 70 (1) of The Supreme Court Rules (SCR) and Rule 58 (5 ) as amended b y Statutory Instrument No . 26 of 2012 , which require the filing of the r ecord of appeal together with th e h eads of argument and opined t h at the provisions are couched in a mandatory manner. They went on to state that any breach of Rule 58 (5) is fa tal to a party's a ppeal. -R 13- In the Elder Moonga and Others 1case , the issue raised was that the memorandum of appeal was not filed before the Registrar of the High Court and thereby rendering the appeal fatally defective , such that the Court has no jurisdiction to hear it. In that case, we found that the memorandum of appeal was not filed in the High Court, but was filed directly into the Court of Appeal and as such breached Order 10/3(5) CAR. Following the Philip Mutantika and Another2case, we were of the view that the rule does not give the Court discretionary power as it is mandatory and therefore the breach is fatal to the appeal. The two above stated cases had nothing to do with the competence of the record of appeal and in addition the Courts hands were tied as the Court had no discretion to exercise, as such they were mandated to dismiss the appeals. In casu, as earlier alluded to , we are dealing with the competence of the record and Order 10 / 17 (2) requires of us to exercise judicial discretion in d ealing with the consequences of a breach. We are mindful that, in exercising judicial discretion , the Courts have in some cases dismissed the appeals on account of an incompetent or defective record of appeal. In the Access Bank (Zambia) Limited5 case, the Supreme Court came to the conclusion that the r ecord was defective in material respects and that the defects were so fundamental that they completely negated the rules on prepara tion of record of appeal and accordingly dismissed the appeal. In that case, they also made reference to the case of Zambia Re v e nue Authority v Charles Walumwe nya Mahau Mabiye6 , -R 14- 1n which they dismissed the appeal under Rule 68 (2) SCR as the irregularities went to the root of the appeal. We note that the Su preme Court also made reference to the case of Socotec International Inspection (Zambia) Limited v Finance Bank7 , in which th ey allowed the appellant whose record had omitted certain documents to amend the record. In doing so, th ey went on to state that: "Whether the appeal will be dismissed or not, will depend on the peculiar circumstances of each case." It is evident in this case that the transgressions were occasioned by the consolidation of the two appeals, as a result of which certain omissions were made which resulted in the breach of the rules. The omissions are however in our view, not so fundamental and neither do they go to th e root of the appeal. The lack of signatures by the other Appellant's Advocates is an omission which is curable; so is the in dex to the consolidated record of appeal (volume two). We are also of the view that as regards the missing notice of appeal and the memorandum of appeal, these were filed into court and it is not disputed that th ey were served on the Respondent, and as such they are aware of the contents and the Respondentwill not in any way be prejudiced by th e filing of a consolidated supplementary record of appeal. In the view that we have taken, th is 1s not an appropriate case for Ordering the d ismissal of t h e appeal. The Appellants are accordingly Ordered to take the necessary steps as outlined above within the next fourteen (14) days from the date hereof, by way of amendment of the -R 15- consolidated records of appeal and filing of a consolidated supplementary record of appeal. For purposes clarity, the Appellants are Ordered to retrieve copies of the record and ensure that the firm of Messrs Central Chambers append its signature, since this is a consolidated appeal. However, there is no need for two separate Registrars certificates of the record. The index in volume two shall be removed as it 1s accordingly expunged. The missing doc me ts shall be filed by way of a consolidated supplementary recor eal. e Appellants. J . CHASHI COURT OF APPEAL JUDGE F . M. LENGALENGA COURT OF APPEAL JUDGE M. J . SIAVWAPA COURT OF APPEAL JUDGE