Richwell Siamunene v Collins Mazuba (in his capacity as administrator of the estate of the late Bernard Mazuba) and Anor (CAZ/08/126/2019) [2019] ZMCA 391 (8 November 2019)

1-, b IN THE COURT OF APPEAL OF ZAMBIA CAZ/O8/126/2019 Rl HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: RICHWELL SIAMUNENE AND --, .. _ _..,,_ f( LB WV 2,'::J:l_li ~V;L REG;srffi' 2 ~ LLLANT ·G ,.~- - - - - , • -~ ... ,. ',( ~)(J' r-: . __.;,-- COLLINS MAZUBA (in his capacity as administrator 1 8 T RESPONDENT Of the estate of the late Bernard Mazuba) HAMINI MATIMBA 2ND RESPONSENT Before the Hon. Mrs. Justice P. C. M Ngulube in Chambers For the Appellant: Mrs. Sako, Messrs Malambo & Company For the Respondent: No appearance RULING Legislation referred to: 1. Court of Appeal Act No 7 of 2016 2. The Court of Appeal Rules, Statutory Instrument Number 65 of 2016 3. The Supreme Court Practice, White Book 1999 Edition. Cases referred to: - 1. S. P. Mulenga Associates International and Chainama Hotel Limited v First Alliance Bank (z) Limited [2012] ZMSC 40 2 . Naher Investments Limited V Grindlays Bank Limited (1984) ZR 81 3. Access Bank (Zambia) Limited V Group Five/ ZCON Business Park Joint Venture [2016] ZMSC 24 R2 This is the 1st respondent application for a notice to raise preliminary issues pursuant to section 8 (1) (2) (a) of the Court of Appeal Actl and Order 10 Rules 6 and 7 of the Court of Appeal Rules2 as read together with Order 14A rules 1 and 2 of the Rules of the Supreme Court3. The application is supported by heads of arguments filed into court on 23rd August 2019. The backdrop leading up to this application is that the appellant caused to be filed a Notice and Memorandum of Appeal on 13th May, 2019 against the Ruling of the Court below delivered on 22nd September, 20 16. On 27th June, 2019, the appellant made an application for an Order for consolidation of this matter with another matter under cause No CAZ/08/312/2018. After so doing, the appellant failed or neglected to file his record of appeal and heads of argument. In the heads of arguments, the 1st respondent raised the following issues on the point of law- 1. That leave has not b een sought by the appellant to extend time within which to file the record of appeal and heads of argument out of time; R3 2. That the record of appeal and heads of argument have not been filed within 60 days of filing the notice and memorandum of appeal which were filed on 13th May, 2019. It was submitted that this appeal is defective as it offends Order 10 Rule 6 and 7 and Order 13 Rules 2,3,4,5,6 of the Court of appeal Rules. It was submitted that the Rules of this Court are clear that it is mandatory that the Record of Appeal and Heads of Argument must be filed into court within 60 days of filing the notice and memorandum of appeal. Further that the law requires that where the record of appeal and heads of arguments are not filed within 60 days, the whole appeal becomes defective and incompetent in the absence of an Order granting leave to file the record of appeal and Heads of argument out of time. It was contended that the non-filing of the record of appeal and heads of argument within the specified time is fatal to this appeal and as such ought to be dismissed. It was also contended that this is not a case in which this court may exercise its discretion to allow the regularizing of the appeal as failure to file the record of appeal and heads of argument is a fundamental breach which goes to the jurisdiction of this Court to hear the a ppeal. R4 In summation it was submitted that being out of time, and there being no application before court to file the record of appeal and heads of argument out of time, the appeal has in fact not been lodged as envisioned by Order 10 Rules 6 and 7 of the Rules of this Court and as such this Court is constrained from entertaining any interlocutory applications such as the one currently before it for consolidation of appeals as to do so would be in furtherance of a defective appeal and highly irregular. This court was urged to dismiss the appeal for want of prosecution and irregularity. On the day of hearing of this application, Mr. Masambo, Counsel for the appellant informed the Court that h e had been unwell and as such was unable to respond to the 1s t respondent's application. He sought the indulgence of the Court to grant him an adjournment so that he could file a response. The Court adjourned the matter to 16th September, 2019 for hearing. On the said date, the appellant and his Counsel were not in attendan ce and neither had the response been filed. On behalf of the 1s t respondent, Ms. Sako submitted that leave to file the record of appeal and heads of argument out of time was not sought within the 60 days. She stated that up to date the two documents have RS not yet been filed making the appeal defective . She prayed that this appeal be dismissed. I have considered the application before this Court together with the supporting arguments. I have also taken a look at the Judgment set to be assailed and I have taken into consideration the circumstances surrounding this appeal. It seems to me that the issue to be determined herein is wh ether the appellant sat on his right to prosecute this appeal and if so, what is the effect. In this case, the record shows that the notice of appeal and memorandu m of appeal were filed on 13th May, 20 19 and since then, there has not been any application by the appellant to extend time or an application to file record of appeal and heads of argument out of time. It is clear that the record of appeal and heads of argument ought to have been properly filed 60 days after filing the notice and memorandum of appeal which was on 13th July, 2019. Order 10 Rule 7 1 of the Cour t of Appeal Rules provides that- "lf an appeal is not lodged within the time stipulated under rule 6, the respondent may make an application to the court for an order dismissing the appeal for want R6 of prosecution, or alternative, for such other order with regard to the appeal as the respondent may require." In th e case of S. P. Mulenga Associates International and Chainama Hotel Limited v First Alliance Bank (z) Limited1 the Supreme Court held that- "The Appellants sat on their rights by failing to obtain leave to appeal out of time against the Judgment of 31st March, 2006 and they cannot blame anyone for the predicament that they find themselves in. We have said time and again that Rules of Court are there to be observed and litigants who choose not to abide by the said rules do so at their own peril." Furthermore, in the case of Naher Investment Limited case2 the Supreme Court held that- " Appellants who sit back until there is an application to dismiss their appeal before making their own application for extension of time, do so at their own peril." The court is cognizance of the fact th at in the interests of justice matters should be allowed to be disposed off on their merits. In line with this principle the Supreme Court made the following observations in the R7 cas e of Access Bank (Zambia) Limited V Group Five/ ZCON Business Park Joint Venture3 "we have in many cases consistently held the view that it is desirable for matters to be determined on their merits and in finality rather than on technicalities and in piece meal. We reaffirm this position. Matters should, as much as possible be determined on their merits rather than be disposed on technical or procedural points. This, in our opinion, is what the ends of justice demand. Yet, justice also requires that this court, indeed all courts, must never provide succor to litigants and their counsel who exhibit scant respect for rules of procedure. Rules of procedure and timeliness serve to make the process of adjudication fair, just, certain and even-handed. Under the guise of doing justice through hearing matters on their merits, courts cannot aid in the bending or circumventing of these rules and shifting goal posts, for while laxity in application of the rules may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules". R8 The appellant having not made an application to extend time within which to file the record of appeal and heads of argument, s lept on his rights, allowing the 1st respondent to file an application to dismiss the appeal. The effect of so doing has been well articulated by the Supreme Court in the a b ove cit ed case. Appellants have been urged time and again to rem ain vigilant of their matters and make n ecessary a pplications timely. Under t h e guise of doing justice through h earing m atters on their merits i cannot a id in the bending or circumventing of Court rules and shift goal posts, for while laxity in application of the rules may seem to aid one side, it will unfairly harm the respondents herein who strives to abide by the rules. The appellant's appeal is accordingly dismissed for want of prosecution with costs. Dated this the day of November, 2019. - ~ HONOURABLE MRS JUSTICE P. C. M NGULUBE COURT OF APPEAL JUDGE.