Sakala & Another v Fert Seed and Grain (PVT) Limited & Another (Appeal 85 of 2015) [2015] ZMSC 57 (9 September 2015)

J1 Appeal No. 85/2015 1ST APPELLANT 2ND APPELLANT IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: GITRINE N. SAKALA LEWIS NCUBE AND FERT SEED AND GRAIN (PVT) LIMITED 1ST RESPONDENT SYNERGY COMMODITIES ZAMBIA LTO. 2ND RESPONDENT Coram: Chibomba, Hamaundu and Kaoma, JJS. On 2nd September, 2015 and on 91h September, 2015 For the Appellant: - Mr. R. M. Mainza, of Messrs R. M. Mainza and Company. For the 151 Respondent: - Mr. A. J. Shonga, Jr., S. C., and Mr. S. M. Lungu, both of Messrs Shamwana and Company. For the 2nd Respondent: - No Appearance JUDGMENT Chibomba, J. S, delivered the Judgment of the Court. Cases referred to: 1. NFC Africa Mining PLC vs Techro Zambia Limited (2009) Z. R. 239 2. Zambia Telecommunications Limited vs Muyawa Liuwa SCZ No. Company 16 of 2002 3. A. T. Tyetye Enterprises vs Vutiwe Yolamu, Lina Yolamu, Njeleka Yolamu and Martha Mushipe Appeal No. 156/2010 Materials referred to: J2 1. Supreme Court Act, Chapter 25 of the Laws of Zambia 2. High Court Act, Chapter 27 of the Laws of Zambia 3. and General Provisions Act, Chapter 2 of Interpretations Zambia. the Laws of The Appellants appeal against the order of the High Court, at Lusaka, dated 9th April, 2015 in which the learned Judge ordered that the Appellants' application for interpleader stands dismissed as per his earlier order of 30th January, 2015. The history of this matter is that the 151 Respondent, a company incorporated in Zimbabwe, sued the 2nd Respondent, a company incorporated in Zambia, for breach of contract and for refund of the sum of US$35,720.00 on account of the 2nd Respondent's failure to deliver part of the maize purchased by the 15t Respondent. The 2nd Respondent having not entered appearance, the 151 Respondent entered judgment in default of appearance and issued a Writ of Fieri Facias, the fifa. The Sheriff of Zambia executed the fifa on the matrimonial home of the Appellants and property was seized. The 2nd Appellant was a director in the 2nd Respondent company while the 151 Appellant is a spouse of the 2nd Appellant. Following this execution, the 15lAppellant, on 2ih November, 2014, issued an interpleader Summons and applied for stay of the sale of the seized property. The interpleader '. Summons was given a return date of 30th January, 2015. However, on 28th J3 November, 2015 the 1st Appellant filed a Notice of withdrawal of the interpleader Summons. On 30th January, 2015 the Appellants and their Advocates, as well as the 1st Respondent did not attend Court. The learned Judge struck off the interpleader Summons due to none attendance of the parties with liberty to restore within 14 days and in default thereof, the interpleader would stand dismissed. On 11th March, 2015 the Sheriff of Zambia issued interpleader Summons which was returnable on 9th April, 2015. When the matter came up on that day, the learned Judge ruled that the application stood dismissed pursuant to his earlier order of 30th January, 2015. Dissatisfied with this decision by the learned Judge, the Appellants appealed to this Court raising one Ground of Appeal in the Memorandum of Appeal as follows:- "1. in law when That the learned trial Judge misdirected himself the Interpleader Summons returnable he declined to hear before him on 9th April, 2015 and proceeded to make an Order to the effect Interpleader stands dismissed as per Order of the Court of 30th January, 2015 in Interpleader Summons filed on the face of the evidence that the 26th November, 2014 was withdrawn on 28th November, 2014." the Application that for '. J4 When the Appeal was called for hearing, the learned Counsel for the 1st Respondent, Mr. Shonga, Jr., S. C., informed the Court that the 1st Respondent had, on 24th August, 2015, filed a Notice of Preliminary Objection pursuant to Rule 19 of the Supreme Court Rules (SCR), Chapter 25 of the Laws of Zambia which he requested the Court to hear and determine before proceeding to hear the Appeal. The grounds raised in the Notice of Preliminary Objection are as follows:- "1. Whether the Appeal in view of the Appellant's failure to file the Record of Appeal and the Heads of Argument within 60 days from the date of Appeal. is properly before this Court 2. Whether compliance with the law. the Record of Appeal has been prepared in 3. Whether the Appellants have locus standi to appeal against the Order of the Court below dated 9th April, 2015 in view of the the Interpleader Summons of 6th fact March, 2015 was the Sheriff of Zambia." the applicant of that Mr. Shonga, Jr., S. C., relied on pages 1-10 of the 1st Respondent's Heads of Argument filed on 24th August, 2015. In support of ground one of the Notice, it was submitted that in accordance with Rules 54 and 58 (5) of the SCR, the Appellant's Appeal is not properly before this Court as the Record of Appeal was not filed within 60 days of the date of filing the Notice of Appeal. That however, Rules 54 and 58 (5) of the SCR are couched in a mandatory manner as the word "shall" is used and consequently the J5 lodging of the Record of Appeal on 1ih June, 2015, means that the Record of Appeal was not lodged within 60 days as required by the Rules. Reference was also made to Section 35 (a) of the Interpretations and General Provisions Act, Chapter 2 of the Laws of Zambia, which State Counsel argued, when read together with that Section, will show that the Record of Appeal in this matter was filed out of time. Hence, that this was in clear breach of Rule 54 of the SCR. Further that this breach is fatal to the Appellants' Appeal. As authority, Mr. Shonga, Jr., S. C., cited the case of NFC Africa Mining PLC vs Techro Zambia Limited2 , in which we made it clear that litigants who fail to strictly adhere to the Rules of the Court risk having their appeals being dismissed. He submitted that in that case, this Court went on to dismiss the appeal. It was Mr. Shonga, Jr., S. C.'s further submission that the Appellants in the current case did not seek leave to extend the time. In augmenting the written arguments on ground one, Mr. Shonga, Jr., S. C., began by giving the chronological order of the events resulting into this Appeal. We have referred to some of these events above. The sum total of Mr. Shonga, Jr., S. C.'s oral submissions under ground one was that the Appeal before us was incompetent because the Record of Appeal was not filed within the 60 days prescribed by the Rules of this Court. He . . J6 pointed out that the Record of Appeal was filed on 12th June, 2015 while the Notice of Appeal was filed on 10th April, 2015 as evidenced by the stamp of the Supreme Court Registry on the said documents. He also pointed out that 60 days from 10th April, 2015 takes us to 8th June, 2015. Mr. Shonga, Jr., S. C. went on to repeat the argument that no application to extend the time within which to file the Record of Appeal was obtained. In response to the arguments in the Appellants' Heads of Argument that the Record of Appeal was filed within time, Mr. Shonga, Jr., S. C., referred us to the case of Zambia Telecommunications Company Limited vs Muyawa Liuwa2cited and relied upon by the Appellants to support their position that the Record of Appeal was filed within the stipulated time. He pointed out that the Appellants' argument that the Record of Appeal was filed within time was based on the second holding in the above cited case which reads as follows:- "(ii) In calculating the period in which the record of appeal lodged, Saturdays, Sundays and Public Holidays are excluded." is to be It was however, Mr. Shonga, Jr., S. C's position that the above quoted holding is not supported by the body of the judgment of this Court. In Mr. Shonga, Jr., S. C.,'s view this could only be attributed to a typing error or a • J7 phrasing error. In this respect, Mr. Shonga, Jr., S. C., referred us to page 68, of the judgment in question where we stated as follows:- "In the instant case, the sole issue was whether the 60 days granted within which to file the record of appeal excluded Saturdays, Sundays and public holidays. We are satisfied that in terms of Order 2 rule 1 Ie) Saturdays and public holidays are excluded only when the limited time is less than six days. That rule on computation of time states:- (Underlining is ours for emphasis) "When the limited time is less than six days, the following days shall not be reckoned as part of the time, namelv Saturdays and Sundays and any public holidavs. "(Underlining is ours for emphasis) Mr. Shonga, Jr., S. C., pointed out that holding number (ii) in the Law Report sharply contradicts the main body of the judgment. And hence, holding number (ii) cannot assist the Appellants in any way. It was Mr. Shonga, Jr., S. C.,'s further submission that it will be observed from the Appellants' Heads of Argument in Response to the Notice of Preliminary Objection that holding number (ii) in the above cited case was the only defence the Appellants had against the first ground of the Notice of Preliminary Objections. His position was therefore, that the Appeal was incompetent and it should be dismissed. Mr. Shonga, Jr., S. C., also referred us to the case of A. T. Tyetye Enterprises vs Vutiwe Yolamu, Lina Yolamu, Njeleka Yolamu and Martha Mushipe3 in which the Appellants in that case had obtained leave J8 to file the Record of Appeal out of time but did not file within the time prescribed by the court as it was filed 82 days later. He pointed out that this Court was swift to declare the record incompetent. He accordingly invited us to take a similar position in the current case and swiftly declare the Record incompetent and dismiss it. As regards the second and third grounds in the Notice of Preliminary objection, Mr. Shonga, Jr., S. C., wholly relied on the arguments in the Respondent's Heads of Argument in support of the said grounds. The view that we take of this Appeal is that it is not necessary for us to repeat those arguments here, suffice to say that we have read them. In addition, the reason for this step will become apparent later in our judgment. In opposing the Notice of Preliminary Objection, the learned Counsel for the Appellants, Mr. Mainza, relied on the Appellants' Heads of Argument which he also augmented with oral submissions. In response to ground one, it was contended in the Appellants' Heads of Argument that the Record of Appeal was filed within 60 days from the date of the Notice of Appeal. In support of the above argument, the case of Zambia Telecommunications Company Limited vs Muyawa Liuwa6was cited and in particular, holding number (ii) which the Appellants relied upon to support their position that the Record of Appeal was filed within time. J9 Holding number (ii) has been recast above. It was argued that in calculating the period within which a Record of Appeal is to be lodged, Saturdays, Sundays and public holidays are excluded. That as such, the Appeal in this matter is competent. In his oral submissions, Mr. Mainza submitted that as pointed out by Mr. Shonga, Jr. S. C., the Appellants rely on holding number (ii) in the case of Zambia Telecommunications Company Limited vs Muyawa Liuwa2 which he contended, is still good law as there has been no judgment of this court departing from that holding. He, accordingly, urged us to dismiss ground one of the Notice of Preliminary Objection because in his view, the holding in that case is clear as Saturday, Sunday and public holidays are not included in calculating the 60 days provided for filing of a Record of Appeal. When it was put to Counsel that holding number (ii) in the Law Report was at variance with the main body of the judgment of this Court as pointed out by Mr. Shonga, Jr., S. C., Mr. Mainza took the position that the errors committed by the editors of the Zambia Law Report in question had distorted the law. When it was again pointed to him that holding number (ii) was in fact by the editorial team, Mr. Mainza put his response thus:-"When reading the judgment from the top starting with the parties up to no where it says "held", the holding part is a summary of what the court decided". It was Mr. Mainza's further position that the problem that has been created by the editorial team of Zambia Law Report has affected an innocent Appellant because as lawyers, "We do not just refer to hard copies of the judgment, most times we refer to reported cases." His further view was that this Court should give guidance because this unfortunate situation should not be allowed to negatively affect innocent parties as the Zambia Law Report in question is "a court document" which in some way, is misleading innocent parties who should not become victims. As observed above, we shall not sum up the arguments in response to grounds two and three of the Notice of Preliminary Objection suffice to restate that we have read them. We have seriously considered the Respondent's Notice of Preliminary Objection and the arguments put forward by Counsel for both parties, both orally and in the Heads of Argument filed with particular regard to ground one. This is because the issues raised in ground one of the Preliminary Objection go to the heart of the Appeal and could, if upheld, render the Appellants' entire Appeal redundant. It is also our firm view that the central question raised in ground one of the Notice of Preliminary Objection is whether the Appeal is incompetently before us, on ground that it was filed out of time. The 1slRespondent has submitted that the Appellants were obliged by Rule 54 of the SCR to lodge the Record of Appeal within 60 days of filing the Notice of Appeal. Perusal of the Record of Appeal has shown that the Appellants filed the Notice of Appeal and Memorandum of Appeal on the 10th April, 2015. The Appellants then proceeded to lodge the Record of Appeal with the Heads of Argument on 1ih June, 2015. Clearly, the Appellants exceeded the deadline by 2 days, in clear breach of Rule 54 of the SCR. Rule 54 reads as follows:- "Subject to any extension of time and to any order made under Rule 12, the appellant shall within sixty days after filing notice of appeal lodge the appeal by filing in the Registry five copies of the record of the sum of appeal, paying the prescribed fee and lodging in Court two the of appeal."(Underlining is ours for emphasis.) fee units thousand security costs the for as The Section uses the word "shall" which means that the Rule is couched in mandatory terms. So failure to comply with it renders an appellant's appeal incompetent. It is also our firm view that holding number (ii) in the case of Zambia Telecommunications Company Limited vs Muyawa Liuwa2 cited and relied upon by the learned Counsel for the Appellants does not aid the Appellants' case in any way because clearly, Saturdays, Sundays and J12 public holidays are not included when calculating the 60 days period within which a Record of Appeal shall be lodged from the date of filing of the Notice of Appeal. We, therefore totally agree with Mr. Shonga, Jr., S. C., that holding number (ii) in the Law Report in question sharply contradicts the main body of the judgment as clearly, the judgment of this Court starts with "Sakala, J. S.". It is also clear that the error is attributed to the editorial team and certainly not to this Court as that portion of the judgment is not at all part of the Court's judgment. It is also our firm view that some of the responses by Mr. Mainza which we have recast above to the questions put by the Court to Counsel clearly demonstrate that there was "piece-meal" reading of the judgment in question which is a wrong way of comprehending a judgment. Otherwise, we are at a loss as to how Counselor indeed, a litigant could not have observed that the holding in question sharply contradicts the holding of the Court in the judgment. Properly read, the judgment of this Court states and makes it clear that Saturdays, Sundays and public holidays are not excluded in computing the 60 days period for filing of the Record of Appeal from the date of filing the Notice of Appeal as these days are only excluded where the period stipulated is less than six days as provided in Section 35(d) of The Interpretations and General Provisions Act, Chapter 2 of J13 the Laws of Zambia, as well as Order 2 (c) of the High Court Rules, Chapter 27 of the Laws of Zambia. Computation of time is statutory. Had Counsel taken the provisions of Section 35(d) of Chapter 2 as well as Order 2 (a) of the High Court Rules into account, he could have noted that those days are specifically excluded in computing the time for filing of a Record of Appeal. He could also have seen that he was out of time so he could have taken the initiative of filing an appropriate application to cure the default. We are also of the view that Counsel cannot successfully attribute the editorial team's typographical error or phrase error to this Court. We, therefore, find merit in ground one of the 1stRespondent's Notice of Preliminary Objection as indeed, the Record of Appeal in this matter was filed out of time. Hence, the Appeal is incompetent. By so holding, we are fortified by our decision in NFC Africa Mining PLC vs Techro Zambia Limited2 where we made it clear that the Rules of the Court are intended to assist in the proper and orderly administration of justice and that as such, they must be strictly followed. We also made it clear parties that fail to adhere to the Rules of Court risk having their Appeals dismissed. In that case, and as correctly observed by State Counsel Shonga, Jr., S. C., we went on to dismiss the appeal for breach of the Rules of Court. Similarly, in - .,,: ..._ . -= ._~. -=_ ~ ;;;:;: ~ -- ---- ]14 -~- ..-..~~ .~ -"'-~~~-- ~ ~ ~ the cu~mt case, we order that the Appeal in que~ian be dismissed as it is - ~ incampetent because it was filed in breach af Rule 54 af the SCR as the Recard af Appeal was filed in excess af the 60 days stipulated far filing the Recard af Appeal. We, are also. fartified by aur decisian in A. T. Tyetye Enterprises vs Vutiwe Yolamu, Lina Yolamu, Njeleka Yolamu and Martha Mushipe3 in which we dismissed the appeal because the recard af appeal was filed aut of time. Having dismissed this Appeal far incampetence, aur firm view is that it is nat necessary far us to. cansider graunds twa and three af the Natice af Preliminary Objectian as the graunds have become atiose. Far the reasans given abave, the Appeal in this matter is dismissed with casts to. the 15t Respondent to. be agreed and in default thereaf, to. be taxed. ....._..~~~ •.••.•.......•.•. H. CHIBOMBA SUPREME COURT JUDGE ............~~~~;~~~.~~:~: ..... E. M. HAMAUNDU SUPREME COURT JUDGE ~::::-_",_.~.:;~£: ..=.=~~:S.::- R. M. C. KAOMA SUPREME COURT JUDGE