Sidney Silo v Mary Bwalya Banda (SP 42/2024) [2025] ZMCA 76 (14 May 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) SP 42/2024 BETWEEN: SIDNEY SILO AND APPELLANT RESPONDENT Coram Mchenga DJP, Ngulube and Chem be JJA On 25th March 2025 and 14th May 2025 For the Appellant Mrs. L. K. Mbaluku - Messrs L. K. Mbalu k u and Company For the Respondent Mr. M. Nzonzo-Messrs Marcus Nzonzo a n d Associates RULING Chembe JA delivered th e Ruling of th e Cou rt Cases referred to: - 1. Bidvest Food Zambia Limited and Others v CAA Import and Export Limited SCZ Appeal No 56/2017 2. Hermanus Phillip Steyn v Giovanni Ruscone 3. Davies Mambwe and Francis Nonde Mumba CAZ/08/230/2023 4. Simeza Sangwa and Associates v Hotellier Limited and Ody's Works Limited SCZ/8/402/2020 5. Twampane Mining Co-operative Society Limited v E and M Storti Mining Limited SCZ Judgment No. 20 of 2011 6 . Dimitros Monokandilos and Another SCZ/8/37/2019 7. Hermanus Philip Steyn v Giovanni Gnecchi Ruscone Sup Ct Appl. No. 4 of 2012 8 . The People v The Patents and Companies Registration Agency and Another 2017/CCZ/R003 9 . Access Bank (Z) Limited v Group five/ Zcon Business Park Joint Venture SCZ/8/52/2014 10. Henry Kapoko v The People 2016/CCZ/0023 Legislation referred to: 1. The Constitution Amendment Act No. 2 of 2016 1.0. INTRODUCTION 1. 1 This is an a pplication for leave to appeal to the Supreme Court again st the Ruling of this Cou rt d ated 11 th June 2024. 1.2 The m otion is accompanied by an affidavit which was sworn by Loveness Kolala Mbalu ka, Cou nsel for the Ap plicant. 2.0 BRIEF BACKGROUND 2.1 The Applicant filed a n otice and m em or andum of app eal into this Court on 26 th April 2023 again st a judgment of th e High Cou rt. T he notice and memor andum of appeal wer e served on t h e Resp ondent on 26t h June 2023 outside the prescribed 14 R2 days from the date of filing. The Respondent moved the Court to dismiss the appeal for irregularity. 2.2 In opposing the application, the Applicant conceded that the documents had been filed out of time without leave of Court. He explained that the delay was caused by the fact the documents got lost. 2.3 After hearing the application, the appeal was dismissed for non compliance with the rules. 3.0 THE APPLICATION 3.1 Aggrieved with the decision of this Court, the Applicant now applies for leave to appeal to the Supreme Court. The Applicant intends to file five grounds of appeal which essentially raise the issue of whether an appeal should be dismissed for a procedural defect which is curable. 3.2 In the affidavit in support of the application, it was stated that the intended appeal raised points of law of public importance and had reasonable prospects of success. The deponent stated that the interpretation of Article 118 (2) of the constitution in R3 r elation t o p rocedural d efects was a m a tter of public importance . 3 .3 It was averr ed furth er t h a t the dismissal of t h e app eal on t h e b a sis of procedural d efect s took away th e right of a p peal and was in conflict wit h Article 118 of t h e Con stitution . 3 .4 The Applicant exhibited the intended gr ounds of a ppeal as follows: 1. The Honourable Court of Appeal erred in law and in fact when they dismissed the appeal which was duly entered in the Court of Appeal based on a procedural defect which was curable and not fatal without weighing the decision against Article 118 (2) (e) of the 2016 Zambia Constitution. It was important to analyse whether or not the harsh decision to dismiss the appeal would infact amount to "according undue regard to procedural technicalities" as provided by Article 118 (2) (e) of the Constitution of Zambia. Considering the man if est injustice that ensues in dismissing an appeal which has a high prospects of success. 2. The Honourable Court of Appeal erred in law and infact when they dismissed the appeal duly entered in the Court of Appeal on a procedural defect which was not fatal and curable without having regard to the high prospects the appeal had of success. There was high prospects of R4 success in the dismissed appeal as the learned trial Court disregarded the Supreme Court's position on the sale of ZCCM houses to sitting tenants and upheld the sale to a non sitting tenant. A situation which amounts to disregard of the principle of stare desis and the binding interpretation of ZCCM rules for the sale houses. 3. The Honourable Court of Appeal erred in law and fact when they dismissed the appeal which was duly entered in the Court of Appeal based on a curable procedural defect which was not fatal by applying a higher standard applicable to strict rules of fast track commercial list and the rules of arbitration as an alternative dispute resolution. Both of which are subject to different and higher considerations which are different from the rules of the general list. The authorities relied upon by the Court of Appeal were in relation to commercial list and arbitration alternation dispute resolution rules which are of higher standards. The dismissed appeal emanated from the general list, and subject to provisions such as Order XIII (3) (3) (1) of the Court of Appeal rules. 4. The Honourable Court of Appeal erred in law and infact when they dismissed the appeal duly entered in the Court of Appeal on a basis of a curable procedural defect without taking into account the recent Supreme Court decision on procedural defects which was passed after the enactment of Article 118 (2) (e) of the Amended 2016 Zambian Constitution. RS 5. The Honourable Court below erred in law and in fact when they did not consider the application/or extension of time made by the Appellant in this matter before dismissing the appeal in the interest of justice. 4.0 ARGUMENTS IN SUPPORT 4.1 In the arguments in support, the Applicant relied on the cases of Bidvest Food Zambia Limited and Others v CAA Import and Export Limited1 and Hermanus Phillip Steyn v Giovauni Ruscone2 in submitting the threshold set by Section 13 (3) of the Court of Appeal Rules had been met. 4.2 It was argued the appeal raised a matter of law of public importance which transcended the rights of the parties as it related to the right to appeal which is enshrined in the Constitution. There was therefore need for the Supreme Court to pronounce itself on whether an appeal was amenable to dismissal due to procedural defects. 4. 3 We were ref erred to the case of Davies Mambwe and Francis Nonde Mumba3 where we granted an extension of time to file record of appeal and heads of argument. The Applicant also cited the case of Simeza Sangwa and Associates v Hotellier R6 Limited and Ody's Works Limited4 in support of the submission that triable issues should be allowed to go to trial despite default of the parties. 4.4 The Applicant maintained that the dismissed appeal had high prospects of success. We were urged to grant the application in the interest of justice. 5.0 RESPONDENT'S ARGUMENTS 5.1 The Respondent filed an affidavit in opposition together with skeleton arguments on 1st April 2025 . In the affidavit in opposition, it was averred that the rule requiring the filing of and serving of a Record of Appeal was mandatory. It was stated that the intended appeal had no prospects of success. 5.2 In the arguments in opposition, the Respondent submitted that the Applicant had failed to demonstrate that the intended appeal raised a point of law of public importance. She contended that the intended appeal did not have far reaching effect on the legal system or the public at large as it was fact specific and did not require authoritative clarification by the Supreme Court. R7 5.3 The Respondent maintained that the failure to comply with the procedural requirements in prosecuting the appeal rendered the appeal defective and the breach should not be condoned under the guise of raising a matter of public importance. We were referred to the case of Twampane Mining Co-operative Society Limited v E and M Storti Mining Limited5 where the Supreme Court rejected an application for extension of time within which to appeal made 39 days after the expiration of time. 5.4 The cases of Bidvest Food Zambia Limited & Others v CAA Import and Export Limited (supra), Finance Bank Zambia Limited v Dimitros Monokandilos and Another6 and Hermanus Philip Steyn v Giovanni Gnecchi Ruscone 7 were brought to our attention to buttress the submission that appeals have been dismissed for breach of procedural rules. 5.5 With regard to the reference to Article 118 (2) (e) of the Constitution which provides that justice should be administered without undue regard to procedural technicalities, the Respondent noted that the same Article also provided that justice should not be delayed. Reference was R8 made to the case of The People v The Patents and Companies Registration Agency and Another8 where the Constitutional Court had occasion to pronounce itself on the meaning of the phrase 'undue regard to procedural technicalities'. 5.6 The Respondent maintained that the failure to file a record of appeal within the prescribed time could not be treated as a mere procedural formality. We were also referred to the cases of Access Bank (Zambia) Limited v Group five/ZCON Business Park Joint Venture9 and Henry Kapoko v The People 10 where guidance was given that Constitution was not meant to oust the obligation of litigants to comply with procedural rules. It was submitted that a litigant could not invoke Article 118 (2) (e) as a shield to justify non- compliance with the rules. We were implored to dismiss the application. 6.0 HEARING 6.1 At the hearing, Counsel for the Applicant, Mrs Mbaluku, relied entirely on the motion and skeleton arguments. Counsel for the Respondent informed the Court that he had not been served R9 with the motion. We directed him to file opposing arguments by 1st April 2025. 7.0 CONSIDERATION AND DECISION 7 .1 We have carefully considered the record of motion together with the arguments by both sides and the affidavit evidence. The applicant is seeking leave to appeal to the Supreme Court against our decision to dismiss the appeal for irregularity. 7.2 The Applicant contends that the Supreme Court needs to guide on whether an appeal can dismissed for a procedural defects which are curable in view of Article 118 (2) (e) of the Constitution. The Applicant submits that the intended appeal raises a point of law of public importance and has reasonable prospects of success. 7. 3 Appeals to the Supreme Court are governed by section 13 of the Court of Appeal Act which provides as follows; "The Court may grant leave to appeal where it considers that: (a) The appeal raises a point of law of public importance; (b) It is desirable and in the public interest that an appeal by the person convicted should be determined by Supreme Court; (c) The appeal would have a reasonable prospect of success; or RlO (d) There is some compelling reason for the appeal to be heard." 7.4 Appeals to the Supreme Court are therefore not automatic or as a matter of right. In order for an application for leave to appeal to be granted, the threshold set out in section 13 (3) of the Act must be met. 7.5 In the present case, the Applicant relies on section 13 (3) (a) and (c) of the Act. In the case of Bidvest Food Zambia Limited and 4 others v CAA Import and Export1, the Supreme Court had occasion to guide on what section 13 (3) (a) entailed. In that case, the Court guided that: " ... many cases of a purely private nature, including many in contract and Tort are unlikely to raise points of law of public importance since they quiet often are designed to resolving the dispute to the satisfaction of only one of the limited parties to a particular dispute." 7.6 Relying on the Kenyan case of Hermanus Phillipus Steyn v Giovanni Greachi Ruscone2 , the Supreme Court went on to explain what the phrase 'a matter of public importance ' meant as follows; "i) The importance of the matter must be public in nature and must transcend the circumstances of the particular case so as to have a more general significance Rll ii) where the matter involves a point of law, the Applicant demonstrates that there is uncertainty as to the point of law and that it is for the common good that such law should be clarified so as to enable the Courts to administer that law, not only to the case at hand, but other cases in the future. iii) It is not enough to show that a different question of law arose, it must be an important question of law; iv) A question of general importance is a question which takes into account the wellbeing of society in first proposition." The Suprem e Court also guided th a t it is not every novel issu e that is a matter of public importance. 7 .7 In th e present case, th e Applicant wis h es the Supreme Cou rt to address the effect of Article 118 (2) (e) on procedural la p ses in appeals. His position is th at th e import of the above article is th at cu rable pr ocedural la p ses shou ld not result in the dism issal of an appeal. Article 118 (2) (e) of the Con s titu tion of Zambia (Amendmen t) Act No. 2 of 2016 provides as follows : "In exercising judicial authority, the Courts shall be guided by the following principles; Justice shall be administered without undue regard to procedural technicalities." R12 7.8 The Suprem e Court h as had occasion to con sider th e impor t of Article 118 (2) (e) of the Constitu tion and held t h at it does not ou st th e r equirement to adhere to the rules of Cou rt. In the case of Access Bank (Z) Limited v Group five/ Zcon Business Park Joint Venture5 the Su preme Cour t h eld as follows: "Justice demands that all courts must never provide succor to litigants and other Counsel who exhibit scant respect for rules of procedure. Rules of procedure and time lines serve to make the process of adjudication fair, just, certain and even- handed. Courts cannot aid in the bending or circumventing of the rules and shifting of 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." 7 . 9 In that case the appeal had been dismissed on account of a defective record. Coun sel for the applicant had argued, as in this case, that the court had the discretion to allow the procedural defects in the record of appeal to be cured. The R13 Supreme Court guided that the Constitution was not meant to oust the obligations of litigants to comply with procedural imperatives as they seek justice from the courts. In view of the above decision and many oth ers, the issue raised by the Applicant has already been considered by the Supreme Court. 7. 10 Although this court has the discretion to consider each case on its own facts, litigants who ignore court rules do so at their own peril. In the case of Twampane Mining Co-operative Society Limited v E and M Storti Mining Limited12 in the Supreme Court stated that: " ... we cannot over-emphasise the importance of adhering to Rules of Court as this is intended to ensure that matters are heard in an orderly and expeditious manner." We therefore do not agree that the appeal raises a point of law of public importance which requires consideration by the Supreme Court. 7 .11 With respect to the appeal having good prospects of success, we have previewed the intended grounds. We are of the firm view that they have dim prospects of success as the issues raised have already been decided. There is no uncertainty in the state of the law on t h e application of Article 118 (2) (e) of the R14 Constitution. In the case of The People v PACRA (supra) referred to by the Respondent, the Constitutional Court guided that the phrase 'undue regard to procedural irregularities' meant placing reliance on minor details or points of law. 8.0 CONCLUSION 8. 1 In view of the foregoing, we hold that the application does not meet the threshold set out in Section 13 (3) of the Court of Appeal Act. We accordingly dismiss the application with costs. PCM. NGULUBE COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE R15