Southern Cross Motors v Maimbika (CAZ 8 102 of 2018) [2018] ZMCA 372 (20 July 2018)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/102/2018 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: SOUTHERN CROSS MOTOR APPELLANT AND STEVEN MAIMBIKA RESPONDENT Before the Hon. Mrs. Justice J. Z- Mulongoti in Chambers on the 20th day of July, 2018. For the appellant: For the respondent: Mr. C. Hamweela of Nchito & Nchito Ms. G. Kumwenda ofM. Musonda & Co on brief for Messrs Katonqo & Compan RULING Cases cited: 1. Leopold Walford (Z) Limited v. Unifrieght (1985) ZR 302 (SC) 2. Zambia Revenue Authority v. Armcor Security Limited (SCZ Judgment No. 56 of 2014) Legislation referred to: 1. The Constitution of Zambia, Chapter 1 of the Laws of Zambia 2. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 The Ruling relates to an application by the respondent for an order to dismiss the appellant’s appeal pursuant to Order X rule 3 (9) of the Court of Appeal Rules (CAR). The application was made by R1 summons supported by an affidavit sworn by one Katongo Nsofu, the respondent's advocate. The deponent swore that on 18th April, 2018 the appellant lodged an appeal against a Judgment of High Court at Kitwe dated 4th April, 2018. On 23rd April, 2018, the appellant served the respondent’s advocates with an Order staying the Judgment. That is how the respondent’s advocates became aware of the Appeal. The respondent’s advocates conducted a search and confirmed that an appeal had been lodged. However, the appellant’s advocates never served them with the Notice and Memorandum of Appeal. The deponent averred that Notice and Memorandum of Appeal ought to have been served on the respondent within fourteen days of lodging the appeal which was not done. As such, this is a fit and proper case for this Court to dismiss the appeal. There was no opposing affidavit filed into Court. At the hearing, the respondent was represented by Ms. Kumwenda of M. Musonda and Company on brief for Messrs Katongo and Co. while the appellant was represented by Mr. Hamweela of Nchito and Nchito. Ms. Kumwenda relied on the affidavit in support placing particular emphasis on paragraph four which discloses that the appellant has not served the Notice and Memorandum of Appeal on the respondent. She argued that Order X rule 3 (9) CAR is clear and in mandatory R2 terms that the Notice and Memorandum of Appeal ought to be served within fourteen days. Therefore, the appeal should be dismissed for breaching the Rules of the Court. In response, Mr. Hamweela relied on the record generally, and argued on points of law. He submitted that on 21st June, 2018, the appellant’s advocates filed an affidavit of service which confirms that the Notice and Memorandum of Appeal were served on the respondent on 22nd May, 2018 while the present application was received on 29th May, 2018 after they had served. He argued that even assuming that the Rule on service was breached, such a breach would not be fatal. He called in aid the provisions of Article 118 (2) (e) of the Constitution which provides that justice shall be administered without undue regard to procedural technicalities. He also relied on the case of Leopold Walford Zambia Limited v. Unifrieght1 which states that breach of a regulatory rule is curable and not fatal to the court process. He argued that the Notice and Memorandum of Appeal were served on the respondent even before the appellant became aware of this application. Therefore, the application had been overtaken. He prayed that the application be dismissed. In reply, Ms. Kumwenda accepted that the respondent was served with the Notice and Memorandum of Appeal on 29th May, 2018 after R3 they had uplifted the summons for this application. Meanwhile, the application had been filed on 21st May, 2018. She also accepted that the breach of the rule is curable but insisted that the Rules of Court must be adhered to. Since the time for service had lapsed, the appellant needed to apply to serve out of time. It is the application for extension of time which will then cure the defect. The appellant has not exercised the right to cure the defect in the manner provided by the rules. She submitted that in order to extend time, the Court must be moved which was not done. As regards the argument on Article 118(2) (e) of the Constitution, Ms. Kumwenda submitted that the rules relating to time must be adhered to because justice delayed is justice denied. She urged the Court to uphold the application and dismiss the appeal. I have considered the affidavit evidence and the submissions by counsel. The central issue which this application raises is whether the appellant’s advocates breached the rule which requires that the Notice and Memorandum of Appeal be served within fourteen days of lodging the appeal and whether the defect is curable? The record shows that the Notice and Memorandum of Appeal were lodged on 18th April, 2018. According to Ms. Kumwenda, going by R4 Order X rule 3 (9) CAR, these documents should have been served on the respondent’s advocates within fourteen days, that is, on or about 3rd May, 2018. Order X rule 3 (9) CAR referred to 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. ” I note that there is some sort of ambiguity as the rule does not specify whether the fourteen days are within or after thirty days period of filing of the notice of appeal and memorandum of appeal referred to in Order X rule 3 (5) which is couched thus: “The notice of appeal and memorandum of appeal shall be entitled in the proceedings from which it is intended to appeal and shall be filed with the Registrar within thirty days after the judgment appealed against. ” Thus, the rules provide for two time periods within which an appeal must be lodged and served on the other party, which is, fourteen days and thirty days. The Supreme Court had occasion to interpret similar provisions that is, Order 49 (2) and (5) of the Supreme Court Rules which mirror the Court of Appeal’s Order X rule 3 (5) and (9) in the case of Zambia Revenue Authority v. Armcor Security Limited2. In that case, the High Court Judgment was delivered on 30th January, 2014. The appellant filed a Notice and Memorandum of R5 Appeal on 25th February, 2014 and served the documents on 26th February, 2014. The issue before the Supreme Court was whether the appeal had been lodged out of time and therefore incompetent. It was held that- “...the Appellant, having filed the notice of appeal and memorandum of appeal on 25th February, 2014 and having served the two documents on 26th February, 2014, the appeal in this matter cannot be said to be incompetently before us as both the filing and the service of the notice of appeal and the memorandum of appeal were done within the time stipulated in sub-rules (2) and (5) of Rule 49 of the SCR as amended. Therefore, this Court has jurisdiction to hear and determine this appeal.” In the present case, the Notice and Memorandum of Appeal were filed on 18th April, 2018 and served on 22nd May, 2018, that is, about thirty two days after the Notice and Memorandum of Appeal were first filed in accordance with Order X rule 3 (5). However, having pointed out the ambiguity of the rules, I am disinclined to dismiss the appeal. According to my understanding and for future guidance the fourteen days begin to run after the lodging of the Notice of Appeal and Memorandum of Appeal referred to in sub rule 5, that is, these documents must be lodged within thirty days of the Judgment appealed against. So in casu it is fourteen days after the 18th of April 2018 which takes it to on or about the 2nd of May, 2018 as canvassed by Ms. Kumwenda. Thus, the R6 appellant was out of time within which to serve the Notice and Memorandum of Appeal. I also note that Mr. Hamweela argued that the defect is curable while Ms. Kumwenda contended that the appellant did not take steps to cure the defect by applying for leave to serve out of time. I note that this application was filed on 19th June, 2018, long after the respondent had been served with the Notice and Memorandum of Appeal which were served on 22nd May, 2018. That in itself does not cure the defect because the appellant was still out of time within which it ought to have served the respondent. The appellant’s advocates went ahead and served the Notice and Memorandum of Appeal out of time without leave. This was irregular. However, I am inclined to hold that the irregularity is curable as elucidated in the case of Zambia Revenue Authority v. Armcor Security Limited, supra, the purpose of the Rule on service is meant to enable the affected party to start preparing their own case in response instead of waiting until the record of appeal is served on them. Although the Notice and Memorandum of Appeal were served out of time, there will be no prejudice occasioned on the respondent because the respondent has had ample time to study the grounds set forth in the Memorandum of Appeal and will be fully aware of the case they are expected to meet. I am of the considered view that the nature of the breach and stage of proceedings reached renders the irregularity curable. I am equally fortified by the holding of the R7 Supreme Court in Leopold Walford v. Unifrieght, cited by the appellant’s counsel that- “... where there has been a breach of a regulatory rule, such breach will not always be fatal as much will depend upon the nature of the breach and the stage of the proceedings reached. This, therefore, means that, as a general rule, breach of a regulatory rule is curable.” For the foregoing reasons, the application to dismiss the appeal is unsuccessful. The service of the Notice and Memorandum of Appeal effected by the appellant’s advocates on 22nd May, 2018 shall be deemed to have been done with leave of the Court. The costs of this application shall be borne by the appellant, to be taxed failing agreement. Delivered at Lusaka this 20th day of July, 2018. Court of Appeal Judge R8