St. Paul II Mission Orthopaedic Hospital v Evans Chande (CAZ/08/484/2022) [2023] ZMCA 410 (15 March 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/08/484/2022 BETWEEN: APPELLANT RESPONDENT CORAM: SIAVWAPA JA FOR THE APPLICANT: BEMVI Associates FOR THE RESPONDENT: Mesdames Grace and Partners Advocates RULING Cases Referred to: 1. 2. 3. Ram Auerbach v Alex Kafwata SCZ Appeal No 65 of 2000 NFC Mining Plc. v Techpro Zambia Limited (2009) Z. R 236 Twampane Mining Co-operative Society Limited v Msorti Mining Limited SCZ Appeal No 20 of 2012 Legislation referred to: 1. 2 . Court of Appeal Act No 7 of 2016 Court of Appeal Rules, Statutory Instrument No 65 of 2016 1.0 INTRODUCTION 1.1 For expedience, I have decided to deal with this application exparte on the record since the Respondent has sought a remedy in the alternative. This is the Respondent's application for an order to set aside the Appellant's notice of appeal and memorandum of appeal for irregularity or in the alternative to grant leave to the Appellant to amend the notice of appeal and memorandum of appeal with costs. 1.2 The application is made pursuant to Section 9 of the Court of Appeal Act and Order 7 Rule 2 Subrules 1 and 2 of the Court of Appeal Rules. 2.0 THE APPLICATION 2.1 According to the affidavit in support of the application sworn by the Respondent, on 14th November 2022, the Appellant filed into Court a notice of appeal and memorandum of appeal citing itself as indicated in the caption herein. 2 .2 The Respondent asserts that the Appellant's correct name as evidenced b y the copy of the PACRA printout exhibited as 'EC3' is 'ST. JOHN PAUL II ORTHOPAEDIC MISSION HOSPITAL LIMITED'. 2.3 The Respondent therefore opines that the appeal before this Court is incompetent as the party cited as Appellant is a R2 different entity. The cases of Ram Auerbach v Alex Kafwata1, NFC Mining Plc v Techpro Zambia Limited2 and Twampane Mining Co-operative Society Limited v Msorti Mining Limited 3 were cited to the effect that parties who choose to ignore rules of Court do so at their own peril. 2.4 I am therefore asked to set aside the Appellant's notice of appeal and memorandum of appeal or in the alternative to make an order for the proceedings to be amended with costs. 3.0 DECISION 3 .1 I have considered the application, evidence proffered by both parties together with the arguments. 3.2 In the arguments in support of this application, the Respondent has argued that litigants ignore rules of Court at their own peril, however, the rule which has not been followed by the Appellant has not been cited. 3.3 What is clear from the evidence is that the Appellant has not cited the correct name in the title to these proceedings as shown in the notice of appeal and memorandum of appeal marked 'EC3 '. 3.4 Having regard to the nature of the error and the early stage of the proceedings together with Order X Rule 1 7 ( 1) of the Court R3 of Appeal Rules which provides for a Judge to allow the amendment of a notice of appeal and memorandum of appeal, I dismiss the remedy in the ma.in, for an order to set aside the Notice and Memorandum of Appeal for irregularity. I instead grant the alternative remedy to amend. 3.5 I accordingly order the Appellant to file an amended notice of appeal and memorandum of appeal within 14 days of this order: 3.6 Costs are for the Respondent in any event. Dated this 15th day of March, 2023 . . . . . . . . . . . . . . . . . j ..................... . M. J. SIAVWAPA COURT OF APPEAL JUDGE R4