Stanbic Bank Zambia Ltd v Micoquip Zambia Ltd (Appeal 134 of 2012) [2015] ZMSC 80 (19 August 2015)

Ri IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN APPEAL NO. 134/2012 SCZ1812641201 I STANBIC BANK ZAMBIA LIMITED APPELLANT AND MICOQUIP ZAMBIA LIMITED RESPONDENT Coram: (cid:9) Chibomba, Wanki and Muyovwe, JJS. On 7th May, 2015 and 19TH August, 2015. For the Appellant: (cid:9) Mr. S. Chisenga of Messrs. Corpus Legal Practitioners. For the Respondent: (cid:9) Mr. M. Chugani of Chugani and Co. RULING Chibomba, J. S., delivered the Ruling of the Court. Case Referred to:- 1. Barclays Bank Zambia Plc vs Jeremiah Njovu and 41 Others, SCZ Ruling No. 23/2015 (Appeal No. 107/2012) Legislation Referred to:- The Supreme Court Rules, Chapter 25 of the Laws of Zambia. When this Appeal was called for hearing, the learned Counsel for the Appellant, Mr. Chisenga, made an application to withdraw the Record of Appeal and the Heads of Argument on ground that the same 17th August, 2012 for the Record of 7th October, 2013 for the Heads of Argument. The reason were filed on different dates, namely, Appeal and given was that the filing on different dates was contrary to Statutory R2 Instrument No. 26 of 2012, which amended Rule 58 of the Supreme Court Rules which now require the Record of Appeal to be filed together with the Heads of Argument. Counsel's prayer was that if the application to withdraw the Appeal was allowed, it would enable him file a requisite application to cure the default. He also conceded to costs. In response, the learned Counsel for the Respondent, Mr. Chugani, informed the Court that he had in fact, discussed the issue with Counsel for the Appellant and expressed his concern that before another Panel that same morning, there was a heated argument which created an impression that once a Record of Appeal is withdrawn, the effect is that the Appeal would stand dismissed. In addition, he requested us to deal with the matter speedily because of the difficulties his client was facing. In reply, Mr. Chisenga submitted that he had looked at the Rules and there did not appear to be any provision to the effect that such an Appeal would stand dismissed. He submitted that dismissal of the Appeal was not automatic and that he would make an application before a single Judge of this Court. We have seriously considered the Application to withdraw the Record of Appeal. The position of this Court as taken in the case of Barclays Bank Zambia Plc vs Jeremiah Njovu and 41 Others' is that the withdrawal of a Record of Appeal even if it contains a copy of the Notice of Appeal is not synonymous with the withdrawal of the Appeal and that this is more so where the withdrawal of the Record of Appeal is with a view of correcting a defect, either in the Record itself or the process leading to its filing. We believe that the case Mr. Chugani R3 referred to where there was a heated argument is the above cited case in which we ruled as reflected above. In view of what we have stated above, the application for leave to withdraw the Record of Appeal is granted on condition that the Appellant files the proposed application within 14 days from the date of this Ruling. In default thereof, the Appeal shall stand dismissed. In the circumstances of this case, we order that the costs for and incidental to this application be for the Respondent. The same are to be agreed and in default thereof, to be taxed. H. Chibomba SUPREME COURT JUDGE M. E. Wanki SUPREME COURT JUDGE i (cid:9) E. C. Muyovwe SUPREME COURT JUDGE