ZSIC General Insurance Limited v Mwabi Lungu (suing in his capacity as Administrator of the Estate of the late Lufeyo Lungu) (Appeal No. 49 of 2022) [2024] ZMCA 163 (23 February 2024)

• IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA Appeal No. 49 of 2022 - o ... - /"~~"1 ' 'l"' / r ~ 2 3 FEi 2024 ~1 ~ ~ Appellant (Civil Jurisdiction) BETWEEN: AND MWABI LUNGU (suing in his capacity as Administrator of the Estate of the late Lufeyo Lungu) Respondent CORAM: Makungu, Sichinga and Sharpe-Phiri, JJA on 17 January and 23 February 2024 For the Appellant: Mr. C. G. Chilekwa of Messrs CC Gabriel & Co. For the Respondent: Mr. M. Mwango of Messrs Joseph Chirwa and Company as agents for Messrs Nyirongo and Company JUDGMENT SHARPE-PHIRI, JA, delivered the judgment of the Court. Legislation referred to: 1. The State Proceedings Act, Chapter 71 of the Laws of Zambia 2. The Insurance Act No. 38 of 2021 3. The Court of Appeal Rules SI No. 65 of 2016 4. The Inte1pretation and General Provisions Act. Chapter 2 of the Laws of Zambia Cases referred to: ' 1. JNC Holdings Limited, Post Newspaper Limited_. Mutembo Nchito v Development Bank a/Zambia (Appeal 87 o/2012) [2013} ZMSC 22 2. Shalom Engineering Limited v Robby Kalonje, Appeal No. 258 of 202 I 3. George Chanda v Dangote Cement Zambia Limited, CAZ/08/453/2022, App no. 39 of • • 1.0 INTRODUCTION 1.1 This is an appeal against the decision of Pengele J delivered in the Kitwe High Court on 8 December 2021. 1.2 By that judgment, the trial Judge ordered ZSIC General Insurance Limited (the appellant herein) to pay the sum of K30, 100 with interest to the 1st plaintiff, Mwabi Lungu (now the respondent herein) in respect of a third party insurance cover over a motor vehicle which was involved in an accident. The Court fu1iher ordered payment for the costs of the action against the appellant. 2.0 BACKGROUND 2.1 The matter originated from a road traffic accident that occun-ed along Lundazi-Chipata road at about 12 hours on the 28 F ebrua1y 2017 involving a Government ambulance, Hyundai motor vehicle registration number ALZ 6051 ('the motor vehicle) being driven by Charles Mbewe, (1 st defendant in the Collli below), a driver and Government employee based at Lundazi General Hospital. 2.2 Apaii from the driver, three other people, Lufeyo Lungu, Mabuchi Mpande and Alliness Mtonga were traveling in the ambulance. Lufeyo Lungu, an 18-year-old young man, being transferred from Lundazi General Hospital to Chipata General Hospital died on the spot from the injuries he sustained as a result of the accident. Mabuchi Mpande was also said to have suffered injuries in the accident. There was no information ·· about the 3rd person. • 2.3 Mwabi Lungu, the administrator of the estate of the late Lufeyo Lungu (now the respondent in this appeal) and Mabuchi Mpande commenced an action in the Kitwe High Court by way of writ of summons and statement of claim on 3 July 2019 as 1st and 2nd plaintiffs against Charles Mb ewe as 1st defendant, Attorney General as 2nd defendant and ZSIC General Insurance Limited as 3rd defendant. 2.4 The plaintiffs sued Charles Mbewe as driver of the ambulance and employee of the Government of the Republic of Zambia, the owner of the said Hyundai motor vehicle and the Attorney General as principal legal officer of the Government of Zambia pursuant to the State Proceedings Act. The appellant was sued as an insurance provider for the 2 defendants in the Com1 below. 2.5 The plaintiffs pleaded that the driver on duty, Charles Mbewe drove the ambulance on the 28 February 2019, negligently causing a road traffic accident. The particulars of negligence being failure to check the tires [tyres] of the vehicle if they were road worth[y] and fit; failure [to] apply reasonable brakes and drive the vehicle at minimum speed after the tyre burst; and failure to observe traffic regulations. 2.6 According to the statement of claim, Lufeyo Lungu sustained a fractured neck at C 1, deep lacerations on his left forearm and a ruptured spleen with blood in his abdominal cavity and died at the scene of the accident as a result of the injuries sustained. Their fu11her contention is that Mabuchi Mpande sustained a cut on his head, bruise on his face and a fractured left leg. J3 2.7 The paiiiculars of special damage in relation to the l51 plaintiff was for the sum of K20,000 and K35,000 respectively incurred to feed numerous [mourners] from the date of death to date of burial and to transport the mourners from the burial house to various destinations after mourning and burial. The particulars of damage in relation to the 2nd plaintiff were pleaded as hospital bills, transport costs and the cost of pain killers and other drugs. 2.8 The statement of claim further pleaded that the action sought damages for loss of expectation of life pursuant to the Fatal Accidents Act, 1846 to 1908 for the benefit of Naiwel Lungu, 67-year-old and Vailet Theu, 52- year-old, father, and mother of the deceased respectively. 2.9 The plaintiffs also claimed the following reliefs: I. Payment of whatever amount the insured is covered for on the policy for the said Ambulance Registration number ALZ 6051 which is insured with the 3rd Defendant. Damages for loss of expectation. Special Damages. Damages for negligence. Costs and interest. Any other relief the Court may deemfh. 2. 3. 4. 5. 6. 2.10 The record of appeal reflects that Allines Mtonga and Professional Insurance Corporation (Zambia) Limited were later joined to the action as 3rd plaintiff and 4th defendant respectively. J4 2.11 The 3rd defendant (now the appellant) filed a memorandum of appearance and defence on 21 August 2019 denying the allegation of negligence and the damages suffered by the parties and putting the plaintiffs to strict proof thereof. 2.12 In its defence before the lower Court, the 3rd defendant also denied that it had insured the said motor vehicle and averred that the Lundazi District Office, agents for the Government of Zambia, instructed them to cancel the insurance cover for the vehicle as the same was insured by Professional Insurance Zambia, the 4th defendant in the lower Court. 2.13 The Yd defendant also denied that it was liable to pay the plaintiffs any monies arising from the accident involving the said motor vehicle as alleged. The record does not reveal whether the 1st , 2nd and 4th defendants filed their defences to the action. 3.0 TRIAL IN THE COURT BELOW 3 .1 The trial of the action was heard on 18 February 2021. The administrator of the estate of the deceased (the respondent herein) was the only witness for the plaintiffs. It was his testimony that the deceased was his young brother who died in a road traffic accident while being transported from Lundazi District Hospital to Chipata General Hospital. 3.2 Following the burial of his brother, he obtained a police repo11 and the Insurance Policy Cover from the Lundazi District Hospital showing that ZSIC General Insurance has insured the motor vehicle in question. He fmther contended that he had made a claim for compensation from ZSIC for the death of his brother and the injuries he had sustained but that he had not received any response, which prompted him to commence an action in the lower Court seeking compensation for the loss of his brother's life. 3.3 The witness drew the Comt's attention to the Certificate of Insurance issued by ZSIC General Insurance which covered the subject vehicle from 9 Januaty 2017 to 31 December 2017. He also referred to a letter that was written by Lundazi District Council to the insurance company requesting that the said motor vehicle be removed from the list of motor vehicles to ' be insured. The witness highlighted that this letter was written after the accident in question and the death of his brother. 3.4 The 3rd defendant called one witness, Lizzie Chinyama Shabenzu, an assistant manager in its company. She testified that the Lundazi District Council had been their client for some time and had insured its motor vehicles with their company. That the insurance policy for their motor vehicles had expired and the Council had instructed them to renew the policies for their fleet. That in the process of renewal, they were instructed to remove the motor vehicle in question as it had already been insured with Professional Insurance Company. She contended that the premium amount had been reduced and that the Council had not paid any of the premiums. The witness further contended that an insurance cover only becomes operative upon payment of premiums. 3 .5 Under cross-examination, the witness conceded that ZSIC had issued a certificate of motor insurance which was valid from 9 January 201 7 to 31 December 2017 and that the motor vehicle in question was double insured. J6 I j 4.0 DECISION OF THE LOWER COURT 4.1 After considering the evidence of the paiiies, the trial Judge found that the plaintiffs had not proved their allegations and cases made against the defendants in relation to the 2nd and 3rd plaintiffs' claims and dismissed their claims in respect of the 2nd and 3r d plaintiffs accordingly. 4.2 With respect to the 1st plaintiffs claims against the defendants, the lower , Court was of the view that the issue for consideration of these claims depended largely on: whether the insurance cover for the subject motor vehicle between Lundazi District Health Office and the 3rd Defendant was valid and operative at the time of the accident? 4.3 After examining the evidence and the submissions of the pa11ies in relation to the validity of the ce11ificate of the motor insurance, the trial Cou1t discerned that the accident occurred on 28 February 2017 and that the certificate of motor insurance was issued on 9 January 201 7 and due to expire on 31 December 2017. Although the Yd defendant' s counsel had argued that the insurance cover had lapsed for failure to pay the insurance premiums within 30 days, the Judge formed the view that the certificate of insurance between Lundazi District Health Office and the 3rd Defendant was valid and operative at the time of the road traffic accident as the contract of insurance between the pai1ies did not state the due date for payment of premiums. 4.4 The Judge was of the view that the issue did not fall within the scope of Section 76 of the Insurance Act which specified cessation of insurance cover if non-payment of premiums within 30 days of due date, as the J7 • parties had not agreed on the due date for payment of premiums. In arriving at his decision, the trial Judge also found it untenable for the 3 rd Defendant to have cancelled the insurance cover after the road traffic accident occurred and caused the death of the deceased. 4.5 In relation to the contention that there was double insurance and that the plaintiffs had already been paid out by the 4 th defendant, it was the lower Court' s view that there was no evidence that the 1 si plaintiff had in fact recovered from the 4th defendant. The Judge held that the 1st plaintiff was entitled to recover from the 3rd defendant to the full extent to which a third party was entitled to recover under the subject insurance cover. The third party limit of liability being set at K30, 100, the Judge ordered that the 1 51 plaintiff was entitled to recover K30,100 from the 3rd defendant with interest and costs. 4.6 The lower Cou1t further found that no evidence was adduced in relation to the claims relating to the 1st and 2nd defendants and no submissions had been made by Counsel for the 1 si plaintiff in relation to the plaintiff's other claims, which the Judge formed the view related to the 1 si and 2nd defendant. He therefore found that the 1 si plaintiff had failed to prove on a balance of probabilities that it is entitled to the claims against the 1 si and 2nd defendant and dismissed the claims accordingly. 5.0 APPEAL 5.1 Expressing dissatisfaction with the decision of the High Court rendered on 8 December 2021, the appellant filed a notice and memorandum of appeal on 5 January 2022 advancing four grounds of appeal. J8 5 .2 The grounds of appeal state as follows: 1. The Court erred in law and in fact when it held that the appellant was liable to pay the insurance claim having found the insured not liable. 2. The Court below erred in fact and law when it awarded K30.100.00 in damages without assessing the same. 3. The Court erred in fact in holding that there was no evidence to show that the Plaintiffs recovered from the 4th Defendant K60,000 which was the Insurance Policy limit which Consent Judgment was filed into Court. 4. The Court below erred in law and fact when it condemned the 3 rd Defendant in costs. 6.0 HEARING OF THE MATTER 6 .1 The appeal was called for hearing before us on 17 January 2024. Both pai1ies were represented as previously mentioned. 6.2 The appellant's counsel relied on his heads of arguments filed on 3rd March 2022. He pointed out that the respondent's counsel had just served them with the respondent' s heads of arguments dated 31 st March 2022. He requested the Com1's pennission to submit arguments in reply to the respondent' s arguments. 6.3 The respondent's counsel apologized for the late service of their heads of arguments, explaining that they were acting as agents for Messrs Nyirongo and Company, the Advocates who were handling the case for the respondent. They expressed unawareness of the delayed service. The Court directed the appellant to submit their arguments in reply within 7 days and they complied by filing arguments in reply on 2Jrd January 2024 where they only responded to the preliminary objection raised by the respondent. 7.0 PRELIMINARY OBJECTION 7 .1 The respondent, through his heads of argument filed on 31 March 2022, has raised a preliminary objection concerning the jurisdiction of the Court. He contends that the appellant has flouted the rules of this Court regarding the proper procedure for proceeding with the appeal. The respondent contends that we, therefore, have no jurisdiction to entertain this appeal. 7.2 The respondent has cited the case of JNC Holdings Limited, Post Newspaper Limited, Mutembo Nchito v Development Bank of Zambia' to support its argument onjurisdiction. In that case, the Supreme Court upheld the principle outlined in the Court below that ' . .. it is settled law that if a matter is not properly before Court, that Court has no jurisdiction to make any orders or grant any remedies'. He went on to submit that the appellant failed to comply with the timeframes provided for lodging and serving the notice of appeal and memorandum of appeal as well as failing to lodge the record of appeal within 60 days from the date of filing the notice and memorandum of appeal. JI 0 7 .3 The respondent refen-ed to the provisions of Order X Rule 3(5) of the Court of Appel Rules which stipulates that: "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". 7.4 The respondent further cited the provisions of Order X Rule 3(9) of the said Rules which specifies that: "A notice of appeal, together with the memorandum of appeal shall be lodged and served, within a period of fourteen days, 011 all parties directly affected by the appeal or on their practitioner". 7 .5 The respondent contends that according to the relevant provisions, once the notice and memorandum of appeal are filed, they should be lodged in the Court of Appeal and served on the affected parties within 14 days. The argument is that the appellants failed to comply with this regulation, as the notice of appeal and memorandum of appeal, filed on 20 December 2021 , should have been lodged in this Comi' s registry and served on the respondent on or before 3 January 2022. 7 .6 The respondent futiher argues that the appellant violated the provisions of Order X Rule 6 of the Court of Appeal Rules. This rule requires an appellant to file 21 hard copies of the record of appeal within 60 days after filing notice of appeal. JI I 7. 7 According to the respondent, since the notice of appeal was filed on 20 December 2021, the record of appeal should have been filed on or before the 17 February 2022. However, the record of appeal before the Court was only filed on 3 March 2022 without leave of Court. 7.8 The respondent argued that the appellant violated Order X Rule 9(5)(e) of the Court of Appeal Rules, which requires the inclusion of proof of service of the notice of appeal. This proof of service is essential to comply with Order X Rule 3(9) of the Court of Appeal Rules, which mandates the notice to be lodged and served on all affected parties within 14 days from date of being filed. Furthermore, the respondent contended that the appellant breached the Rules by failing to include the 2nd defendant's defence in the lower Court, which was necessary for determination of this appeal especially concerning grounds 1 and 4. Additionally, the appellant included documents from page 71 to 80 of the record of appeal without clearly stating their relevance, origin, or which party filed or produced them in the trial court. 7.9 The appellant' s response in rebuttal was that the respondent' s preliminary objection should not be entertained in the first place as it violated the provisions of Order XIII Rule 5(1) of the Court of Appeal Rules which require that the respondent should make any preliminary objection in relation to an appeal within 14 days from date of receipt of the record of appeal. The appellant further argued that in relation to the contention that its appeal was filed out ohime, the con-ect position is that the appeal was filed within time before the Registrar of the Court of Appeal as envisaged under Section 20(1) and ( 4) of the Interpretation and General Provisions Act and also refen-ed to under Order X Rule 3(5) of the ii- .. Court of Appeal Rules. The appellant insisted that reference to the Registrar in the Rules of Court of Appeal means the Registrar of the Court of Appeal. Section 20(1) and ( 4) of the Interpretation and General provisions Act provides that: "(I) Any reference in a statutory instrument to "the Act" or "the Ordinance" shall be construed as a reference to the Act or Ordinance, as the case may be, under which the instrument was made. (4) Any provision of a statutory instrument which is inconsistent with any provision of an Act, Applied Act or Ordinance shall be void to the extent of the inconsistency." 7 .10 The appellant also argued on the issue of requirement for inclusion of proof of service in the record of appeal. The appellant submitted that Order V Rule 2(1) of the Court of Appeal Rules provides an address of service by operation of the law and renders the requirement to show proof of service redundant. It was further submitted that while it is true that the respondent did not file a notice of address for service, which was a breach of the Rules in itself, the record of appeal contains the respondent's last known address for service at page 7, which is the address of the respondent' s Advocates who were served with the notice of appeal of 5th January 2022. 7 .11 The appellant concluded their arguments by submitting on the respondent's contention that the appellant had failed to include the defence filed in the Court below in the record of appeal, an act which is also in breach of the requirements under the Rules of Court. The appellant submitted that in view of the issues raised in its appeal, the inclusion of the defence on the record of appeal was entirely unnecessary. 8.0 OUR DETERMINATION OF THE PRELIMINARY OBJECTION 8.1 Before addressing the respondent' s argument about the appellant ' s non compliance with the Court rules, we have noted that the respondent has shortcomings in its conduct as well. 8.2 Order X Rule 9(16) of the Court of Appeal Rules stipulates as follows: "The respondent shall, within thirty days of being served with the record of appeal and heads of argument, deliver twenty-one hard copies and an electronic copy of the respondent's heads of argument together with a list of authorities of each head to be cited and a supplementa,y record of appeal, if any, to the Master and one copy to a party to the appeal." 8.3 Order X Rule 9(16) of the Rules, requires the respondent to serve the appellant with their heads of arguments within thirty (30) days of being served with the record of appeal and heads of arguments. The respondent, however, admitted to serving the appellant with the respondent' s heads of arguments on 16 January 2024. 8.4 The appellant served the record of appeal on the respondent on 11 March 2022, adhering to the Rules of Court, specifically Order X Rule 9(9) which prescribes a 14-day period for serving the record of appeal and J 14 appellant's heads of argument from the date of filing. According to Order X Rule 9(16) of the Court of Appeal Rules, the respondent was to serve his heads of argument on the appellant by 11 th April 2022. However, the respondent served these documents on the appellant on 16th January 2024, a delay of 1 year and 9 months beyond the due date. This delay is deemed inordinate, unreasonable, and inexcusable. 8.5 Moreover, concerning the respondent' s preliminary objection that the appellant is not in compliance with the provisions of Order X Rule 3(9), Order X Rule 6 and Order X Rule 9(5)( e) of the Court of Appeal Rules aforesaid, the Rules themselves under Order XIII Rule 5(1) stipulate that: 'A respo11de11t who intends to make any preliminary objection in relation to an appeal shall give notice of such preliminary objection to the Court and to the other parties within fourteen days from the date of receipt of the record of appeal.' 8.6 The aforementioned provision is clear and unambiguous. A respondent intending to raise a preliminary objection regarding an appeal must do so within 14 days from date of receiving the record of appeal. Therefore, the respondent's preliminary objection should have been presented through a formal application within the specified 14-day period after receiving the appellant' s record of appeal and heads of arguments, and not through delayed submissions or heads of arguments, as the respondent has done. Consequently, the respondent' s preliminary objection fails for these reasons. JIS 9.0 DETERMINATION OF THE APPEAL 9 .1 In our examination of the record, we note that the appellant filed the notice of appeal on 20 December 2021, but only submitted it to the Registry of this Court on 6 J anua1y 2022. Additionally, there is no proof of service on record to indicate when, or even if, the notice was served on the respondent. This constitutes a clear vio lation of Order X Rule 3(9), as mentioned above, which mandates that the notice should have been lodged and served within 14 days from filing date, in this instance, on or before 3 February 2022. 9 .2 Regarding the filing of the record of appeal, Order X Rule 6 of our Rules is also explicit and clear. It states that the record of appeal should be filed within 60 days from date of filing the notice of appeal. In this case, the record should have been filed by 17 February 2022. However, the record presented to us indicates that it was only filed on 3 March 2022. There is no evidence of leave of Court to show that the record was filed with the Court's permission, indicating that the appellant was also clearly in violation of the Rules of this Court. 9 .3 It is also evident that the appellant violated the provisions of Order X Rule 9(5) of the Rules by neglecting to include essential documents in its record of appeal. These documents include the proof of service of the notice of appeal on the respondent and some critical pleadings filed in the lower Court, which are crucial to the determination of the appeal. 9 .4 In considering these breaches, we find reassurance in our recent ruling in the case of Shalom Engineering Limited v Robby Kalonje2, where we addressed the impact of violating Order X Rule 3(9) of the Rules regarding the failure to lodge and serve the notice of appeal within 14 days, as well as the breach of provisions under Order X Rule 9(5) on the form and content of the record of appeal. While recognizing that each case of this nature must be evaluated based on its unique circumstances, we concluded that the failure to serve the notice of appeal on the affected party was a curable defect. In that particular case, the unique facts demonstrated that the party which was supposed to receive the notice had already seen it upon receiving the record of appeal, which contained the notice and memorandum of appeal. 9.5 Despite these breaches, we instructed the pa1ty in that case to formally serve the notice on the respondent within a specified timeframe. Moreover, we clarified that breaches arising from the content and form of the record of appeal, as mandated by Order X Rule 9(5) of the Court of Appeal Rules, were not fatal. Such breaches could be remedied by the appellant though the amendment of proceedings under Order VIII of the CAR, or by a respondent by way of filing a supplementary record of appeal in accordance with Order X Rule 10 of the CAR. 9.6 Nonetheless, a similar lenient stance cannot be adopted for breaches arising from violations of the provisions of Order X Rule 6 of the Court of Appeal Rules. JI 7 9.7 The specific rule states: 'Subject to an extension of time and to an order made under Order XIII rule 3, the appellant shall within sixty days after filing a notice of appeal- ( a) lodge the appeal by filing in the Registry twenty-one hard copies of the record of appeal together with heads of argument and an electronic copy of the record of appeal; (b) pay the prescribed fee in respect of the appeal; and (c) pay into Court the sum of two tlwusandfee units as security for the costs of the appeal.' 9.8 Furthermore, Rule 7 of the said Order X outlines the options available for the Court and the respondent in case of non-compliance with the provisions of Rule 6 of Order X of the Court of Appeal Rules. The provision states that: 'If an appeal is not lodged within the time stipulated under rule 6, the respondent may make an application to the Court for an order dismissing the appeal for want of prosecution, or alternatively,for such other order with regard to the appeal as the respondent may require.' 9.9 Notwithstanding that the respondent has not submitted a formal application but raised the issue of non-compliance with this provision as a question of jurisdiction in the main arguments opposing the appeal, it is evident from the said provisions that the Court has the option to dismiss Jl8 the entire appeal and only consider other alternative orders when the respondent has presented such other alternative options before the Court. 9 .10 Fu1ihennore, in a recent ruling in the case of George Chanda v Dangote Cement Zambia Limited 3, we upheld the decision of the single Judge to dismiss the appeal for failure to file the record of appeal within the prescribed timeframe. Applying the principles from that case to the present situation, we conclude that we have no jurisdiction to ente11ain an appeal that has been i1Tegularly filed before us, which includes a record of appeal filed outside the required time frame without leave of Court. 10.0 CONCLUSION 10.1 Having determined as we have, the appeal before us is dismissed for want of jurisdiction. Given the conduct of both parties in this matter, paiiicularly the way in which the appellant attempted to prosecute the appeal and the way the respondent defended the same, giving rise to our conclusions above, we order each party to bear its own costs. C. K. Makung COURT OF APPEAL JUDGE COURT a, SC JUDGE "---- ~A. Sharpe-Phi i COURT OF APPEAL JUDGE JI 9