Felimart Investment and Anor v Cooperative Muratori 4 Cementist- CMC Di Revenna Limited (In Liquidation) and Anor (Application No.67/2020) [2021] ZMCA 282 (21 April 2021)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA Application No.67 /2020 .., , . 1 l1PR 2021 (Civil Jurisdiction) BETWEEN: - , ....... .. . ,/,,,.rt _i ,,,..#' ;• __ ,,,,,. FELIMART INVESTMENT' \ . ' '-, ,, . \ RAPID GLOBAL FREIGHT LT!l1 AND COOPERATIVE MURATORI 4 CEMENTIST - CMC DI REVENNA LIMITED (IN LIQUIDATION) \ 1 ST APPLICANT 2ND APPLICANT 1 ST RESPONDENT EPIROC ZAMBIA LIMITED 2ND RESPONDENT Chashi, Lengalenga and Majula, JJA On 20th January 2021 and 21 st April 2021 For the Applicants Mr. R. Musumali of SLM Legal Practitioners For the 1s t Respondent Mr. R. Mainza of Mainza & Company For the 2 nd Respondent Mr. M. Chileshe of Eric Silwamba, Jalasi and Linyama Legal Practitioners. RULING MAJULA JA, delivered the Ruling of the Court. Legislation referred to: l. The Court of Appeal Rules SI 65 of 2006 1.0 INTRODUCTION R2 1.1 At the time the matter was heard, our learned sister Justice F. M. Lengalenga sat with us but she has since retired. This ruling, therefore, is by the majority. 1.2 This is a ruling on the 2 nd respondent's application to raise preliminary issues challenging a notice of motion filed before this court by the applicants. It was made pursuant to Order 14A and 33 of the Rules of the Supreme Court (white book) 1999 edition. It was also supported by an affidavit sworn by Mwape Chileshe. 2.0 BACKGROUND 2.1 The brief background is that on 14th May, 2019, the applicants commenced an action in the High Court seeking an order to compel the 2 nd respondent to release certain m1n1ng equipment which was to be kept in the applicants' bonded warehouse. That this was necessary to ensure compliance with customs and excise legislation pending payment of tax liabilities to the Zambia Revenue Authority (ZRA). 2.2 An application for interim preservation of the equipment was denied at inter parte stage by both the High Court and subsequently by a single Judge of this court, hence the motion before the full bench. It is against the notice of motion which is pending determination that the 2 nd respondent's advocates have raised the following issues in limine: R3 (i) (ii) The Notice of Motion is irregular and non-compliant with the Procedural Rules of this Honourable Court as the index appears in both Volume One and Two of the Record of Notice of Motion and therefore offends the provisions of ORDER X Rule 9(5) (a) and the provisions of ORDER X Rule 9 (7) of the Court of Appeal Rules, Statutory Instrument No.65 of2016; The Notice of Motion is irregular and non-compliant with the Procedural Rules of this Honourable Court as the Certificate of Record of Notice of Motion which appears at page 1 offends the provisions of ORDER X Rule 9 (5) (b) of the Court of Appeals Rules, Statutory Instrument No. 65 of 2016 as it is addressed to the Master of the Court of Appeal and not the Registrar of the Court of Appeal. The purported Certificate is also not signed. (iii) The Notice of Motion for an Order for Interim Preservation of Property is not supported by a competent and valid Affidavit as the purported Affidavit in Support of the Notice of Motion for an Order for Interim Preservation of Property and the attendant Certificate of Exhibits which appear at pages 5 and 9 of the Record of Motion VOLUME ONE are not duly commissioned; (iv) The Record of Notice of Motion is irregular and non compliant with the Procedural Rules of this Honourable Court as the Notice of Motion is not filed together with the requisite Heads of Argument but conversely contained at pages 192 to 198 what the Applicants term as submission in support of Notice of Motion . . 3.0 APPLICANT'S SUBMISSIONS R4 3.1 The gist of the submission in respect of the 1st issue raised was that the inclusion of an index in both volume one and two of the record of the Notice of Motion is irregular as it contravenes Order X Rule 9 (7) of the Court of Appeal Rules. 3.2 On the 2 nd issue the learned Counsel observed that the Certificate of Record is incompetent for being addressed to the Master of the Court of Appeal instead of the Registrar contrary to the provisions of Order X Rule ( ( 5) (b) of the CAR. 3.3 Counsel for the 2 nd respondent went on to note that the affidavit in support of the Notice of motion which is not signed by the deponent offends the provisions of Order 41 / 1 / 11 of the Rules of the Supreme Court which provides that an affidavit must be signed by the deponent. 3.4 Finally, the 2 n d respondent's Counsel brought to our attention the fact that the applicant filed what they called submissions instead of h eads of arguments as required by Order X Rule 6 of the Court of Appeal Rules . Counsel ended by referring us to some case authorities where the courts have emphasized the desirability of parties to comply with procedural rules. 4.0 RESPONDENT'S SUBMISSIONS 4.1 The applicants opposed the application. To this end an affidavit in opposition sworn by Raymond Musumali. A RS combined list of authorities and argument 1n response were also filed on 28 th January, 2021. 4.2 The thrust of the submissions in respect of the 1st issue is that the record of Notice of Motion does not offend any provision of the Rules of the Court. It was argued that Order X of the Rules of this court only applies when there is an appeal pending before the Court of Appeal. In this vain Counsel quoted Order X Rule 1 of the Court of Appeal Rules (CAR) which reads as follows: ((This Order applies to appeals from the High Court or a quasi -judicial body that are not under the exclusive jurisdiction of the Constitutional Court. 4.3 Pertaining to the 2 n d issue, Counsel for the applicants contended that Form III in the schedule of the Court of Appeal Rules require s that the Notice of Motion should be addressed to the Master of the Court of Appeal. 4. 4 Further reliance was placed on Order V Rule 1 of the CAR which provides that a summons, warrant, order, rule, notice or other document may be signed by a Judge of the Court or by the Master. 4.5 Moving on to the 3 rd issue, Counsel submitted that the impugned affidavit was in fact duly commissioned on 16th October, 2020 before a Commissioner for Oaths as shown by exhibit "RM 1" of the affidavit in opposition. R6 4.6 In concluding on the 4 th issue Counsel argued that a Notice of Motion is an interlocutory application which does not require the filing of heads of arguments. That this is because there are no grounds of appeal. We were accordingly urged to dismiss the preliminary issues raised with costs. 5.0 DECISION OF THE COURT 5.1 We have considered the application before us and the arguments from both Counsel. We note that there are several issues that the 2 nd respondent has raised in relation to the Notice of Motion filed by the applicants herein. We shall deal with each issue sequentially. 5.2 Regarding the first issue, Counsel for the 2 n d respondent is grappling with the fact that the applicant included an index in both volume one and two of the Notice of Motion. The basis of the argument is that it offends the provisions of Order X Rule 9 of the CAR. 5.3 After perusing through Order X Rule 9 of the Court of Appeal Rules , we cannot agree more with Counsel for the 2 nd respondent that indeed the cited Rule requires that the index shall appear in the 1st volume only. However, from our stand point, we think that the infraction by the applicant is not fatal but curable. 5.4 Moving to the 2 nd issue, the complaint is that the certificate of record is addressed to the Master of the Court of Appeal as R7 opposed to the Registrar. It was also observed that the said Certificate was not signed. 5.5 In our judgment the provisions of Order IX Rule 5 (b) relates to criminal appeals and is therefore not applicable to civil appeals or applications. The 2 nd respondent's argument 1s therefore misguided and it is accordingly dismissed. 5.6 Pertaining to the 3 rd issue, the grievance is that the Certificate of exhibits and the affidavit in support are not duly signed and commissioned. As rightly observed by Counsel for the 2 nd respondent, affidavits and Certificate of exhibits must be signed and duly commissioned before they can be relied upon or used in court. Be that as it may, we are of the considered view that the omission is nonetheless curable as it can be rectified by withdrawing and re-filing of the record. 5. 7 Turning to the 4 th issue, the protest is that the notice of motion was not filed with the requisite heads of arguments but with submissions. The question that arises is whether it is mandatory for Notice of Motions to be filed with heads of argument. Our scrutiny of Order X Rule 2(8) which governs what should be contained in a notice of motion is that it is not mandatory to have heads of arguments. 5.8 All in all the preliminary issues raised by the 2 nd respondent are not fatal to the Notice of Motion as they are curable. They are accordingly dismissed. 5.9 Costs in the cause. J. Chashi COURT OF APPEAL JUDGE F . M. Lengalenga COURT OF APPEAL JUDGE _ fllll di .. J/J .......... -~,::--~-~~ -:~ ............... . B. M. Majula COURT OF APPEAL JUDGE