Chikoti v Zesco Ltd (SCZ 8 311 of 2013) [2020] ZMSC 154 (4 December 2020)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: SCZ/8/311/2O13 Appeal No. 31/2014 GILBERT CHIKOTI APPELLANT AND ZESCO LIMITED ESPONDENT Coram: Hamaundu, Malila and Chinyama, JJS on 6th October, 2020 and 4th December, 2020. For the Applicants: Mr. K. F. Bwalya with Ms. Mulenga Banda of KBF 8s Partners For the Respondents: Mr. P. Mulenga - Inhouse Legal Counsel, Zesco Limited. RULING MALILA, JS, delivered the Ruling of the Court. Cases referred to: 1. Chongesha v. Securicor (2014) (2) ZR 208 2. Ruth Kumbi v. Robinson Kaleb Zulu (2009) ZR 183 3. Elizabeth Catherine Cook v. Moses Mpundu & 2 Others (Appeal No. 207/2015) 4. Mutantika & Another v. Chipungu (SCZ Judgment No. 94 of 2012) 5. NCF Africa Mining Pic v. Techpro Zambia Limited (2009) ZR 236 R2 Legislation referred to: 1. Supreme Court Rules, Chapter 25 of the Laws of Zambia. 2. Supreme Court (Amendment) Rules, 2012 (Statutory Instrument No. 26 of 2012) MALILA JS, delivered the ruling of the court. 1.0. INTRODUCTION 1.1. The appellant’s appeal was scheduled for hearing before us on the 14th July, 2016. A notice of hearing to that effect was issued and sent to the parties. 1.2. On the day of hearing, however, none of the parties or their legal representative were present. In those circumstances, we struck off the appeal with liberty to restore within 30 days. We further directed that if no application to restore was made within the stated period, the matter would stand dismissed. 1.3. The present motion, filed on the 6th February, 2020 - over four years later - is for leave to restore the matter out of time. It is expressed to be made pursuant to rule R3 71(1) and (2) of the Supreme Court Rules, Chapter 25 of the Laws of Zambia. 2.0. THE APPLICANT’S CASE IN THE MOTION 2.1. The motion is supported by an affidavit sworn by Mr. Kelvin Fube Bwalya, learned counsel for the applicant. 2.2. He avers that the applicant had filed the record of appeal and heads of argument on 25th February 2014, and was, thereafter, making follow up efforts to obtain a date of hearing. A letter dated 5th May 2015, from the applicant’s law firm addressed to the Master of the Supreme Court requesting for a date of hearing, was exhibited in the affidavit in support as evidence of the appellant’s efforts to secure a date of hearing. 2.3. The affidavit also narrates how a search conducted on the court file uncovered a transcript of proceedings, revealing that the matter came up for hearing on the 14th July 2016, and that there was no attendance by either party or their representative. The search further R4 disclosed that the court made the order that it did as captured at paragraph 1.2. 2.4. Mr. Bwalya further asserts in his affidavit that he was not, until the search was done, aware of the order made by the court as that order was not in fact served on the applicant’s advocates. 2.5. Given the circumstances as explained in the foregoing paragraphs, the application to restore could not be made earlier, let alone within the time specified in the order of the court, and hence the present motion. 2.6. Of moment to the present motion are paragraphs 9 and 10 of the affidavit in support which read as follows: 9. That the delay in filing an application to restore is not intentional, I was not aware that the Appeal was cause listed and that it had been dismissed. 10. That premised on the foregoing, I seek leave of this court to restore this matter to the active cause list so as to afford an opportunity for the appellant’s appeal to be determined by this Honourable Court as the record will show, everything had been done by the Appellant. R5 2.7. At the hearing of the motion, Mr. Bwalya reiterated the point that counsel for the applicant did not attend court when the appeal came up because his partner was indisposed and he himself did not know that the matter had been scheduled to come up. He was equally unaware of the order made by the court to the effect that unless the matter was restored within 30 days it would stand dismissed. This order was not, according to counsel, served on the applicant’s advocates. 2.8. Citing our decision in Chongesha v. SeciiricorW as authority, the learned Counsel submitted that an ‘unless order’ has no effect if it is not served on the party intended to be bound by it. The learned counsel also referred to our decision in the case of Ruth Kumbi v. Robinson Kaleb Zulu f2>. 2.9. Mr. Bwalya prayed that on the basis of the events as they transpired, the applicant deserves to be given an opportunity to be heard, especially granted that the R6 applicant had filed its record of appeal and heads of argument as necessary. 3.0. THE RESPONDENT’S POSITION ON THE MOTION 3.1. The respondent opposed the motion. To this end, an affidavit in opposition to the motion, sworn by Paul Mulenga, Principal Legal Officer of the respondent, was filed. There was also filed skeleton arguments in opposition to the motion. 3.2. In the affidavit in opposition, it was averred that the present application to restore was being made outside the terms of the order made by the court when it struck out the matter on the 14th July, 2016. 3.3. Counsel also deposed that even if the court was minded to entertain the application, the reasons furnished by the applicant are insufficient to justify restoration. 3.4. He further averred that the appellant’s counsel admitted that the notice of hearing had been served on his firm but was not brought to his attention. Such R7 lapses according to counsel, should not be the concern of the court. The learned counsel also complained that a period of four years before an application to restore makes this case an inappropriate one for the court to exercise its discretion to restore. 3.5. In the skeleton arguments filed in support, the provisions of rule 71 of the Supreme Court rules as amended were reproduced, followed by an explanation of the steps which ought to have been taken as well as the timelines. More importantly, counsel dwelt on the sufficiency of reasons for the absence. He submitted that the delay in bringing the application was inordinate; the reason for the absence insufficient; and the conduct of the applicant was lax. 3.6. On the service of the order counsel contended that it is not the practice of superior courts to serve orders on litigants. Advocates become aware of court orders when they are read in court, when drawn up by an advocate, R8 signed by the court and served, and when the advocate conducts a search on the file. 3.7. In the present case, the applicant became aware of the court’s order through a search that was conducted on the file. However, in this particular case, they had been served with a notice of hearing prior to the order and the court had no responsibility to serve the ‘unless order’ which it made subsequently. 3.8. Counsel also contended that if the court agrees that the appeal stood dismissed, it cannot in the same breath be revived. He quoted, as authority for that submission, a passage from our judgment in the case of Elizabeth Catherine Cook v. Moses Mpundu & 2 Others!3) where we stated as follows: Often times when the court strikes a matter off its cause list, it gives the plaintiff or applicant that liberty to apply to restore within a specified period of time, failing which the matter stands dismissed... R9 3.9. Counsel also referred to our judgment in the case of Mutantika & Another v. ChipungvW where we stated among other things that: On our part, we have always underscored the need for parties to strictly adhere to the Rules of Court and that the failure to comply can be fatal to a party’s case. This is the position we took in NCF Africa Mining Pic v. Techpro Zambia Limited!5! in which we made it clear that litigants who fail to strictly adhere to rules of court risk having their appeals being dismissed and we dismissed the appeal in that case. We reiterate this position in the current case. Counsel thus implored us to reject the application to restore. 4.0. ANALYSIS AND DECISION 4.1. We are grateful to both counsel for their pointed arguments. 4.2. The sole issue for determination is whether this is an appropriate case in which we should order restoration of the appeal to the cause list. This is particularly in light of two grave factors, namely, first that what we made on the 14th July 2016, was an ‘unless order’ of RIO dismissal if not restored within 30 days. The order was consummated by the appellants failure to restore within the period prescribed. Second, it has taken nearly four years since the order was made, for the appellant to make the application. 4.3. As the learned counsel for the respondent correctly observed in his submission, it is rule 71 of the Supreme Court Rules, Chapter 25 of the Laws of Zambia which is relevant in the context of the present motion. 4.4. Rule 71 so far as is material for our purpose provides as follows: (1) Subject to the provisions of rule 69, if on any day fixed for the hearing of an appeal - (c) no party appears either in person or by practitioner, the appeal may be adjourned, struck out, or dismissed. (2) Where any appeal is dismissed, allowed, or struck out under the provisions of sub-rule (1), any party who was absent may apply to the court for the re-hearing or hearing of the appeal, as the case may be, and, where it is proved that there was sufficient reason for the absence of such party, the court may order that the Rll appeal be restored for hearing upon such terms as to costs or otherwise as it thinks fit. 4.5. Rule 71(2) was by Supreme Court (Amendment) Rules, 2012 (Statutory Instrument No. 26 of 2012) amended by requiring the application made under that sub­ section to be done within seven (7) days. 4.6. The present application comes after a dismissal on an ^unless order.’ In other words, the appeal stood dismissed when the appellant failed to apply for restoration in the period prescribed. 4.7. We must also note that while the amendment rule brought about by Statutory Instrument No. 26 of 2012 required the application to be made within seven (7days) of the order, we gave the appellant thirty (30) days to apply. This, however, is not an issue that arises in the present motion and we shall, therefore, not dwell on it. R12 4.8. The applicant did not file the application to restore within the stipulated period. This was, according to Mr. Bwalya, because the order we made on the 14th July 2016, was not communicated to the appellant and its counsel. Yet, counsel for the respondent has argued that the excuse by the appellant should not be entertained because the appellant received a notice of hearing following which he should have been prompted to conduct a search on the file. 4.9. We are satisfied with the explanation offered on behalf of the appellant that given the concatenation of events that preceded and followed the hearing on the 14th July 2016, an application to restore within the stipulated time could not possibly be made. In the absence of actual communication of the ‘unless order’ to the party intended to be prompted to take a step, the order is deprived of its effect. The case of Chongesha v. SecuricorW cited by Mr. Bwalya, is in this regard instructive. R13 4.10. We thus hold that the reasons proffered by the applicant for the delay are sufficient. Not only that the respondent, who equally did not appear at the hearing, has not demonstrated that it stands to suffer any prejudice if the appeal were restored and heard on its merits. 4.11. For the reasons we have given, we allow the motion. The appeal shall be cause listed for hearing in the earliest available session of this court. 4.12. Costs shall be in the cause. . (EL. E. M/Hamaundu SUPREME COURT JUDGE Malila SUPREME COURT JUDGE J. Chinyama SUPREME COURT JUDGE