Gilbert Chikoti v Zesco Limited (Appeal No.31/2014) [2020] ZMSC 176 (4 December 2020)

I _. { IN THE SUPREME COURT OF ZAMBIA SCZ/8/311/2013 HOLDEN AT LUSAKA AppealNo.31/2014 (CIVIL JURISDICTION) BETWEEN: GILBERT CHIKOTI APPELLANT AND ZESCO LIMITED ESPONDENT Coram: Hamaundu, Malila and Chinyama, JJS on 6 th October, 2020 and 4 th December, 2020. For the Applicants: Mr. K. F. Bwalya with Ms. Mulenga Banda of KBF & Partners For the Respondents: Mr. P. Mulenga - lnhouse Legal Counsel, Zesco Limited. RULING MALILA, JS, delivered the Ruling of the Court. Cases referred to: 1. Chongesha v. Securicor (2014j (2) ZR 208 2. Ruth Kumbi v. Robinson Kaleb Zulu (2009) ZR 183 3. Elizabeth Catherine Coolc v. Moses Mpundu & 2 Others (Appeal No. 207/2 015) 4 . Mutantilca & Another v. Chipungu (SCZ Judgment No. 94 of 2012) 5. NCF Africa Mining Plc 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 6 th 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 RS 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. SecuricorOJ 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 121. 2.9. Mr. Bwalya prayed that on the basis of the events as they transpired, the applicant d e serves to be given an opportunity to be heard, especially granted that the 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(3J 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. Coun sel also referred to our judgm ent in th e case of M utantik a & Anoth er v. Chipungu(4J wh ere we st a ted among oth er 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 Plc v. Techpro Zambia Limitedf5J 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. Cou nsel thus implored us to reject the application to r estore . 4 .0 . ANALYSIS AND DECISION 4 . 1. We are grateful to both cou nsel for their pointed arguments. 4.2. The sole issue for determination is wh ether this is an appropriate case in wh ich we should order restoration of the appeal to t h e cause list. This is particularly in light of two grave factors, n amely, first that what we made on the 14 th July 2016, was an 'unless order' of RlO dismissal if not restored within 30 days. The order was consummated by the appellants failure to restore within the p eriod prescribed. Second, it has taken n early four years since the order was made, for the appellant to make the application. 4.3. As the learned counsel for the r espondent 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 7 1(2 ) was b y Supreme Court (Amendment) Rules, 20 12 (Statutory Instrument No. 26 of 20 12) 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 b e made within seven (7days) of the order, we gave the appellant thirty (30) d ays to a pply. This, h owever, 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 b e prompted to take a step , the order is deprived of its effect. The case of Chongesha v. SecuricorOJ 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 a ppear 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 b e cause listed for hearing in the earliest available session of this court. 4 . 12. Costs shall be in the cause. ·········i ·M.~~~········· SUPREME COURT JUDGE ···· ·· ······· ··~ ······· ·· ·· ············· ------ M. Malila SUPREME COURT JUDGE . . . . . ~ :-. . . .. . . J. Chinyama SUPREME COURT JUDGE