Joseph Lubasi v Agnes Mate (CAZ/08/470/2021) [2022] ZMCA 157 (6 September 2022)

IN THE COURT OF APPEAL FOR ZAMBIA AT THE LUSAKA DISTRICT REGISTRY HOLDEN AT LUSAKA ( Civil Jurisdiction) CAZ/08/470/2021 BETWEEN: JOSEPH LUBASI AND AGNES MATE Appellant Respondent Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 6 th September 2022 For the Appellant: Mr. B. J. Mulenga of Messrs Barnaby & Chitundu Advocates For the Respondent: Ms. K. Kabalata of Messrs Chalwe & Kabalata Legal Practitioners Ex tempore Ruling Cases referred to: 1. Twampane Mining Co-operative Society Limited v E & M Storti Mining Limited (2011) Vol 3 ZR 67 Legislation referred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 of 2016 This is an application brought by the Respondent on 16th August 2022 pursuant to Order X Rule 3(9) and 9(9) of the Court of Appeal Rules. Rl By this application, the Respondent seeks to dismiss the Appellant's appeal for abuse of process, irregularity and want of prosecution for the following reasons namely: 1. The Appellant has failed and/ or neglected to comply with Order X Rules 3(9) and 9 (9) of the Court of Appeal Rules , 2016 as he failed to serve the Notice of Appeal and Memorandum of Appeal on the Respondent within the prescribed period of time. 2. The Appellant's application in the Court below granting the Order to appeal to this Court was defective. 3. The matter is res judicata as it was already before the Court of Appeal and was dismissed for want of prosecution. The application is supported by an affidavit sworn by one Kasumpa Mwansa Kabalata, an Advocate seized with conduct of the matter on b eh a lf of the Respondent. She deposes that the Honourable Kawimbe, J delivered judgment in a matter between the parties on 10th August 201 7 in which she set aside the decision of the lower Court and referred the question of assessment and share of the m atrimonial property to the learned Deputy Registrar (DR) of the High Court. Pursuant to the above, the said DR delivered a ruling on the matter on 28th January 2019. Being dissatisfied with the said ruling of the DR, the Appellant obtained an order for leave to appeal out of time on 18th April 2019 and accordingly on 9 th Octa ber 2019, he filed an appeal b efore a Judge of the High Court against the Ruling. R2 Before the appeal was heard by the Judge in the lower Court, the Respondent raised a preliminary issue seeking the Court's determination as to whether the appeal was properly before it, arguing that being an assessment, the appeal ought to have been before the Court of Appeal. Agreeing with the Respondent in a ruling of 19th March 2021, Muma, J dismissed the appeal holding that it was before the wrong Court. Being dissatisfied with this decision of Muma, J, the Appellant filed a Notice of Appeal before this Court on 19th April 2021. The Appellant not having taken any steps to prosecute this appeal by filing the Record of Appeal within the prescribed sixty-day time frame, on 23rd June 2021, the Respondent brought an application to dismiss the appeal for want of prosecution, which order a single Judge of the Court of Appeal granted with costs on 4 th August 2021. The parties executed a consent order on 30th November 2021 agreeing that the Appellant would pay the Respondent a sum of K25,000 in respect of the Respondent's costs in the appeal. The Respondent contended that these costs had, to date, not been paid. The Respondent further contended that strangely, following the ruling of the Court of Appeal, the Appellant brought an application before the learned DR for leave to appeal out of time against the ruling of the DR of 28th January 2019 . An Order was granted by the learned DR on 10th November 2021 despite the Appellant having a pplie d after two years from the date of the ruling. R3 Unbeknown to the Respondent, on 6 th December 2021, the Appellant proceeded to file a Notice of Appeal into the Court of Appeal against the Ruling of the learned DR of 28th January 2019. Despite filing this appeal in this Court, the Appellant has not served the Notice of Appeal and accompanying Memorandum of Appeal on the Respondent or her Advocates. Similarly, the Appellant had not served the Record of Appeal and accompanying Heads of Argument which were filed on 4 th February 2022 until 13th July 2022. As a result, the Respondent has not had sufficient time to respond to the Appellant's actions. The Respondent urged this Court to dismiss the appeal for being an abuse of Court process, irregularity and want of prosecution. There was no opposing affidavit filed into Court. The rnatter was scheduled for hearing on 6 September 2021 . On the said date, both respective Counsel were 1n attendance. Respondent's Counsel relied on the affidavit in support and the list of authorities and skeleton arguments of 16th August 2022. I have carefully considered the affidavit evidence and the arguments filed by the respective parties Counsel. I am grateful to Counsel for the arguments but will not repeat them hereunder. In relation to the first argument that the Appellant failed and or neglected to serve the Record of Appeal and Memorandum of Appeal on the Respondent within the prescribed time. R4 Counsel for the Respondent relied on the provisions of Order 10 Rules 3(9) and 9(9) of the Court of Appeal Rules which provide that: '3(9} A notice of appeal, together with the memorandum of appeal shall be lodged and served within a period of fourteen days, all parties directly affected by the appeal or on their practitioner.' '9(9} The Appellant shall within fourteen days of filing the record of appeal together with the heads of arguments under sub rule (BJ, serve a copy thereof on each party who has been served with the notice of appeal and has filed a notice of address for service, except that if there is more than one respondent represented by one practitioner, it shall be sufficient to serve one copy on that practitioner.' I do concur with the Respondent's Counsel that the above provisions of Order 10 Rules 3(9) and 9(9) are unambiguous and couched in mandatory terms with the use of words like 'shall'. Under Order X Rule 3(9) of the CAR, an Appellant is required to serve the Notice of Appeal upon a Respondent within fourteen days of lodging the same. Similarly, Under Order X Rule 9(9) of the CAR, an Appellant must serve the Respondent with a copy of the Record of Appeal and Heads of Argument within fourteen days of filing the Record of Appeal into Court. RS The Respondent contends that in this case, the Appellant filed the Notice of Appeal on 6 th December 2021 and according to the Rules ought to have served the Respondent with the said documents within fourteen days from the date thereof, i.e., by 20t h December 2021. Also, that the Appellant filed the Record of Appeal on 4 th February 2022 and therefore ought to have served those documents on the Respondent by 17th February 2022. Counsel for the Respondent however contends that the Appellant only served the Record of Appeal upon the Respondent on 12th July 2022, some five months later but has not to date served the Notice of appeal. The contention is that the Appellant's actions of not serving the Respondent with the process was deliberate to disadvantage her in that she has not had time to defend the appeal. Counsel argued that the Appellant's contravention of statutory provisions is an abuse of Court process and ought to be sanctioned. The Respondent, through his counsel, conceded that it has not complied with the Rules of this Court. Therefore, it is undebatable that the Appellant failed to comply with the provision of the Court of Appeal Rules in relation to service of process upon the Respondent. The Appellant's counsel argued that the non compliance was not fatal and that the Court could exercise its discretion in the interests of justice. The issue that falls for consideration thus is: what then is the effect of the Appellant's failure to comply with the provisions of the law in relation to service of documents? R6 Counsel for the Respondent referred the Court to the case of Twampane Mining Co-operative Society Limited v E & M Storti Mining Limited, where the Courts held that 'those who choose to ignore rules of Court, do so at their own peril.. and that a party is obliged to comply with Court procedure more so in a case where rules are mandatory.' The foregoing authority is instructive that parties are obliged to comply with mandatory provisions and where they choose to ignore the Court rules, they do so at their own peril. It is evident that the Appellant has been in blatant breach of mandatory provisions of the Court of Appeal Rules. This breach is in m y opinion fatal to the continued proceedings of the Appeal as it seriously prejudices the Respondent in that she has not had an opportunity to respond to the appeal. Having reached the said conclusion on the first ground, consideration of the other grounds thus becomes academic. I accordingly dismiss this appeal for flouting the provisions of the Court of Appeal Rules to the detriment of the respondent. I award costs to the respondent, to be taxed in default of agreement. Dated at Lusaka this 6 th September 2022. AA ~ f; :A. Sharpe-P ir; COURT OF APPEAL JUDGE R7