Lilamono v Fulilwa (Appeal 119 of 2014) [2017] ZMSC 263 (18 April 2017)

JI IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 119/2014 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: KINGSLEY LILAMONO APPELLANT AND- MARY FULILWA RESPONDENT Before: Phiri, Muyovwe and Chinyama, JJS. On 7th March, 2017, 4th April, 2017and on 18th April, For the Appellant: Messrs Kuta Chambers (Absent). For the Respondent: Mr. C. Mwiinga of MAK Partners. JUDGMENT CHINYAMA, JS, delivered the Judgment of the Court. Cases referred to: 1. Pule Elias Mwila and Others v ZSIC Limited, SCZ Judgment No. 35 of 2015. 2. NFC Africa Mining PLC v Techro Zambia Limited (2009) ZR 236 Statutes referred to: 1. The State Proceedings Act, Cap 71 of the Laws of Zambia, section 12 (1). 2. The Supreme Court Act, Chapter 25 of the Laws of Zambia, Rules 12 (1); 49 (1) (2) 3. The Supreme Court Rules as amended by Statutory Instrument No. 26 of 2012, The Supreme Court Act, Chapter 25 of the Laws of Zambia. J2 On 4th April, 2017, at Kabwe, we dismissed the appeal herein after hearing the respondent’s preliminary objection on a point of law and stated that we shall give our reasons for the decision later, which we now do. The background to the decision is that the respondent had sued the appellant as well as two others namely, one Nakanda, a Police Officer and the Attorney General as 1st, 2nd and 3rd Defendants in that order before the High Court at Livingstone seeking damages for malicious prosecution. The respondent had alleged that the appellant had procured Mr. Nakanda to arrest, charge and maliciously prosecute her. The Attorney General was, of course, sued by virtue of section 12(1) of the State Proceedings Act, Chapter 71 of the Laws of Zambia. After considering the evidence of the parties the court found in favour of the respondent and awarded her damages in the sum of K5,000,000.00 (non-rebased) with interest. The High Court judgment was delivered on 3rd December, 2012. The appellant was displeased but apparently remained oblivious to the passage of time. He launched his appeal against the judgment by delivering the Notice of Appeal to the High Court J3 District Registry at Livingstone on 30th January, 2013. The Notice of Appeal was sealed together with the Memorandum of Appeal at the Supreme Court Registry at Lusaka on 7th February, 2013. On 18th July, 2014, the Record of Appeal together with Heads of Argument in support of the grounds of appeal was filed on behalf of the Appellant. On 14th January 2015, however, Counsel for the respondent filed a Notice to Raise a Preliminary Objection (on point of law) against the appeal on the ground that the appeal was filed outside the stipulated thirty (30) days period within which the appeal ought to have been regularly filed without the appellant obtaining leave to appeal out of time contrary to rules 12(4) and 49(1)(2) of the Supreme Court Rules (SCR), Chapter 25 of the Laws of Zambia. Heads of Argument in support of the notice were filed in which it was submitted that the requirement for a party who has delayed to appeal, to obtain leave of court to appeal out of time goes to the jurisdiction of the court to determine the appeal. Consequently, we were urged to dismiss the appeal. By the time we convened to hear the preliminary objection at Ndola on the 7th March, 2017, the appellant had not filed any J4 opposition to the objection. At the hearing we were informed by Mr. Tafeni, of the appellant’s advocates’ firm that counsel having conduct of the matter, Ms Suba, was indisposed in that she had a bereavement which had occurred that same day. He asked for an adjournment which we granted for the matter to be heard at the Kabwe Session. On the return date at Kabwe, 4th April, 2017, neither the appellant nor his advocates were in attendance and they did not cause any representation. There was also still no document in opposition to the objection filed by or on behalf of the appellant. Mr. Mwiinga informed us that notwithstanding the presence of counsel from the firm representing the appellant at the Ndola Session which showed that they were aware of the return date, copies of the Notice to Raise a Preliminary Objection and Heads of Arguments had again been served on the appellant’s advocates and that they were further notified of the new return date. Counsel referred to the affidavit of service dated 3rd April, 2017 attesting to the fact that the documents were again served on the appellant’s advocates. Being satisfied that the appellant’s advocates were aware of the return date and had neglected to attend the hearing or to make J5 representations for their absence, we allowed Mr. Mwiinga to proceed with the preliminary issue and Counsel then informed us that he was relying entirely on the Heads of Arguments. We have considered the objection raised and the arguments. Indeed the law requires that an appeal in a civil matter be lodged within thirty (30) days of the judgment complained of unless leave to appeal out of time is granted. In the case before us, it is clear that more than thirty (30) days, infact fifty eight (58) days, or so had expired before the appellant went to the Livingstone High Court District Registry to lodge his appeal. Clearly, the appellant was way outside the stipulated time and should have obtained leave of court to file the appeal. This he did not do. It is obvious that the acceptance or receipt of the Notice and Memorandum of Appeal which were clearly being filed well beyond the time prescribed by the rules of court without leave by the respective registries at Livingstone and Lusaka was an error. The mere sealing of the Notice and Memorandum of Appeal does not cure the defect in the court process filed by the appellant. We made this position clear in the case of Pule Elias Mwila and Others v ZSIC Limited1. We reiterate that position in the current case. We wish to once again J6 send a message to litigants before courts that rules of court are meant to regulate and aid the orderly dispensation of justice and cannot lightly be flouted as that would be a recipe for anarchy in the judicial system. In NFC Africa Mining Plc v Techro Limited2, we warned that failure to comply with the rules of court can be fatal to a party's case. In the current case, the appeal was irregularly filed as it was out of time and no leave of court was sought before it could be filed. It quite clearly offended rule 49(2)of the SCRand as argued by Mr. Mwiinga, went to the jurisdiction of the court to determine the appeal. It is for the foregoing reasons that we dismissed the appeal. Costs are for the respondent, to be taxed in default of agreement. SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE J. CHIN YAM A SUPREME COURT JUDGE