Mahesh Popat v Resham Maheshbha Popat (APP. NO. 69 OF 2023) [2024] ZMCA 355 (21 March 2024)

IN THE COURT OF APPEAL OF ZAMBIA APP . NO. 69 OF 2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN : MAHESH POPAT AND lllJu ~ l MAR 1014 . ] ~ C1v iL ,\_1.;,STRY 2 Po_ BO)( 50067. \.\)f)fi'.~ APPELLANT RESHAM MAHESHBHA POPAT RESPONDENT Coram : Mchenga DJP, Chishimba and Muzenga, JJA On 30 th January 2024 and 21 st March 2024 For the Appellant : C. Chuula with C. Mumba , Chibesakunda For the Respondent: K. Daka , Christopher Russell Cook & & Co. Advocates Co . RULING Mchenga DJP, delivered the ruling of the court Cases referred to : 1 . Te ddy Puta v . Ambindwire Friday , SCZ Appeal No . 30 of 2016 2 . NFC Africa Min ing PLC v . Techno Zambia Limited [2009] Z . R . 236 3 . Lilian Chuma Mwanapape v . Patel Chibba Jagdish , SCZ Appeal No. 185 of 2016 4 . Access Bank Zambia Limited v . Group Five/ZCON R2 Business Park Joint Venture (Suing as Firm), SCZ/8/53/2014 5. African Banking Corporation Zambia v. Mubende County Lodge Limited, SCZ Appeal No. 116 of 2016 6. Jonathan Van Blerk v. The Attorney General & 5 Others, SCZ Appeal No. 7 of 2020 7. Barclays Bank Zambia PLC v. Njovu & Others, SCZ/8/21/2019 8. Shoprite Holdings Limited and Another v. Mosho and Lewis Nathan Advocates (sued as firm), SCZ Appeal No. 86 of 2013 9. Sothern Cross Motors v. Steven Maimbika, CAZ/08/102/2018 10. Stanley Mwambazi v. Morrester Farms Limited [1977] Z. R. 108 11. Leopold Walford (Z) Limited v. Unifreight [1985] Z. R. 203 Legislation referred to: 1. The Constitution of Zambia Act No. 2 of 2016 2. The Supreme Court Rules, Chapter 25 of the Laws of Zambia 3. The Court of Appeal Rules Statutory Instrument No. 65 of 2016 INTRODUCTION R3 c11 By a notice of motion, the respondent seeks to have this appeal dismissed on the ground that the record of appeal and heads of arguments, were served on her advocates out of time. c21 In the alternative, the respondent seeks an order that certain portions of the record of appeal be expunged for containing materials that are not necessary for the determination of the appeal. C3l In response, .the appellant has sought leave to apply for the extension of time within which to serve the record of appeal and heads of argument on the respondent. C4l He has also advanced arguments in opposition to the notice of motion. BACKGROUND cs1 On 20 th April 2023, the High Court (Chawatama, J.), delivered judgment in a matrimonial cause in which the appellant and respondent, were parties. R4 c61 The matter had originally been heard by a different judge (Chitabo, J.), but following the demise of that judge, Chawatama, J., heard the matter de nova and concluded it. c11 On the 21 st of July 2023, the appellant filed his record of appeal and heads of argument. ce1 Both documents were only served on the respondent on the 16th August 2023, 25 days later, which was outside the prescribed 14 days. C9l No leave was obtained prior to the service of the documents out of time. c101 In addition, the record of appeal, from pages 268 to 416, contains proceedings of the matter at the time it was before Chitabo, J. ARGUMENTS IN SUPPORT OF THE MOTION c111 In support of the objections to the record of appeal for containing extraneous materials, Order X Rule 9 sub-rule 5 (h) of the Court of Appeal Rules, was referred to and it was submitted that the record of RS appeal must only contain materials that are relevant to the determination of the·appeal. c121 Counsel then refe.rred to the case of Teddy Puta v Ambindwire Friday1 and submitted that since the proceedings of the matter when it was before Chitabo J., cannot be relied on during the hearing of the appeal, their inclusion rendered the record of appeal defective. c131 On the basis of the decisions in NFC Africa Mining PLC. v. Techno Zambia Limited2 and Lilian Chuma Mwanapape v. Patel Chibba Jagdish3 , counsel submitted that the appeal should be dismissed because the defect affects the validity of the appeal. c141 As regard the service of the record of appeal and heads of argument out of time, without the leave of this court, it was submitted that the appellant breached Order X Rule 9 sub-rule 9 of the Court of Appeal Rules. c1s1 Counsel submitted that even though Article 118 (2) (e) of the Constitution provides that justice must be administered without undue regard to technicalities, R6 the decisions in the cases of Access Bank Zambia Limited v. Group Five/ZCON Business Park Joint Venture (Suing as Firm) 4 , and African Banking Corporation Zambia v. Mubende County Lodge Limited5 , make it clear that litigants must comply with procedural rules. C161 In this case, the failure to comply with pr0cedural rules rendered the appeal incompetent, he argued in conclusion. c111 We were urged to dismiss the appeal with costs. ARGUMENTS IN OPPOSITION ue1 The motion has been opposed. c191 As regards the ·· objection to the inclusion of proceedings before Chitabo, J., Order X Rule 9 sub rule 5 (i)of the Court of Appeal Rules was referred to and it was pointed out that the rule allows for the inclusion of document that are necessary for the proper determination of the appeal. c201 Counsel then referred to Rule 58 (4) (i) of the Supreme Court Rules, a provision he argued was similar to Order X Rule 9 sub-rule 5 (i)of the Court of Appeal Rules, R7 and submitted that in the case of Jonathan Van Blerk v. The Attorney General & 5 Others 6 , it was held that, that the rule provides some latitude of what to include in the record of appeal. c211 Counsel proceeded to argue that in any case, they do not seek to rely on the proceedings before Chitabo, J. That being the case, the respondent will not be prejudiced in any way by their inclusion. c221 In addition, counsel submitted that the circumstances in the cases of NFC Africa Mining PLC v. Techno Zambia Limi ted2 and Lilian Chuma Mwanapape v. Patel Chibba Jagdish3 , can be distinguished from what happened in this case. c231 In those cases, the records were defective because materials necessary _for the determination of the appeal was not included, while in this case surplus material has been included. c241 Finally, cases including Barclays Bank Zambia PLC. v. Njovu & Others 7 and Shoprite Holdings Limited and Another v. Mosho and Lewis Nathan Advocates (sued as firm) 8 , were referred to and it was submitted that it RB is not every breach of procedural a rule that should result in the dismissal of an appeal. c2s1 Corning to the serving of. the record, the appellant conceded that the record and heads of argument were served out of time without the leave of the court, and thus their application for the extension of time within which to serve the respondent. c261 It was further subrni tted that even if they had served the respondent outside the time specified by Order X Rule 9 sub-rule 9 of the Court of Appeal Rules, their appeal cannot be dismissed because of that irregularity; the case of Southern Cross Motors v. Steven Maimbika9 was referred to in support of the proposition. c211 Having so stated, they implored this court to exercise its discretion in accordance with Order 13 Rule 3 (3) of the Court of Appeal Rules, and not dismiss the appeal but condemn the appellant to costs, as guided in Stanley Mwambazi v Morrester Farms Limited. 10 R9 CONSIDERATION OF THE MOTION AND DECISION OF THE COURT c2e1 We will first deal with the issue whether the appeal should be dismissed on account of the record of appeal containing materials that are not necessary for its determination. c291 Going by the decision in Teddy Puta v Ambindwire Friday1 , the proceedings of this matter when it was before Chitabo, J., are not relevant to the determination of the appeal. c301 This being the case, the argument that Order X Rule 9 sub-rule 5 (i) of the Court of Appeal Rules, provides the appellant with some latitude ·on what to include in the record of appeal, is untenable. c311 There is no reason why materials that are not relevant to the determination of the appeal, should be included in a record of appeal. c321 While it is our view that the inclusion of the proceedings before Chitabo, J., rendered the record of appeal defective, we are of the view that the nature of the defect is not the kind that would warrant the dismissal of the appeal. ,. RlO C33l This is because the appeal can still be determined with the extraneous materials in the record of appeal, as they are of no pr6bative value. This being the case, the respondent will suffer no prejudice. C34l We therefore decline to dismiss the appeal on account of the record of appeal containing extraneous materials. We will get back to the way out in a moment. c3s1 Corning to the service of the record of appeal and grounds of appeal, Order X Rule 9 (9) of the Court of Appeal Rules, states that the appellant shall, within fourteen days of filing the record of appeal together with heads of argument, serve a copy of each one of them on each party. C36l In our view, the provision is a regulatory rule and accordingly the appellant's breach of it is was not fatal and is thus curable. This is a position we took in the case of Southern Cross Motors v. Steven Maimbika9 , which we still maintain. c311 In arriving at that conclusion in this case, we have additionally considered the length of the delay together with the stage of the proceedings, as guided Rll in the case of Leopold Walford (Z) Limited v. Unifreight11 • c3e1 The record of appeal and heads of arguments were served after 25 days and not within 14 days of their being filed. In our view the delay was not lengthy. C39J In light of that, it therefore follows that the respondent's request to dismiss the appeal on that ground is unsuccessful. VERDICT c401 Having found that the appeal c.annot be dismissed on account of containing extraneous materials, which defect is curable, we direct that all the proceedings before Chitabo, J., be expunged from the record of proceedings. c411 We grant the appellant leave to serve the record of appeal (without portions of the proceedings we have expunged) and heads of arguments bn the respondent, out of time. ,.. R12 C42 J We order that the record of appeal and heads of arguments be served on the respondent within 14 days of this ruling . C43J Finally , the costs of these proceedings will be borne by the appel l ant ; to be taxed in default of agreement . C . . R . Mchenga DEPUTY JUDGE PRESID~ BLICOF ollRTOf-~p 2. f M•~ 2C24 1.. • • 1J,s rq .. . ... F. M. Chishimba COURT OF APPEAL JUDGE --. .. SOOf-.? . L. U~._-,(. , zenga COURT OF APPEAL JUDGE ,, - - .. . . ·"'NJtt ' 2 t MA~ 212~ ll l'\i..l