Malama Mulenga v Reuben Thole and Anor (CAZ/08/414/2021) [2024] ZMCA 239 (23 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN ATNDOLA ( Civil Jurisdiction) CAZ/08/414/2021 Appeal No. 29 of 2022 Application No. 08 of 2024 BETWEEN: MALAMA MULEN ( AND I REUBEN THOLE ANDREW THOLE 1. j 1- tlj 2024 Appellant 1st Respondent 2nd Respondent CORAM: Makungu, Sichinga and Sharpe-Phiri, JJA on 21 and 23 February 2024 For the Appellant: Mrs. N. Chila Matowe of Muya and Company For the Respondent: Ms. C. Shamakamba of Shamakamba & Associates RULING SHARPE-PHIRI, JA, delivered the ruling of the Court Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No . 65 of 2016 Cases referred to: 1. Zambia Revenue Authority v Jayesh Shah, Judgment No. 10 of 2001, SC 2. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 3. Rachel Lungu Saka v Hilda Ewa/ya Chomba and Attorney General, Appeal No. CAZ/08/059/2017, CA This is a ruling on an application brought by the appellant to restore the appeal for hearing. The application was brought by way of summons supported by an affidavit filed in Court on 23 January 2024. The application was made pursuant to Order X Rule 19(2) of the Court of Appeal Rules. R] . ; The affidavit in support of the application was sworn by Zachariah Muya, an Advocate in the employ ofMuya and Company, representing the appellant. In connection with the circumstances around his non-attendance at Couii on the day of the hearing, Mr. Muya stated that he had travelled to Lusaka on 15 January 2024, to attend Court of Appeal hearings for the present appeal and another appeal scheduled for 16 January 2024. That on 16 January 2024, he attended Court and was informed by the Court of Appeal registry staff that all Court of Appeal hearings for that week had been rescheduled to 22 January 2024. He recalled sitting with State Counsel Bonaventure Mutale and Sakwiba [Sikota] in Court, where he spoke to the Master of the Comi of Appeal and other officers as they were preparing for the Court session to commence. During this interaction, he was instructed to return on 22 January 2024. He mentioned that he left the Court upon receiving this information. Subsequently, he was informed, that despite believing that the hearing for the present matter was rescheduled to 22 January 2024, it had proceeded as scheduled and was dismissed due to his absence. He stated that his absence was due to misinformation he received at the Court of Appeal registry that all Court of Appeal hearings for that week had been rescheduled. Counsel concluded his deposition by stating that granting the application to restore was in the interest of justice, as the appellant was eager to prosecute the appeal, and that the respondent would not be prejudiced in any way if the appeal was granted. In the list of authorities and arguments , Counsel relied on the case of Zambia Revenue Authority v Jayesh Shah I where the Cami said that 'cases should be decided on their substance and merit and where there has been only a very technical omission or oversight not affecting the validity of process.' R2 Counsel also refen-ed to the case of Wilson Masauso Zulu v Avondale Housing Project Limited, where it was held that 'the trial court has a duty to adjudicate upon every aspect of the suit bet,,veen the parties so that every matter in controversy is determined in finality.' The respondent did not file an affidavit in opposition to the application. The application was heard on 21 February 2024. Both parties were represented by their respective counsel, as previously mentioned. The appellant' s counsel relied on the affidavit, the list of authorities, and the arguments submitted on 23 January 2024. The respondent's counsel did not contest the application but left the decision to the Court. We have carefully reviewed the evidence on record and the arguments presented by counsel for the appellant. From the record, we discern that the cause list for the Appeal sessions before us was issued on 19 December 2023 , circulated, and received by the appellant's advocates on 22 December 2023. The list included two matters involving the appellant's Advocate: Appeal 40/2023 scheduled for hearing on 16 January 2024, and the present matter, Appeal 29/2022, scheduled for hearing on 17 January 2024 . These appeals were slated to be heard by two different panels of the Court. When the appeal before us came up for hearing, the appellant's counsel was absent, and no explanation had been advanced to the Court for his non-attendance. Based on the Rules of this Court, particularly Order X Rule 19(l)(a), which stipulates that the appeal may be dismissed if the appellant or their representative fail to appear on the appointed date, the court dismissed the appeal as the appellant' s counsel was absent. R3 In the application before us, the appellant seeks an order to reinstate the appeal for a hearing, citing the authority of Order X Rule 19(2) of the Court of Appeal Rules, which states: '(2) Where an appeal is dismissed, allowed, or struck out under sub rule (/), a party who was absent may apply to the Court, within seven days of the dismissal, allowing or striking out of the appeal, for the rehearing or hearing of the appeal, as the case may be, and, where it is proved that there was sufficient reasons for the absence of that party, the Court may order that the appeal be restored for hearing, upon such terms as to costs or otherwise as it considers just.' The guidance provided in the aforementioned provision indicates that the primary consideration for reinstating an appeal for a hearing is whether the Court is convinced that a valid reason for the appellant's absence on the appeal hearing date of 17 January 2024, has been presented . Failure to provide such a reason will result in the dismissal of the application for restoration. In evaluating the application, we have examined the evidence on record and the arguments put forth by the appellant' s counsel to determine if satisfactory reasons were provided for his absence from Court. It is recognized that Counsel for the appellant traveled from Ndola to Lusaka and back to Ndola between the 15 and 17 January 2024, as evidenced by the air tickets marked as ZMl and ZM2 in his affidavit supporting the application and that he was in court on the day prior to the appointed date of hearing for this appeal. R4 Counsel for the appellant contends that on 16 January 2024, the Registry Staff of the Court notified him that all the appeal sessions for the week had been cancelled. But he also mentions that he was present in court while the Master of the Court and the other Staff were preparing the court for the sessions to commence. The subsequent statement of the appellant' s counsel, indicating that the court was being prepared for sessions, contradicts his earlier assertion that he was informed that the appeal sessions for the week had been cancelled. The appellant' s counsel ' s testimony is at odds with the documentary evidence on record, which indicates that the Master had formally notified counsel for the appellant, in writing, on 9 January 2024, that Appeal No. 40 of 2023 had been rescheduled to 22 January 2024. This communication only pertained to Appeal No. 40 of2023 scheduled for that day and did not mention Appeal No. 29 of2022 or any other matters set for hearing on 17 January 2024 . There was no communication to the appellant's counsel regarding any change in the cause list for Appeal No . 29 of 2022, which, is the appeal before us. The record further indicates that on 1 7 January 2024, the scheduled day for the hearing of Appeal No. 29 of 2022, the appellant's counsel was contacted by the Clerk of the Court shortly before 09:00 hours to confirm his presence for the appeal. Despite the appeal only being called for hearing sometime after 11 :00 hours on that date, neither the appellant nor his Advocate were present. Counsel, having been contacted again that morning, had the opportunity to engage an agent to attend on his behalf or to send a notice of non-attendance to the Court. However, he chose not to take any action, despite being aware that he had a matter scheduled for hearing before the Court that morning. RS Based on the reasons above, we find no reasonable excuse justifying counsel's absence on the specified day. The Rules permit the Court to restore an appeal only when satisfied that there are adequate reasons for a party's absence. In the view we take, there is no basis to grant the application and we dismiss it accordingly. Since this application, was not contested, we order that each party bears its own costs. C. K. Makung~ COURT OF APPEAL JUDGE COUR ~ arpe-PhirF COURT OF APPEAL JUDGE R6