Joseph Kapambwe Mulenga (T/A Cornerstone Properties and Infrastructure Development) v Master Butcheries Limited and 2 Ors (Appeal No. 007 of 2024; CAZ/08/554/2023) [2024] ZMCA 354 (31 October 2024)

IN THE COURT OF APPEAL O F ZAMBIA HOLDEN AT LUSAKA Appeal No. 007 of 2024 CAZ/08/554/2023 ( Civil Jurisdiction) BETWEEN: ppellant MASTER BUTCHERIES LIMITED ZAMBIA NATIONAL COMMERCIAL BANK PLC C AND S INVESTMENTS LIMITED 1st R espondent 2rld Respondent y d Respondent CORAM: Makungu, Sichinga and Sharpe-Phiri, JJA on 15 October 2024 and 31 October 2024 For the Appellant: Ms. C. Yalobi and Ms. F . Kafwimbi of MC Mulenga and Company For the 1st Respondent: Absent For the 2nd Respondent: Mr. P. Chomba o fMu lenga Mundashi Legal For the 3 rd Respondent: Mr. M. Nkunika of Sirneza, Sangwa and Associates Practitioners RULING SHARPE-PHIRI, JA, delivered the Ruling of the Court. Legislation referred to: 1. The Rules ofthe Supreme Court ofEngland (1965) 1999 Edition 2. The Court <~/'Appeal Rules, Statutory Instrument No. 65 of 2016 Cases referred to: 1. Bank of Zambia v Tembo and Others Bank o,/Zambia v Jonas Tem bo & Others {SCZ 24 of' 2002) [2002] ZMSC 47 (10 July 2002) 2. Standard Chartered Bank v John Banda, Appeal No. 94 of 201 5 (SC) 3. Access Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture, (SCZ R 52 o.[2014) [2016} ZMSC 24 (2 6 February 2016) RI 1.0 INTRODUCTION 1.1 This appeal anscs from an interlocutory Ruling delivered by Judge Kaunda Newa on 28 July 2023 concen1ing two applications brought before the lower Court. 1.2 The first applicationj filed by the Jrd Respondent on 10 January 2023, sought an order to strike out the statement of claim and to dismiss the action pursuant to Order 18, Rule 19 of the Rules of the Supreme Court of England 1965, (1999 Edition). 1.3 The second application, filed by the 2 nd Respondent on 16 February 2023, sought the determination of points of law and entry of judgment pursuant to Order 14A of the Rules of the Supreme Court of England 1965 (1999 Edition) as read together with all the other applicable provisions of the law. 1.4 The Ruling subject of our determination stems from a preliminary jurisdictional issue which the 2nd Respondent raised during hearing of the appeal. The preliminary issue was premised on the assertion that the record of appeal had been prepared in breach of Order 10 Rule 9(5)(c) and Order 10 Rule 9(7) of the Court of Appeal Rules. 1.5 The Plaintiff in the main action in the lower Court is the Appellant in this appeal, while the l" to 3'" Defendants are the Respondents. For the purposes of this appeal, the parties shall be referred to by their respective designations in these proceedings. R2 2.0 BACKGROUND OF THE DIPUTE IN THE HIGH COURT 2.1 The factual background giving rise to the two applications is as follows: The Appellant, trading under the name Cornerstone Properties and Infrastructure Development commenced proceedings in the High Court on 24 November 2022 by issuing a writ of summons and statement of claim, seeking the following reliefs: i. A declaration that the Plaintiff is a bonafide owner of a total of 69 acres of the land known as Subdivision P of the remaining extent of Farm 411a, Lusaka, for the valuable consideration of K3,170,000.00; ii. A declaration that the Plaintiff holds an equitable interest, ranking in priority to the 3 rd Defendant's charge over the remaining extent of Farm 411 a, Lusaka; iii. An order that the 3rd Defendant's assignment of debt is irregular in so far as it extends to 69 acres of the Plaintiff's interests over Subdivision P of Farm 411a, Lusaka; 1v. An order for quiet possession of 69 acres of Subdivision P of Farm 41 la, Lusaka; v. An order for the l't, 2nd and/or 3rd Defendants' delivery up of the Certificate of Title to the Remaining Extent of Farm 411a, Lusaka, for the Plaintiff's marking off of 69 acres of the Plaintiff's interest and other acts incidental to the registration; vi. Alternative to the aforementioned reliefs and against the l-'1 and 2nd Defendants, an order for the recovery of the sum of K3,170,000.00 being the money paid for the purchase of a total R3 of 69 acres of Farm 411a, Lusaka, in reliance on the said Defendant's warranties and representations; vii. Further to the recovery of the purchase price of K3,170,000.00, as against the 15\ 2nd and 3 rd Defendants, an order for special damages of K780,200.00 or alternatively, special damages to be assessed for the present and prospective incidental costs of subdivision, planning and replanning, maintenance, valuation, numbering and survey; viii. Further to the recovery of the purchase price and incidental costs of purchase, as against the 1 't, 2nd and 3rd Defenndants, an order for special damages of K12,514,425.00 or alternatively, damages to be assessed for the present and prospective loss of profits; ix. Against the 1st Defendant, general damages for breach of the implied term to produce and deliver the Certificate of Title for Remaining Extent of Farm 41 la, Lusaka; x. Against the 2nd Defendant, general damages for breach of its revised undertaking to release the Certificate of Title relating to the Remaining Extent of Farm 41 la, Lusaka; xi. Against the l't, 2nd and 3rd Defendants, punitive damages for the intentional and contumelious disregard of the Plaintiff's ownership interest of 69 acres of the Remaining Extent of Farm 411a, Lusaka; xii. Costs; and xiii. Such further and or other relief as the Court deems fit. R4 2.2 Subsequent to the issuance of the writ of summons and statement of claim, the 2'"1 Respondent entered a memorandum of appearance and filed a defence on 15 December 2022, to which the Appellant filed a reply. 3.0 3RD RESPONDENT'S APPLICATION TO STRIKE OUT STATEMENT OF CLAJM AND DISMISS ACTION 3.1 The 3rd Respondent subsequently filed an application to strike out the statement of claim and dis1niss the action based on the following two grounds: 1. The statement of claim discloses no reasonable cause of action against C and S Investments Limited; and ii. It is scandalous and likely to prejudice, embarrass and delay the fair trial of this action. 3.2 The 3rd Respondenf s application was premised on the argument that the Appellant's claims failed to meet the requisite standard for proper pleadings, as they did not disclose any reasonable cause of action against the 3rd Respondent. Additionally, the 3rd Respondent argued that the statement of claim violated the rules of pleadings by being excessively lengthy and generally defective due to prolixity. Further, it was contended that the statement of claim improperly included evidence rather than limiting itself to material facts. 3.3 Although no affidavit in opposition to the application to strike out the statement of claim appears in the record of appeal, a review of the Appellant's list of authorities and skeleton arguments, found at pages 12 R5 to 26 of volume II of the record of appeal reveals the basis of the Appellant's opposition to the application. 3.4 The Appellant opposed the application on the grounds that the statement of claim sufficiently disclosed facts relating to the allegation that the 3rd Respondent had wrongfully possessed and controlled 69 acres of the Appell.ant's property. The Appellirnt further cont~ncle.rl thM, r.nntr..-1ry tn the provisions of Order 18 Rule 19(2) of the Rules of the Supreme Court of England, the 3rd Respondent's arguments improperly introduced evidence without filing an affidavit before Comi. 3.5 The Appellant additionally argued that the 3rd Respondent's proposed defence itself indicated the existence of a reasonable cause of action. The Appellant further submitted that lengthy pleadings, in and of themselves, do not necessarily cause embarrassment sufficient to warrant being struck out, and maintained that the thirteen causes of action had been distinctly and properly pleaded in the statement of claim. 4.0 iNo RESPONDENT'S APPLICATION FOR DETERMINATION OF QUESTIONS OF LAW AND FOR JUDGMENT 4.1 The 2nd Respondent also filed an application for determination of questions of law and for judgment. Through this application, the 2nd Respondent sought the Com1' s detennination on whether the reliefs claimed by the Appellant in the action commenced before the High Court i) Constituted an abuse of process; R6 ii) Were likely to cause embarrassment on the administration of justice; and: iii) Invited the Court to render a judgment conflicting with the High Court's decision dated 12 April 2021 in cause number 2019/HPC/0025. 4.2 The factual background necessitating the application is outlined in the affidavit in support, located at pages 211 to 157 of Volume l of the record of appeal. 4.3 The affidavit in support, deposed by Museke Chilufya, the Credit Restructuring Senior Specialist in the Corporate Department of the 2 nd Respondent, disclosed that prior to the present action in the lower Court, the 2nd Respondent had initiated a mortgage action against the 1" Respondent and others under case number 2019/HPC/0025. 4.4 The reliefs sought in the said mortgage actions, were inter alia, the payment of Kl,753,703.53 on the overdraft facility as of 20 January 2021, the payment of Kl ,309,056.53 on a medium-ten11 loan facility secured by a legal mortgage over the Remaining Extent of Farm 41 la, Lusaka, an order for the foreclose of the mortgaged property, vacant possession of the mortgaged property, and an order for its sale by the 2 nd Respondent. 4.5 In the affidavit in opposition to the mortgage action, the 1st Respondent disclosed that the Appellant, a third party, had purchased a portion of Farm 411 a, Lusaka from the l s 1 Respondent with the consent of the 2 nd Respondent. The 2m1 Respondent acknowledged this assertion but argued R7 that the transaction had not been finalized as per the agreed tenns as the l ' t Respondent remained indebted to the 2"'1 Respondent and the Appellant had not ma<le payment to the 1 '1 Respondent's account as stipulated in the contract. 4.6 The affidavit in support further stated that the High Court in the mortgage action recognized that while the Appellant's intended purchase, consented to by the 2"" Respondent, had not been concluded as agreed, any subsequent action brought by the Appellant could cause embarrassment to the administration of justice by creating conflicting judgments. The deponent also contended that the Appellant's action constituted an abuse of process, likely to result in a conflicting judgment with the decision rendered on 12 April 2021. 4. 7 The Appellant opposed the application by filing an affidavit m opposition, found at pages 43 to 136, arguing that summary disposal of his action was inappropriate, as the dispute disclosed new, bona fide, and reasonable causes of action requiring the Court's determination. 4.8 The Appellant contended that the earlier action in the High Court was a mo1igage suit against the 1st Defendant, while the present action involved specific perfonnance of a contract for the sale of a portion of the legal estate, which has been prorated by the 1 '1 Respondent and consented to by the 2nd Respondent. 4.9 The Appellant further asserted that the trial Court in the earlier mortgage R8 action only detennined his lack of legal interest in 100 acres of the Remaining Extent of Farm 4 1 1 a, Lusaka, based on his default in paying the initial consideration of Four Million Kwacha (K4,000,000.00). However, the Court did not decide on his default regarding the prorated and revised consideration of Two Million One Hundred and Fifty Thousand Kwacha (K2,150,000.00) and the Nine Hundred and Twenty Thousand Kwacha (K920,000.00), respectively. 4.10 The Appellant further disclosed that the trial Court in the mortgage action neglected to make a determination of his equitable interest in the ascertained extent of 69 acres of Subdivision P of the Remaining Extent of Farm 411a, Lusaka. He added that the Court in that action also failed to make any determination on the 1 '1 Respondent's breach of duty and the 2'"1 Respondent's undertaking to release the subject ce1iificate of title for marking off of his equitable interest of 69 acres. 4.11 The Appellant further deposed that he was not a party to the mortgage action and therefore had no proper representation, arguing that this fact did not warrant the dismissal of the action he commenced in the lower Court. 4 .12 The Appellant contended that the earlier mortgage action did not afford the High Court the opportunity to detennine the present reliefs he was now seeking, including delivery of the Certificate of Title, recovery of K3,l 70,000.00, special damages, general damages for breach of contract and punitive damages. R9 4 .13 The Appellant further asserted that the High Court in the mortgage action did not specifically address his claims against the 3'<1 Respondent 1 including the priority of his interest, his entitlement to quiet possession, and the irregularity in the assignment of debt. 4.14 He emphasized that the decision in the mortgage action was neither final nor conclusive and did not bind him, ilS he was not u party to those proceedings. Consequently, the trial Court in the earlier action lacked jurisdiction to issue a personal judgment against him in his absence. 4 .15 The Appellant also deposed that the issues raised m the present proceedings were well known to the Respondents, as they have been subject of various correspondences exchanged between the parties. 4 .16 He contended that despite the 2 nd Respondent's consent to the sale of the subject parcel of land, the 2"c1 Respondent did not inform him about the foreclosure proceedings but misled him into continuing with the transaction. The Appellant argued that the 2'"1 Respondent's conduct, which he described as malicious, unfair, and negligent, had yet to be adjudicated upon by any Court and was properly before the lower Court for determination. 4.17 The Appellant maintained that he had purchased a portion of Fann 411 a, Lusaka, from the 1 ' t Respondent with the 2"J Respondent' s consent. Although he had not paid the initial K4,000,000.00, he had paid K3, 170,000.00 in accordance with the prorated tenns of the contract. He further argued that his performance or default of the revised consideration ofK3, 170,000.00 has not yet been conclusively deterrninerl hy any Comt. RlO 4.18 The Appellant contended that the judgment in the mortgage action did not address the matters at issue in the present action, as the reliefs sought in the fresh action differ from those in the mortgage case. He further alleged that the 1 s1 and 2nd Respondent had orchestrated the outcome of the earlier proceedings, despite his payment of K3, 170,000.00, which should have partially liquidated the 1 ·,t Respondent's debt as per the contract of sale. 4.19 The Appellant also emphasized that the holding of the lower Court in the mortgage action was limited to his default in payment of the initial contract value of K4,000,000.00 and did not address the revised prorated amount of K3, 170,000.00, which he had deposited into the 1" Respondent's account with the 2'"1 Respondent. 4.20 Finally, the Appellant deposed that his action in the lower Court did not seek to vary the foreclosure order, as his claim pertained to possession of 69 acres of land subject to the prorated contracts of sale, which had not been addressed in the earlier mortgage action. He asserted that there was no risk of a conflicting judgment, as he had not been a party to the prior proceedings, and the earlier action had not considered his interests. Accordingly, he argued that the present action is not an abuse of process, as the parties and reliefs sought in the cunent proceedings were distinct from those in the previous mortgage case. 5.0 DECISION OF THE LOWER COURT R 11 5.1 Upon due consideration, the trial Court addressed the issue of whether the Appellant's action was barred by the doctrine of resjudicata. The Court reviewed a plethora of authorities on the principle, including the Supreme Court decision in Bank of Zambia v Tembo and Others. 1 It noted that several essential elements must be satisfied to establish a defence of res judicata. The Court found that, for such a defence to prevail, it must be demonstrated that the patties or their privies in both actions are identical. Additionally, it is a requisite that subject matter or issue in both proceedings be the same. The Court also addressed the similarity between the reliefs sought in the prior mortgage action and the subsequent action initiated by the Appellant, which fonns the basis of this appeal. 5.2 In its findings, the Court concluded at page R104 of its Ruling, as found at page 123 of the record of appeal, that a cursory examination of the pleadings in both matters revealed that the parties were not identical, as the Appellant and the 3rd Respondent were not parties to the mortgage action, and the guarantors in that action were not involved in the subsequent action commenced by the Appellant. 5.3 However, despite this observation, the Court also concluded on the same page that the 1st Respondent, who was a party in both proceedings, disclosed the existence of an agreement with the Appellant, of which the 2"d Respondent Bank was aware. Therefore, the Court found that the property in issue in the present case had been referenced in the mortgage action, thus satisfying the privity requirement for res judicata. Nonetheless, regarding the similarity of reliefs, the Court noted at page R 106 of its Ruling, as found on page 125 of the record of appeal, that R 12 although the reliefs in both actions pertained to the same property, they could not be considered identical. 5.4 Despite these findings, the Court ultimately concluded that the elements required to establish a defence of res judicata were not fully met. However, it was held that the decision of the High Court in the mortgage action was final, as it was rendered by u Court of competent ,iurisdiction. At page Rl07 of its Ruling, as seen at page 126 of the record of appeal, the Court emphasized that the Appellant's interest in the subject property had already been adjudicated upon in the mortgage action. Therefore, the trial Court in the subsequent action was precluded from re-litigating the same issue under Section 4 of the High Court Act, which provides that all Judges of the High Court have equal power, authority, and jurisdiction. The Court further noted that proceeding with the Appellant's action could result in conflicting decisions from the High Court making a conflicting decision on the same subject matter. 5.5 The Court also observed that the Appellant had the option of invoking available procedures to reopen the matter, join the necessary parties in the m011gage action, and possibly amend the mode of commencement to ensure a comprehensive hearing. 6.0 THE APPEAL 6.1 Being dissatisfied with the Ruling rendered by Kaunda Newa Jon 28 July 2023, the Appellant lodged a notice of appeal and memorandum of appeal on 14 November 2023, advancing the following three grounds of appeal: Rl3 i) That the learned trial Judge in the Court below misdirected herself in law and fact, (because) having held that all the elements of res judicata had not been satisfied, she otherwise went on to hold that she could not proceed with the matter (second action), because doing so would amount to interfering with the finding that another court ("the first action") of equal jurisdiction made in cause number 2021/HPC/0025, that the Plaintiff (""the second action") had no interest in the said property. ii) That the learned trial Judge in the Court below misdirected herself in law and fact when she said that the Court in cause number 2021/HPC/0025 determined the Plaintifrs (Joseph Kapambwe Mulenga) interest in the property. iii) That the learned trial judge in the Court below misdirected herself in law and fact when she held that the Plaintiff (Joseph Kapambwe Mulenga), should re-open (first action) and join any other parties and particularly have the mode of commencement of action amended, so that the first action can be heard with finality. 7.0 HEARING OF THE APPEAL AND RAISING OF THE PRELIMINARY ISSUE 7. 1 The appeal came before us on 15 October 2024, with counsel for both the Appellant and the Respondents present, as indicated above. Prior to the commencement of the hearing, Mr. Chomba, representing the 2nd R14 Respondent, raised a preliminary objection, submitting that the record of appeal was in violation of Order 10 Rule 9(5)(c) and Order 10 Rule 9(7) of the Court of Appeal Rules. Specifically, he argued that Volume 1 of the record, which included the notice of appeal, lacked the order granting leave to appeal, and that the three volumes of the record of appeal were erroneously indexed. 7 .2 Mr. Chomba further argued that the record of appeal was not prepared in compliance with the standard practice for compiling records before this Court, specifically regarding the requirement for proper paragraphing. He cited several pages within the record that lacked appropriate paragraphing as illustrative examples. 7.3 Ms. Yalobi, representing the Appellant, responded by asserting that the 2nd Respondent's preliminary objection was in contravention of Order 13 Rule 3(1) of the Court of Appeal Rules, which mandates that a preliminary objection must be filed by way of notice within 14 days of receiving the record of appeal. Ms. Yalobi urged the Court to dismiss the 2nd Respondent's preliminary objection on grounds of procedural impropriety. Alternatively, she requested an adjournment to allow the 2'"1 Respondent to correctly file the application before the Court, in order to enable the Appellant to respond appropriately. 7.4 Mr. Chomba, in reply, contended that the preliminary issue concerning the form of the record of appeal is a jurisdictional matter which may be raised at any time. He asserted that non-compliance with the Court's Rules in prepanng the record of appeal directly affects the Court's jurisdiction to consider such a record. Rl5 7.5 Mr. Chomba further argued that the Appellant's request for an adjoummenl lo permit the 2"d Respondent to properly file the application was unfounded. He maintained that the 2nd Respondent had duly raised all relevant concen1s, and it was incumbent upon the Appellant to address the issues raised accordingly. 7.6 In its Ruling, the Court held that the preliminary objection raised by the 2nd Respondent was properly before it, reasoning that the jurisdictional nature of the issue permitted it to be raised at any stage of the proceedings. The Court accordingly granted the Appellant leave to respond to the preliminary issue. 7.7 In her substantive response to the 2m1 Respondent's preliminary objection, Ms. Kafwimbi, representing the Appellant, acknowledged the concerns raised by the 2 nd Respondent. Upon review of the record of appeal, it was apparent that irregularities existed with the indexing and the placement of the order granting leave to appeal. However, counsel argued that these irregularities were not fatal, as the Court possessed inherent jurisdiction to pennit the Appellant to amend the record to bring it into compliance with the Rules of Court. 7.8 Ms. Kafwimbi further referenced Article 118(2) of the Constitution of Zambia, which mandates the Courts to administer substantive justice without undue emphasis on procedural technicalities. 7.9 In response to the Appellant's submission and request to amend the record of appeal, Mr. Chomba, on behalf of the 2nd Respondent, argued R16 that the Appellant had clearly acknowledged the record of appeal's non compliance with the Rules of Court. He contended that, while the preliminary objection raised was indeed a jurisdictional matter, the Appellant's application to amend the record of appeal was not a jurisdictional issue and, therefore, could only be properly raised in compliance with the Rules of Court. 7 .10 Counsel submitted that the n::conl of appeal had been filed over 10 months prior, affording the Appellant ample time to properly seek an amendment to the record, which they were now attempting to effect in open court. He contended that the Appellants had "slept on their rights." Counsel further noted that, at the commencement of the hearing, the Appellants were prepared to argue the appeal on its merits, as if the record were properly before the Court. He questioned why the Appellants had now shifted their position, attempting to amend the record without fonnally applying by summons, as required under Order 7 of the Court of Appeal Rules. 7.11 In his concluding remarks, Mr. Chomba cited Standard Chartered Bank v John Banda,2 wherein the Supreme Court held that a party who delays in asserting their rights until an application is made to set aside or dismiss the action does so at their own peril. He argued that the Appellants in this matter had similarly chosen to "sleep on their rights." 7.12 Ms. Kafwimbi then respectfully requested that the Court permit the Appellant to amend the record pursuant to the provisions of Order 9 Rule 13 of the Court of Appeal Rules. Rl7 7.13 The Court subsequently adjourned the hearing to a date to be advised, to allow for a ruling on the issues raised. 8.0 RULING ON APPLICATION TO DISMISS APPEAL AN D ON APPLICATION TO AMEND THE RECORD OF APPEAL 8.1 In rendering our Ruling on the 2nd Respondent's application to dismiss the appeal and the Appellant's application to amend the record of appeal, Wl: propose to first address the 2 11 d Respondent's application before considering the Appellant's request to amend the record. 8.2 Our approach is grounded in the fact that the 2'"1 Respondent's application was brought earlier than the Appellant's application. Furthermore, as highlighted by Mr. Chomba, the Appellant's request for amendment arose directly in response to the 2 nd Respondent's application, given that the Appellant was initially prepared to argue the merits of the appeal. Accordingly, we conclude that the Appellant delayed in asserting its rights until the eleventh hour. 8.3 The 2 nd Respondent's preliminary objection is that the record of appeal is defective, having been prepared contrary to the provisions of Order 10 Rule 9(5)(c), Order 10 Rule 9(7), and Order III Rule 11(6) of the Court of Appeal Rules. 8.4 For ease of reference, Order 10 Rule 9(5)(c) provides that: 'the record of appeal shall contain the following documents in the order in which they are set out: (C) the notice of appeal together with a copy of the order granting leave to appeal where appropriate,·' Order 10 Rule 9(7) further rH8 provides that: 'where the record of appeal comprises more than one volwne, the index shall appear in the.first volume only. ' 8.5 The 2nd Respondent further contended that the record of appeal was improperly paragraphed, citing non-compliance with Order III Rule 11(6) of the Rules. However, we shall refrain from considering this aspect of the preliminary objection, as the cited provision mandates paragraphing only for electronically filed records of appeal, which does not apply in the current case, filed conventionally. 8.6 Upon considering the breach of Order 10 Rule 9(5)(c) and Order 10 Rule 9(7) of the Rules as outlined, we note that the Appellant conceded that the record of appeal was not prepared in accordance with these provisions. Our remaining task, therefore, is to determine the appeal's outcome, given the defective nature of the filed record. In Access Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture\ the Supreme Court dismissed a motion seeking to set aside its earlier ruling that dismissed an appeal due to a defective and non compliant record of appeal. 8.7 In that decision, the Supreme Court acknowledged its inherent discretion to either dismiss an appeal with a defective record or permit amendment to correct the defect, the exercise of such discretion depends on the specific circumstances of each case. In the present case, we do not find it appropriate to exercise this discretion to allow an amendment. The Appellant delayed for over 10 months without addressing the issue and were prepared to proceed as though the record were in order until the 2nd Respondent highlighted the irregularity. Rl9 8.8 Procedural rules exist to ensure consistency, predictability, and the integrity of justice; a party that neglects thes~ rules and fails to rectify procedural breaches in a timely manner does not merit the Court's leniency. Non-compliance with procedural rules undermines justice by potentially fostering perceptions of inconsistency m judicial administration among the public. 8.9 For these reasons, we uphold the preliminary objection raised by the 2 nd Respondent and hereby dismiss the appeal. 9.0 CONCLUSION 9.1 In light of the dismissal of the appeal for the reasons stated herein, the costs of these proceedings shall be bon1e by the Appellant, to be taxed in the absence of an agreement. ~ Xfu C. K. Maku~ COURT OF APPEAL JUDGE ... cou DGE COURT OF APPEAL JUDGE R20