Phigen v Mungandi and Ors (CAZ/08/300/2020) [2020] ZMCA 142 (8 December 2020)

Rl IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA CAZ/08/300/2020 (Civil Jurisdiction) B E T W E E N: MWEENE PHIGEN 0 8 DEC 2020 ::f' PLICANT AND CLERK OF COL 'RT � O. Box 50067, LU� MWENYI MUNGANDI 1 ST RESPONDENT CHINGOLA MUNICIPAL COUNCIL 2ND RESPONDENT THE ATTORNEY-GENERAL 3RD RESPONDENT Before Honourable Judge B. M. Majula this Sth day of December, 2020 Applicant For the • • For the ]st Respondent • • No appearance Mr. M. Mweene of GM Legal Practitioners RULING Cases referred to: 1. African Banking Corporation vs Mubende Country Lodge SCZ Appeal No.116/2016 2. NFC Africa Mining PLC vs Techpro (Z) Ltd (2009) ZR 236 3. Twampane Mini,ig vs E & M Storti Mining (2011) ZR 67 4. Kashikoto Conservancy Lirnited vs Darrel Alexander Watt Appeal 146/ Other authorities referred to R2 1. Court of Appeal Rules SI 65 of2016 2. The Supreme Court Practice (White Book} 1999 edition This matter ca tu(: to me as a renewed application by the applicant, Mr. Mweene Phigen Mwiinga, seeking for an order of injunction against the respondents. Before the injunction application could be heard, the advocates for the 1st respondent raised a preliminary issue on the ground that the appeal is incompetently before me and should therefore be declared null and void. According to the notice of the preliminary issue which was made pursuant to Order VII Rule 1 and 2 of the Court of Appeal as read with Order 33 Rule 3 of the Rules of the Supreme Court 1999 edition. It was also supported by affidavit sworn by Mwenyi Mungandi wherein he deposed that the affidavit in support of the ex-parte summons for an order of injunction filed by the applicant does not depict the application that was before the High Court. It was stated that it has in fact introduced new aspects particularly in clauses 17, 20 and 27. It was contended that this offends the Rules of the Court and that it is an attempt to introduce new evidence and to re­ litigate the matter that was determined by the Court below. R3 The applicant opposed the application. In an affidavit swor11 in opposition the applicant averred that the Notice to raise preliminary issues filed by the l •1 respondent is irregular and defective. He deposed that the introduction of new aspects in clauses 17, 20 and 27 do not offend the rules of this court as it is a renewal 1st respondent application and not an appeal. It was contended that the is therefore at liberty of lhe to oppose the contents new aspects. He concluded by stating issues that the preliminary raised are misconceived and are merely intended to delay the hearing of the injunction application. The matter came up for hearing on 1 •1 December, 2020 but there was no appearance on behalf of the 1•1 respondent. Mr. Mweene who appeared for the applicant intimated that he would be relying on the affidavit in submissions. He submitted opposition make oral by the 1st that the application and also respondent is improperly before court as it was made pursuant to Order 7 rule 1 and 2 of the Court of Appeal Rules as read with Order 33 rule 3 of the White Book. He pointed out that the 1st respondent did not cite Order 14A of the White Book, making the whole application irregular as it is trite law that Order 33 rule 3 cannot be cited in isolation. As authority for his proposition counsel referred the court to the case of African Banking Corporation vs Mubende Country Lodgei. I-le went on to argue that the 1 "1 respondent's application before court should not be entertainccl as it was alien and as such R4 should be set aside for i1-regularitj1. the ,case of NFC Africa Mining PLC vs Techpro (Z) Ltd2 \\7hich He dre\x.1 the court1s attention to articulates t.he principl ,e that rules of court are intended to assist i11 the proper and 01-der1 must be strictly follo\\ 1, administration 1ed. of justice and as such they The case of Twampane Mining vs E & M Storti Mining3 ,1..1as also relied upon v.rhich states that to choose to ignore the rules of Court is to do so at one's own peril. Mr. M\veene further took issue \vith the fact that the Notice for the preliminary issue referred to an appeal as opposed to a rene"\/\ 1al. In the alternative, Mr. M\veene argued that there is a difference between an appeal and a rene,val as defined in the Black's La\v Dictionary. He observed that an appeal entails looki11g at faults of the decision 1es a of the lower court v.1hile a rene\\ral invol\ fresh application that is to be considered on its merits \\1ithout regard to the previous decision. It was Mr. M,veene's further submission that the rules relating to introducing in a11 ne,,, aspects appeal do not apply to a renewed application. I was accordingly urged to dismiss the preliminary isst1es \\rith costs. I have carefully considered the applic,1tion before me, tl1e arguments advanced as well as tl1e at1thorities cited. The preliminary issues have been raised pu1·suant . t.o the provisio11s of Order VII Rule 1 a11d 2 of the Cot1rt of Appeal Rules as read R5 together with the p1·ovision of Order 33 / 3 of the Rules of the Supreme Court 1965 White Book 1999 edition (RSC). The appellant has taken issue with the provision that has been used and has contended that the provision ought to have been made with Order 14A RSC. is not a stand alone provision and Order 33 Rule 3 of the RSC states as follow: ''The court may order any question or issue arising in any cause or matter whether of fact or law or partly of fact or partly of laiu, and whet/1.er raised by the pleadings or otherwise to be tried before, at or after the trial of the cause or matter, and may give direction as to the manner in which the question or issue is to be tried''. Order 14A, deals with determination of question of law or construction. It provides as follows: ''(1) The Court may upon the application of a pa1-ty or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that - (a) such question is suitable for deter rnination without a full trial of the action, and (b} sucl1 deter·rnination will finally deterrnine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein. R6 There are certain requirements that need to be met before one can use the provision clearly under Order 14A. These have been stipulated in Order 14A/2/3 which provides as follows: ''The requirements for employing the procedure under this Order are the following: (a) the defendant must have given notice of intention to defend, {b) the question of law or construction for is suitable deterrnination without a.full trial of the action (para. 1 {i)(a)); (c) such determination will be final as to the entire cause or matter or any claim or issue therein (para. 1 (i)(h)); and (d) the parties had an opportunity of being heard on the question of law or have consented to an order or judgment being made on such dete,·rnination (para. 1 (3)). 11 In the case of African Banking Corporation vs Mubende Country Lodge1 it was held that: ''The import of Order 33 rule 3 of the White Book is that a preliminary point of law can be raised at any time including before trial. Parties need not wait for setting dotun for trial before an application to determine a prelimir1ary point of latu can be raised. Order 33 rule 3 however cannot be invoked independently to the exclusion of Order 14A of the White Book. In the case of Kashikoto Conservancy Limited vs Darrel on behalf of Alexander Watt4 Chashi JA, in delivering this Court stated that: ju<lgrnent R7 ''Order 33/ 3 should be read together 18/ 11 RSC. Under this rule, the court preliminary envisages a matter of fact in the deter·,riination matter." a trial or inquiry into the of law at the outset. question issue so as to establish it as of the whole cause or with Order 14A and Order has power to try a Order 33/ 3, therefore, Having looked at the provision respondent which is Order 33/3, I totally appellant that this provision that has been cited by the 1st agree with counsel does not come to the aid of the 1st e respondent in raising the preliminary for the issue. The appropriat provision should have been under Order 14A RSC. But that notwithstanding I will exercise my discretion and proceed as if they raised it properly under Order 14A of RSC. The second bone of contention that has been raised by the appellant is that the issue before court is a renewal as opposed to an appeal. I could not agree more with this position. There is a distinction to be made between a renewal and an appeal. In a renewal, the matter is being heard afresh. We are not cancer 11ed with what transpired in the court below. In the sa,11e view, the parties cannot refer to what was, or transpired in the court below. Therefore, it behooves me to state that whatever new aspects the 1st respondent has a grievance with in the matter before this Court, they cannot at this stage be dismissed. This is so because the application is a renewed one and therefore any new material does not offend the Rules of Court. RB If it were an appeal on the other hand, the applicable rules would apply. In an appeal no new aspects ed. can be introduc In light of the foregoing, I find the preliminary issue raised to be devoid of merit and dismiss it. I will accordingly proceed to hear the application for an injunction Costs in the cause. Dated at Lusaka this 8th day of December, 2020 . ,:.,.•.. . ....... . . . . . . . . . . . . Court of Appeal Judge ...... B .. Majula