Raymond West Evans v Loanco Limited (APPEAL NO. 51 OF 2025) [2025] ZMCA 168 (31 October 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 51 OF 2025 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 3 1 OCT 2:_j RAYMOND WEST EVANS APPELLANT AND LOANCO LIMITED RESPONDENT CORAM: Chashi, Ngulube and Banda-Bobo, JJA ON: 16th September and 31st October 2025 For the Appellant: N. Simachela (Mrs), Messrs Nchito & Nchito For the Respondent: N. Nkusuwila-Mbao (Mrs) and R. Samanjomba (Ms), Messrs Nkusuwila Nachalwe Advocates JUDGMENT CHASHI JA, delivered th e Judgment of the Cou rt. Cases referred to: 1. JCN Holdings Limited v Development Bank of Zambia - SCZ Appeal No. 22 of 2013 2 . Oscar Chinyanta & 31 Others v Alasia Construction Limited & Another - SCZ Appeal No. 158 of 2015 3. Mutantika & Another v Chipungu - SCZ Judgment No. 13 of 4. Sakala & Another v Fert Seed and Grain Pty Limited & Another - -SCZ Appeal No. 85 of 2015 -J 2- 5. Joseph Mwaanga v Mutemwa Sililo & 3 Others - 2014/HP/0858 6. Horizon Properties Limited & Another v Jaquar Overseas Limited (2016/HP/ARB/13) Legislation referred to: 1. The High Court (Amendment) Act, No. 7 of 2011 Rules referred to: 1 . The Supreme Court Practice (White Book) 1999 2 . The High Court Act, Chapter 27 of the Laws of Zambia 1.0 INTRODUCTION 1.1 This is an interlocutory appeal against the Ruling of Honourable Mrs Justice Mwaaka Chigali Mikalile, under cause No. 2021/HP/0953, delivered on 9 t h December 2024. 1.2 In the said Ruling, the learned Judge dismissed the matter on account of lack of jursidiction. She further ordered that each party bears own costs, due to the fact that the application had been brought at a late stage (post trial) and further that the matter was hinged on an employment dispute. 2.0 BACKGROUND -J 3 - 2 . 1 The Appellant, who was the plaintiff in the court below, commenced an action against the Respondent on 11th August 2024, by way of writ of summons, claiming amounts for mutual separation, unpaid allowances and accrued leave days . 2.2 The Respondent settled its defence on 3rd September 2021 . The matter then proceeded to trial and thereafter the parties filed their final submissions. 2.3 Before Judgment was delivered, the Respondent on 4 th October 2024, filed a notice of motion to dismiss the matter for want of jurisdiction. 3 .0 THE MOTION 3 . 1 The motion was made pursuant to Order 14A/ 1 of The Rules of The Supreme Court 1 (RSC) and Order 2/4 of The High Court Rules2 (HCR) . Attendant thereto was an affidavit and skeleton arguments. 3.2 According to th e Respondent, the writ of summons was filed during the Michaelmas vacation without leave or direction of the court. That by doing so, the Appellant -J 4- breached the mandatory provisions of Order 2 / 4 HCR, which robbed the court of jurisdiction. 3.3 The application was opposed by the Appellant who contended that the motion did not raise a jurisdictional issue, but rather an issue of irregularity, which could not nullify the proceedings. That in any case, the Respondent had taken fresh steps which barred it from objecting against any procedural irregularities at that stage of the proceedings. 3.4 According to the Appellant, the failure to obtain leave was an irregularity which did not go to jurisdiction. Reliance in that respect was placed on Order 2 / 1 ( 1) RSC, which provides as follows: "Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone, been afailure to comply with the requirements of these ntles, whether in respect of time, place manner, form or content or in any other respect, the failure shall be treated as an -J 5- irregularity and shall not nullify the proceedings, any step taken in the proceedings or any documents, Judgment or Order therein." 3.5 Reliance was also placed on Order 2/2 (1) RSC, which provides that an application to set aside for irregularity should be made within a reasonable time and before a party takes a fresh step, after becoming aware of the irregularity. 4.0 DECISION OF THE COURT BELOW 4. 1 After considering the application, affidavit evidence and the arguments, the learn ed Judge formulated the following issues for determination: (i) Whether or not the court had the requisite jurisdiction to hear and determine a matter commenced during Michaelmas vacation without leave or direction of the court and; (ii) Whether or not a breach of Order 2/4 HCR was curable. 4.2 The learned Judge r eferenced Order 49 /3 (1) HCR, -J 6- which provides as follows : "The vacations to be observed in the several courts and offices of the High Court shall be four in every year, that is to say, the Easter vacation, the Whitsun vacation, the Michaelmas vacation and the Christmas Vacation. The Easter vacation shall commence on Good Friday and terminate on Easter Tuesday; the Whitsun vacation shall commence on the Saturday before Whit Monday and shall terminate on the Tuesday after Whit Sunday. The Michaelmas vacation shall commence on the 8th August and shall terminate on the 6t h September; and the Christmas vacation shall commence on 11 th December and terminate on the 9th January." 4 .3 Refer en ce was als o m a de to Order 2/ 4 HCR, wh ich provides as follows: "Summonses may be issued and pleadings may be amended, delivered or filed during the last -J 7- eleven days of Michaelmas and Christmas vacations respectively, but pleadings shall not be amended, delivered or filed during any other part of such vacations unless by the direction of the court or a Judge." 4 .4 The learned Judge opined that 1 1th August was at the beginning of the Michaelmas vacation and consequently , the Appellant ought to have sought the courts direction before filing the writ of summons. According to the learned Judge, Order 4 / 2 HCR, is couched in mandatory terms and therefore the writ herein ought to have been filed with leave of the court. That without leave, the matter was improperly commenced and the court was robbed of its jurisdiction and any decisions arrived at from an ill conceived matter was a nullity; as was held in the case of JCN Holdings Limited v Development Bank of Zambia .1 5.0 THE APPEAL 5.1 Dissatisfied with the Ruling, the Appellant appealed to this Court advancing the following three (3) grounds: -J 8- (i) The court below erred in law and fact when it found that the commencement of the Appellant's action during the Michaelmas Vacation was not a curable irregularity but a matter of jurisdiction when the rules of the court below clearly provide that non compliance with Rules is to be treated as an irregularity; (ii) The court be low erred in law and fact when it found that the Respondent did not waive its right to object to the commencement of the Appellant's action despite the numerous fresh steps taken by the Respondent and the timing of the application to dismiss the action which clearly demonstrated the Respondent malafides; (iii) Further and in the alternative, the court be low erred in law and fact when it found that the Respondent's affidavit in support of the application under Order 14A of the Rules of the Supreme Court -J 9 - was not defective when the deponent did not have personal knowledge of the matters deposed to and re lied on the advice of Counsel. 6.0 ARGUMENTS IN SUPPORT OF THE APPEAL 6.1 In arguing the first ground, it was submitted that contrary to the findings of the court below, the con sequence of filing the writ of summons without leave of the court during the Michaelmas vacation constituted an irregularity and not a nullity. Reliance in that respect was placed on Order 2 / 1 RSC and the case of Oscar Chinyanta & 31 Others v Alasia Construction Limited & Another2 . 6.2 It was further argued that, having filed numerous pleadings and docu ments, culminating into the trial of the action pending Judgment, the Respondent had not suffered any undue prejudice or injustice as a result of the commencement of this action. 6 .3 In arguin g the second ground, it was submitted that the Respondent's conduct 1n this matter unequivocally demonstrated waiver of any right to challenge -J 10- procedural irregularities. According to the Appellant, the Respondent's actions of entering appearance , filing a defence, attending trial and filing fin al submissions, are steps which are fundamentally incompatible with maintaining an objection to procedural irregularity. 6.4 As regards the third ground, which was argued in the alternative, the Appellant submitted that the Respondent's affidavit was irregular and shou ld have been struck out on account of the deponent not deposing to facts within his own personal knowledge. 7 .0 ARGUMENTS IN OPPOSITION TO THE APPEAL 7.1 In response to the first ground, the Respondent contended th at the Appellant's failure to obtain leave undermined a mandatory provision of the law and therefore committing a fundamental breach of a mandatory provision which cannot be cured. According to the Respondent, Order 2 / 4 HCR, provides for the word "Shall" which denotes that litigants must obey the provision to the latter. Our attention was drawn to the case of Mutantika & Another v Chipungu3 , where the Supreme Court observed that: -J 11- "Both provisions are couched in mandatory manner as each uses the word "shall". The two rules there/ore are not regulatory as they do not give the court discretionary power." 7.2 The Respondent also cited the case of Sakala & Another v Fert Seed and Grain Pty Limited & Another4 , where the Supreme Court held as follows: "The Section used the word "shall" which means that the rule is couched in mandatory term." 7. 3 On the Appellant's reliance on Order 2 / 1 ( 1) and 2 / 2 ( 1) RSC, r eference was made to the High Court (Amendment) Act No. 7 of 2011 and submitted that RSC can only be resorted to, to fill in the gaps in the Zambian laws, where a lacuna exists. According to the Respondent, there are no gaps in our laws, on the commencement of actions during the Michaelmas vacation. 7 .4 In response to the second ground, the case of JCN Holdings Limited v Development Bank of Zambia 1 was referenced, where the Supreme Court observed -J 12- that: "it is settled law that if a matter is not properly before a court, that court has no jurisdiction to make any orders or grant any remedies." 7.5 It was submitted that, regardless of how many fresh steps were taken by the Respondent in the court below, the court lacked jurisdiction to continue with the matter. 7 .6 In respect to the third ground, it was submitted that there was no error when the trial court admitted the affidavit as it was drafted under provisions which permit a party to depose to information believed to be true. That 1n any event, the affidavit in question provided the source of information deposed to by the affiant. Reference thereto was made to Order 5 / 18 HCR. 8.0 RESPONDENT'S CROSS APPEAL 8.1 The Respondent filed into court a notice of cross appeal advancing two grounds as follows : (i) The court be low erred in law and fact, when it failed to award costs in favour of the Respondent by reason that the application was brought at a post trial -J 13- stage, despite observing that the stage at which a jurisdictional issue is raised does not matter. (ii) The court be low erred in law and fact when it treated this matter as an employment dispute and refused to award legal costs on that score. Yet it was purely a debt recovery action that was commenced in the principal registry of the High Court, which for convenience was moved to the Industrial Division upon the court's transfer to the Industrial Relations Division of the High Court. 9 .0 ARGUMENTS IN SUPPORT OF THE CROSS APPEAL 9. 1 In support of the first ground, it was su bmitted th at, it is a well establish ed p rinciple th at costs follow th e even t. It was submitted th at despite m akin g a fin ding th at "w here the court lacks ju risdiction, it ought to down its tools, and the stage at which the issue is raised does not matter," the cou rt declined to award costs. -J 14- 9.2 We were urged to disturb the court's decision based on the case of Joseph Mwaanga v Mutemwa Sililo & 3 Others5 , a High Court case, where it was observed as follows: "It goes without saying that costs are meant to compensate an innocent party for any inconvenience suffered as a result of the defaulting party's actions, while penalizing the latter." 9.3 As regards the second ground, it was submitted that this was a debt recovery action that was commenced under the General Division. That the learned Judge upon being transferred to the Industrial Relations Division, carried the matter in order to conclude the same. That it was therefore an error to treat it as an employment dispute and deny the Respondent costs. 10.0 ARGUMENTS IN OPPOSITION TO THE CROSS APPEAL 10.1 The Appellant did not file heads of argument in response to the cross appeal. They were therefore not allowed to respond at the hearing. 11.0 THE HEARING -J 15- 11.1 At the hearing, Counsel on both sides relied on their respective heads of argument which they augmented with brief oral submissions, which were basically a rehash of their written arguments. 12.0 ANALYSIS AND DECISION ON THE APPEAL 12.1 We have considered the Ruling being impugned and the argumen~s by the parties. We will start by addressing the first ground, which will have a bearing on whether we should subsequently address grounds two and three. 12. 2 The first ground attacks the finding by the learned Judge that the commencement of the action by the Appellant during Michaelmas vacation was not a curable irregularity. According to the Appellant, the irregularity did not go to jurisdiction, as the rules clearly provide that non compliance is an irregularity. 12.3 Order 49/3 (1) HCR, as earlier alluded to, provides for four vacations, amongst them the Michaelmas vacation which is the subject of this appeal. The Michaelmas vacation as provided under this provision commences -J 16- on 8 th August and terminates on 6 th September. The purpose of the vacation is that, the courts operations are reduced and certain activities are restricted, unless by direction of the court or Judge. 12.4 Under Order 49 /3 (1) HCR, no pleadings may be issued, filed amended or delivered during the vacation, except in the final eleven days. Outside the said eleven days, direction or leave of the court or Judge is required. There are of course exceptions, where special legislation provides so or in respect of applications for interim measures of protection, where filing can be made during the vacation without first obtaining leave. 12. 5 We note that the specific provision for leave to file during the vacations 1s mandatory. Therefore, if the summonses or pleadings do not fall under the aforestated exceptions, a direction or leave of the court or a Judge is mandatory. 12.6 We are aware that there have been several contradictory decisions of the High Court as to the implication of Order 49 / 3 ( 1) HCR. We are in view of what we have earlier alluded to persuaded and wish to adopt the -J 17- opinion in the J u dgment of S. K. Newa, Jin the case of Horizon Properties Limited & Another V Jaquar Overseas Limited6 . 12.7 In that case, the Applicant commenced a matter by way of originating summons for an order of interim attachment of funds . Upon the commencement of proceedings, the Respondent raised preliminary issues pursuant to Order 14A RSC, as to whether the matter was properly before the court, when the Applicant had not obtained the mandatory leave of the court to file the summon s during Christmas vacation. Newa. J , 1n dismissing the action at page R43 stated as follows: "Therefore any proceedings commenced w ithout leave of the court, where such leave is required, renders the same liable to be dismissed. Accordingly as no leave was obtained to file the ex parte originating summons during the Christmas vacation, the application for interim attachment of funds is dismissed. " 12 .8 We note that the filing by the Appellant of the writ of su mmons during th e Michaelmas vacation did not fall under any of th e exceptions, as such, without the -J 18- direction or leave of the court or a Judge, it was incompetently before the court. In the view that we have taken, we find no basis on which to fault the learned Judge for dismissing the matter on account of lack of jurisdiction. 12.9 Taking into consideration the view we have taken on the first ground, we find it unnecessary to consider the second and third grounds as they become otiose. In short, the appeal lacks merit and is accordingly dismissed. 13.0 ANALYSIS AND DECISION ON THE CROSS APPEAL 13. 1 We will consider the two grounds together as they both relate to the learned Judge's denial of costs to the Respondent. Indeed costs follow the event and the Respondent having succeeded in its preliminary issue, it ought to have been granted costs. In our view, it matters less as to at what stage the preliminary issue was raised, as to begin with the fault lay with the Appellant who had not obtained the requisite mandatory leave to file the writ of summons. -J 19- 13.2 It also matters less as to whether the matter was employment related, as long as it was not a matter under the Industrial and Labour Relations Division, the Respondent ought to have been awarded costs, in order to penalize the Appellant for incompetently commencing the action. 13.3 This in our view is a proper and fit case for setting aside the costs Order and award costs in the court below to the Respondent. 14.0 CONCLUSION 14. 1 The appe?-1 fails and is accordingly dismissed for lack of merit, whilst the cross appeal succeeds. Costs in this Court and the court bel e to the Respondents. J. CHASHI COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE A. M. BANDA-BOBO COURT OF APPEAL JUDGE