Standard Chartered Bank Zambia PLC v Chanda & Another (Appeal 92 of 2009) [2014] ZMSC 123 (4 May 2014)

(451) SCZ Judgment No. 18 of IN THE SUPREME COURT OF ZAMBIA Appeal No. 92/2009 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: STANDARD CHARTERED BANK ZAMBIA PLC AND WISDOM CHANDA CHRISTOPHER CHANDA APPELLANT 1 ST RESPONDENT 2 ND RESPONDENT Coram: Mumba, Ag. DCJ, Chibomba and Phiri, JJS On 24th April, 2013 and 5th May, 2014. For the Appellant: Mr. K. M. G. Chisanga Of Advocates Messrs KMG Chisanga For the Respondents: Mr. Emmanuel Mwansa, SC. Of EBM Chambers JUDGMENT Phiri, JS, delivered the Judgment of the Court Cases referred to: 1. University of Zambia Council vs. Jean Margaret Calder (1998) ZR 48. J1 (452) 2. Ruth Kumbi vs. Robinson Kaleb Zulu SCZ Judgment No. 19 of 2009. 3. George Sikazwe & Ephania Taruvinga vs Rachael Makwabarara Mulusew Tabeje and Abeve Company Ltd. – SCZ/8/228/2002. The delay in rendering this Ruling is deeply regretted. When we heard this case, the Hon. Madam Justice F. M. Mumba, Acting Deputy Chief Justice was on the panel. She has since retired. This is therefore a majority decision. There are two Motions filed under this Cause. The first in time is a Motion to dismiss the appeal for want of prosecution. This Motion was filed on behalf of the Respondents on the 26th of April, 2013, pursuant to Rule 48 of the Supreme Court Rules, Chapter 25 of the Laws of Zambia; and Order 25/L/1 of the Rules of the Supreme Court (1999 edition). This Motion is supported by an affidavit sworn to by Emmanuel Bupe Mwansa. J2 The second Motion was filed on behalf of the Appellant, to restore the appeal to the active Cause List. This Motion was filed on the 5th (453) of July, 2013, pursuant to Rule 48 of the Supreme Court Rules Chapter 25 of the Laws of Zambia. This Motion is also supported by an affidavit sworn to by Kangwa Musole George Chisanga. We heard both Motions together as they are related and we now render a single Ruling. Briefly, the case for the Respondents, as deposed in the affidavit in support of the Motion to dismiss, is that, on 24 th April, 2012, this Court adjourned the appeal sine die with liberty to restore, and with costs to the Respondents; to be paid before the appeal was to be restored by the Appellant. What caused that adjournment was the Appellant’s failure to file its Heads of Argument. The parties subsequently agreed on costs, and by letter from the Appellant’s advocates dated 11th October, 2012, the Appellant paid the agreed costs by cheque. By letter dated J3 2nd November, 2012, to the Appellant’s advocates, the Respondents’ Counsel acknowledged receipt of the agreed costs. By letter dated 11th December, 2012 from the Appellant’s advocates, the Appellant indicated that since the costs were paid, they would proceed to restore the appeal and (454) by letter from the Respondents’ advocates dated 14 th December, 2012, the Respondents informed the Appellant that the application to restore the appeal shall not be opposed since the Appellant paid the costs. However, the Appellant did not restore the appeal. All the letters mentioned are exhibited to the said affidavit of Emmanuel Bupe Mwansa; these are marked “EBM1”, “EBM2”, “EBM3” and “EBM4”. There is an affidavit in opposition to the Motion to dismiss the appeal. For reasons that will become apparent in this Ruling, we find it unnecessary to recite the averments of the affidavit in opposition. Suffice to state that the Appellant’s argument is that this Court has given guidance to the effect that it is always in the interest of justice to have matters determined upon their merits, J4 unless it will be highly unjust to do so to one of the parties to the proceedings (see Stanley Mwambazi vs. Morester Farms Limited (1977) ZR 108, and Water Wells Limited vs. Wilson Samuel Jackson (1984) ZR 98). (455) On the other hand, the affidavit of Kangwa Musole George Chisanga in support of the Motion to restore the appeal to the active list mentions, inter alia, that when this matter returned for hearing of the appeal on 24th April, 2012, the Appellant was not ready to proceed as it had not filed its heads of Argument, and on this account, this Court ordered that the appeal be adjourned sine die with liberty to restore conditional upon the Appellant paying the costs of the Respondents so far, in the Supreme Court, and filing its Heads of Argument; that from the date of such adjournment the Appellant and the Respondents’ had engaged in various correspondence and proceedings in a bid to agree and later tax costs until the month of November, 2012 when the J5 parties settled for agreed costs, and a payment, pursuant thereto, was made; that the Appellant filed into Court its Heads of Argument as of 31st May, 2013; therefore, the Appellant demonstrated its intention to proceed with the prosecution and finalization of the appeal; and that in the premises the interests of justice will be served if the matter is restored to the active Cause List, and neither of the parties to this (456) appeal will be prejudiced in any way by the order for such restoration. The Appellant’s argument in support of restoration is that it has attended to both conditions set by this Court for having this matter restored to the active list; the parties have agreed the costs due and settlement thereof has been made, and the Appellant has now filed its Heads of Argument which are currently before this Court. J6 Having considered both Motions, it is clear to us that the fate of the Appellant’s Motion to restore, lies in the result of the Motion to dismiss the appeal for want of prosecution. It is clear from the averments in the affidavits exchanged, that the Appellant’s appeal was placed on an “unless” order the moment it was adjourned sine die with liberty to restore upon payment of costs before the appeal was to be restored. That order was necessitated by the Appellant’s default in filing its Heads of Argument. Our position on the effect of ‘unless’ orders has long been settled. See University of Zambia Council vs. Jean Margaret Calder(1); and more recently, the case (457) of Ruth Kumbi vs. Robinson Kaleb Zulu(2) where we stated the following: “We have seriously considered the Motion as this Motion seeks to challenge a proposition at law which has time and again been pronounced by this Court as per plethora of authorities…. The Courts in Zambia have time and again pronounced that failure to comply with an ‘unless’ order within the stipulated time would result in the appeal being dismissed”. J7 In the present case, although the Appellant eventually paid the costs as ordered, it failed to apply for restoration of the appeal to the active cause list and only sought to do so more than 60 days after the Respondent filed the Motion to dismiss the appeal for want of prosecution. It is our considered view that the Appellant failed to fully comply with the ‘unless’ order. Partial compliance with a court order also amounts to failure to comply with that order. The partial compliance with the Court order in this case could not have, of its own, made the appeal regular without formal restoration. Under Order 2 Rule 1 sub-rule 5 of the Rules of the Supreme Court (White Book – 1999 edition), an irregular step remains irregular until an application is successfully made to the court to correct it. (458) In the present case, the application to dismiss the appeal was filed long before the Appellant sought to restore the appeal. This is where the defect now lies, because, notwithstanding that there J8 was no time frame given, we cannot choose to ignore the Respondents application to dismiss the appeal. We have stated in a plethora of cases that, any reason, no matter how well articulated, cannot of its own, cure a defect. The party concerned must take out an appropriate application seeking to cure a defect; and that the Court has no mandate to choose to ignore the effect and, of its own Motion, proceed as if the defect never existed (see George Sikazwe & Ephania Taruvinga –vs- Rachael Makwabarara Mulusew Tabeje and Abeve Company Ltd(3)). The Appellant clearly failed to comply with the ‘unless’ order before the application to dismiss was made by the Respondents. Therefore the Motion to dismiss the appeal has merit, and we allow it with costs, to be taxed in disagreement. It follows that the Appellant’s (459) Motion to restore has come to us too late. It has no merit, and we dismiss it with costs. J9 (RETIRED) F. N. M. MUMBA A/G DEPUTY CHIEF JUSTICE H. CHIBOMBA SUPREME COURT JUDGE G. S. PHIRI SUPREME COURT JUDGE J10