Triple A Transporters Limited and Anor v Qader Zeeshan and Anor (Application 89/2024) [2025] ZMCA 17 (27 February 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) Application 89/2024 BETWEEN: TRIPLE A TRANSPORTERS LIMIT=E~D __ _ MUHAMMED SALA 1 ST APPELLANT 2ND APPELLANT AND QADER ZEESHAN 2 7 FEB 2025 LUSAKA CITY COUNCIL - - - -~ 1 5T RESPONDENT 2ND RESPONDENT CORAM: Kondolo SC, Majula and Muzenga JJA On 20th February 2025 and 27th February 2025 For the Appellants : Mr. B. Lusungo, Messrs Steven Osborne Advocates For the 1st Respondent : Mr. Z. Sam pa, Simeza Sangwa and Associates For the 2nd Respondent : No appearance RULING MUZENGA JA, delivered the Ruling of the Court Cases referred to: 1. Mutantika and Another v Chipungu SCZ Judgment No. 13 of 2014. 2. Mandona Freeboy v Joshua Nkandu Appeal No. 6 of 2017. 3. Chishimba Kambwili and Others v Bridget Atanga CAZ Application No. 17 /2022. -R2- 4. Standard Chartered Bank Zambia Pie v. Wisdom Chanda and 5. Another Appeal No.92 of 2009. Socotec International Inspection Zambia Limited v Finance Bank Appeal No. 149 of 2011. 6. Access Bank (Zambia) Limited v Group Five/Z-Con Business 7. Bank Joint Ventures Appeal No. SCZ/08/52/2014. Saeli Kalaluka v. Zambia National Commercial Bank, Selected Ruling No. 18 of 2017 Legislation referred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 of 2016. 1.0. INTRODUCTION 1. 1. This is a ruling on the first respondent's preliminary objection for an order that the Record of Appeal filed herein be set aside and the appea l be dismissed. The preliminary objection is made pursuant to Order 13 Rule 5(1) of the Court of Appeal Rules, 2016 (CARs) on the ground that: i) The Record of Appeal was not prepared in the prescribed manner as it contravenes Order 10 rule 9(5) (h) and Order 10 rule 9 of the CARs. 2.0. BACKGROUND 2.1. The brief background to this application is that on 19th February 2024, the High Court delivered judgment in favour of the first respondent. Displeased with the judgment, the first and second appellants filed a notice of appeal and memorandum of appeal on 19th March 2024. On 6th -R3 - September 2024, the appellants filed their Record of Appeal and heads of argument which did not contain the respondents' respective bundles of documents filed in the High Court. 3.0. THIS APPLICATION 3.1. This application is supported by an affidavit and skeleton arguments. In the affidavit, the first respondent's avow that the appellants filed their Record of Appeal and heads of argument which was served on them on 17th September 2024. That the said Record of Appeal omitted the plaintiff's bundle of documents dated 12th July 2021, the plaintiff's supplementary bundle of documents dated 2nd June 2022, the first defendant's supplementary bundle of documents dated 2nd March 2022 and the defendant's bundle of documents dated 25th February 2022. 3.2. In their arguments in support of the application, we were referred to Order 10 rule 9(5) of the Court of Appeal Rules, 2016 which provides that: "The record of appeal shall contain the following documents in the order which they are set out:- h) copies of affidavits read and documents put in evidence in the High Court or quasi-judicial body so far as they are material for the purpose of the appeal, and if such documents are not in the English language, copies of certified translations thereof: affidavits, together with copies of documents exhibited thereto, shall be arranged in the order in which they were originally filed; other -R4- documentary evidence shall be arranged in strict order of date, without regard to the order in which the documents were submitted in evidence: ... " 3.3. Relying on the above provision, it was argued that all evidence tendered in the court below ought to be included in the record of appeal failure to which the record of appeal would be incomplete and in contravention of the rules of the Court of Appeal. It was argued that Order 10 rule 9(5) of the CARs was couched in mandatory terms and the parties were required to comply with the same. They relied on the case of Mutantika and Another v Chipungu1 to support this argument. 3.4. The first respondent contended that the omission of the bundles of documents containing evidence relied on in the lower court is a fatal irregularity as far as the record of appeal was concerned, such that an appeal could not properly be determined in the absence of such evidence. The case of Mandona Freeboy v. Joshua Nkandu2 was called in aid to support this assertion. It was submitted that in the Mandona case supra, in deciding to dismiss the appeal the Court observed that there was no application made to rectify the irregularities on the record of appeal. That this was also reflected in Chishimba Kambwili and Others v. Bridget Atanga3 where this Court held as follows: " ... In this matter, the respondents have exhibited disrespect for the rules of court and this cannot be condoned. They were only prompted to apply to amend -RS- the defective record of appeal by the applicant's motion to dismiss the appeal. Under the circumstances, the applicant may be prejudiced should we allow the respondents to withdraw the record and amend it as justice delayed is justice denied. For the foregoing reasons, the appeal is dismissed for incompetence with costs to the applicant which may be taxed in default of agreement." 3.5. It was submitted that it was evident that the court not only frowns upon incomplete or defective records of appeal but also on parties who wait until there's an application to dismiss an appeal before they are moved to rectify a defective record. 3.6. That in light of the fact that there was no application to amend the record of appeal and considering the nature of the documents omitted from the record, it was their contention that this was a proper case for the court to set aside the incomplete and defective record of appeal and dismiss the appeal in its entirety. 3.7. The application was opposed by way of an affidavit whose gist was that the first respondent had not demonstrated the materiality of the respondents' bundles of documents in this matter. That considering the appellants' grounds of appeal in the memorandum of appeal and the heads of argument, the said bundles were not crucial for the determination of the appeal. It was averred that including documents not material to the appeal would make the record of appeal defective and -R6- further that the first respondent had not demonstrated how he has been prejudiced by the leaving out of the said bundles in the record of appeal. 3.8. A list of authorities and skeleton arguments were also filed in further opposition to the application. The essence of their arguments was that Order 10 rule 9 (5) (h) of the CARs is discretionary to the extent that copies of affidavits read and documents put in evidence in the High Court or quasi-judicial body are to be included so far as they are material for the purposes of the appeal. That the discretion relates to the determination of materiality of the documents to be included in or excluded from the record of appeal. 3.9. Referring to the Mandona Freeboy case supra, it was argued that the respondent in that case demonstrated how crucial the bundles of documents were to the appeal in relation to the grounds of appeal before the Supreme Court but that in this case, the first respondent merely stated that the appeal should be dismissed because it did not contain the respondents' bundles of documents. It is argued that the respondents have not demonstrated the relevance of the bundles of documents alleged to have been left out of the record of appeal, and that as such, their application was incompetent. To buttress the foregoing, they placed reliance on the case of Madison General Insurance Limited v Avrill Cornhill & Another4 where Malila J, as he then was stated that: "In any case, the respondents had not demonstrated any prejudice that would be occasioned to them if we allowed -R7- the appeal to be heard in the merits in the absence of the omitted affidavit which was, in any event, now before us. It was for all these reasons that we dismissed the preliminary objection." 3.10. The appellants contended that the respondents' bundles of documents were not material for the determination of the appeal. The appellants went a mile further to demonstrate how the bundles of documents were not material to the appeal under each of the grounds of appeal advanced as they were not referred to in preparing their record of appeal and their heads of argument. 3.11. It was further contended that the case in casuis not proper for dismissal and that this court should determine whether without the documents contained in the respondents' bundle of documents, the appeal can be determ ined . 3.12. The appellants argued that the record was prepared in the prescribed manner and Order 10 rule 17 (2) of the CARs was not applicable to this case. That if the first respondent considers some or all of the documents in the respondents' bundle of documents to be relevant to the appeal, they should have fi led a supplementary record of appeal. 3.13 . All in all, we were urged to dismiss the first respondent's application for being frivolous and vexatious. -R8- 4.0. HEARING 4.1. At the hearing, both counsel relied on their affidavits in support and in opposition, as well as their arguments. Both of them made brief oral augmentations. 5.0. ANALYSIS AND DECISION OF THE COURT 5.1. We have carefully considered the first respondent's preliminary objection, the affidavits for and against, the skeleton arguments relied on by each party as well as the oral submissions by counsel. 5.2. As we see it the issue for determination here is whether or not the appellants' record of appeal is irregular and the appeal liable to be dismissed as an upshot. 5.3. For the avoidance of doubt, Order 10 rule 9(5) of the CARs provides as follows: "The record of appeal shall contain the following documents in the order which they are set out:- h) copies of affidavits read and documents put in evidence in the High Court or quasi-judicial body so far as they are material for the purpose of the appeal, and if such documents are not in the English language, copies of certified translations thereof: affidavits, together with copies of documents exhibited thereto, shall be arranged in the order in which they were originally filed; other documentary evidence shall be arranged in strict order of date, without regard to the order in which the documents were submitted in evidence: ... "(Emphasis ours) -R9- 5.4. Order 10 rule 9(5) of the CARs above mandates the appellant to prepare the record in the manner set out. The first respondent 's contention herein is that the record of appeal was not prepared in the prescribed manner as the plaintiffs' bundle of documents dated 12th July 2021, plaintiffs' supplementary bundle of documents dated 2nd June 2022, the first defendant's bundle of documents dated 25th February 2022 had been omitted from the record, in contravention of Order 10 Rule 9(5). 5.5. It is patently clear, in the premises, that the appellants' record of appeal does not contain the aforementioned documents. We must state on the onset that when a record of appeal does not contain certain documents, that omission alone, does not render the record of appeal irregular and liable to be dismissed. The rules only allows the inclusion of documents that are necessary or relevant to the resolution of the appeal before the Court. 5.6. Learned counsel for the first respondent has simply taken issue with the omission of some documents in the record of appeal, which fact the appellant does not dispute. They have, instead, argued that the documents so omitted are not relevant to the issues that fall to be determ ined by the Court in the appeal. We must state that the onus lies on the first respondent to demonstrate, on the balance of probability, -RlO- that the omitted documents are material to the determination of the pending appeal. 5.7. In casu, the only thing learned counsel for the first respondent has done is simply to state that the omitted documents are relevant to the determination of the appeal, albeit in a very casual way. Neither did the affidavit nor the arguments in support demonstrate the materiality of the omitted documents. Learned counsel for the first respondent has not pointed us to the specific decision of the lower court nor the grounds of appeal nor the appellant's heads of arguments to show how relevant the omitted documents are. 5.8. In the Mandona Freeboy case supra, which learned counsel heavily relied on, it was clearly demonstrated before the Apex court that the omitted documents were relevant to the determination of the appeal, as the appellant in the first ground of appeal even made reference to the omitted documents and the learned trial court anchored its decision on the same. In casu, no attempt to demonstrate the materiality of the documents has been made by learned counsel for the first respondent. We have had sight of the grounds of appeal and the heads of argument filed in the appeal, and we have no hesitation to state that the relevance or materiality of the documents cannot prima facie be seen, as no reference is made to the said documents in arguing the appeal. We therefore find that the first respondent has failed to establish, on the -Rll- balance of probability, that the omitted documents are material or relevant to the determination of the within appeal. 5.9. In any event, even if it were established that the omitted documents were relevant or material, it does not follow that the appeal must be dismissed. The ru les of Court reposes discretion on the Court, whether to dismiss the appeal or not. We must hasten to add at this point that whether the appeal will be dismissed or not depends on the peculiar circumstances of each case as illustrated in Socotec International Inspection Zambia Limited v Finance Bank.5 5.10. Similar sentiments were expressed in the case of Access Bank (Zambia) Limited v Group Five/Z-Con Business Bank Joint Ventures6 the Supreme Court stated thus : - " ... Although at first blush our decisions on when or when not to dismiss an appeal for failure to comply with rules of court appear to be contradictory, they are in truth not. In our estimation, the wording of Rule 68(2) is not a panacea for allowing all procedural shortfalls. It is plain that whether or not an appeal is to be dismissed under that rule is to be taken on a case by case basis. As counsel for the appellant has rightly submitted, this invariably implicates the exercise of judicial discretion." 5.11. In exercising this discretion, the court weighs the peculiar circumstances of the case which we have done in casu. We further find solace in the -R12- Supreme Court decision in the case of Saeli Kalaluka v. Zambia National Commercial Bank7 where the Court stated that: "Omission of any document from the record by the appellant on grounds that the same is not relevant or material for the proper determination of the appeal, should not routinely be used by the respondent as a minefield for the appellant's appeal. This is particularly in view of Order 59 of the Supreme Court Rules which entitles the respondent to prepare and file a supplementary record. This rule, in our view, is designed to, among others things, avert dismissal of appeals on account only of the omission of some documents from the record of appeal which the appellant had considered irrelevant to the determination of the appeal at the time of preparing the record." 5.12. We therefore hold that Order 10 Rule 10 of the CARs, allows the respondent, who holds the view that some relevant documents have been omitted to seek leave to file a supplementary record of appeal. The interest of just will not be served if appeals are automatically dismissed on technicality or defects which are curable. 5.13. In casu, the first respondent has not established the materiality of the omitted documents. 5.14. In the view we have taken in the circumstances of this case, we find no merit in the first respondent's application and it is bound to fail. -R13- 6.0. CONCLUSION 6.1. Having found no merit in the application, we dismiss it. We order that each party bears its own costs. 6.2. We grant leave to the parties herein to file a supplementary record of appeal within 21 days from today, should they hold the view that any documents not in the record may be relevant in the appeal. M. M. KONDOLO, SC COURT OF APPEAL JUDGE r ·········· ~ B~-.'· M·A. J·t!LA ..... . --- ····· COURT OF APPEAL JUDGE K. NGA COURT OF APPEAL JUDGE