IN THE COURT OF APPEAL FOR ZAMBIA CAZ/08/470/2021
AT THE LUSAKA DISTRICT REGISTRY
HOLDEN AT LUSAKA
(Civil Jurisdiction)
BETWEEN:
JOSEPH LUBASI Appellant
AND
AGNES MATE Respondent
Coram: Hon. Lady Justice N .A Sharpe-Phiri in Chambers
on 6 th September 2022
For the Appellant: Mr. B.J. Mulenga of Messrs Barnaby &
Chitundu Advocates
For the Respondent: Ms. K. Kabalata of Messrs Chalwe &
Kabalata Legal Practitioners
Ex tempore Ruling
Cases referred to:
1. Twampane Mining Co-operative Society Limited v E & M Storti Mining
Limited (2011) Vol 3 ZR 67
Legislation referred to:
1. Court of Appeal Rules, Statutory Instrument No. 65 of 2016
This is an application brought by the Respondent on 16 th August
2022 pursuant to Order X Rule 3(9) and 9(9) of the Court of
Appeal Rules.
Rl
By this application, the Respondent seeks to dismiss the Appellant's
appeal for abuse of process, irregularity and want of prosecution for
the following reasons namely:
1. The Appellant has failed and/ or neglected to comply with
Order X Rules 3(9) and 9 (9) of the Court of Appeal Rules , 2016
as he failed to serve the Notice of Appeal and Memorandum of
Appeal on the Respondent within the prescribed period of time.
2. The Appellant's application in the Court below granting the
Order to appeal to this Court was defective.
3. The matter is res judicata as it was already before the Court of
Appeal and was dismissed for want of prosecution.
The application is supported by an affidavit sworn by one Kasumpa
Mwansa Kabalata, an Advocate seized with conduct of the matter
on b eh a lf of the Respondent. She deposes that the Honourable
Kawimbe, J delivered judgment in a matter between the parties on
10 th August 201 7 in which she set aside the decision of the lower
Court and referred the question of assessment and share of the
m atrimonial property to the learned Deputy Registrar (DR) of the
High Court.
Pursuant to the above, the said DR delivered a ruling on the matter
on 28 th January 2019. Being dissatisfied with the said ruling of the
DR, the Appellant obtained an order for leave to appeal out of time
on 18 th April 2019 and accordingly on 9 th Octa ber 2019, he filed an
appeal b efore a Judge of the High Court against the Ruling.
R2
Before the appeal was heard by the Judge in the lower Court, the
Respondent raised a preliminary issue seeking the Court's
determination as to whether the appeal was properly before it,
arguing that being an assessment, the appeal ought to have been
before the Court of Appeal.
Agreeing with the Respondent in a ruling of 19th March 2021,
Muma, J dismissed the appeal holding that it was before the wrong
Court. Being dissatisfied with this decision of Muma, J, the
Appellant filed a Notice of Appeal before this Court on 19 th April
2021. The Appellant not having taken any steps to prosecute this
appeal by filing the Record of Appeal within the prescribed sixty-day
time frame, on 23 rd June 2021, the Respondent brought an
application to dismiss the appeal for want of prosecution, which
order a single Judge of the Court of Appeal granted with costs on
4 th August 2021.
The parties executed a consent order on 30 th November 2021
agreeing that the Appellant would pay the Respondent a sum of
K25,000 in respect of the Respondent's costs in the appeal. The
Respondent contended that these costs had, to date, not been paid.
The Respondent further contended that strangely, following the
ruling of the Court of Appeal, the Appellant brought an application
before the learned DR for leave to appeal out of time against the
ruling of the DR of 28 th January 2019 . An Order was granted by the
learned DR on 10 th November 2021 despite the Appellant having
a pplie d after two years from the date of the ruling.
R3
Unbeknown to the Respondent, on 6 th December 2021, the
Appellant proceeded to file a Notice of Appeal into the Court of
Appeal against the Ruling of the learned DR of 28 th January 2019.
Despite filing this appeal in this Court, the Appellant has not served
the Notice of Appeal and accompanying Memorandum of Appeal on
the Respondent or her Advocates. Similarly, the Appellant had not
served the Record of Appeal and accompanying Heads of Argument
which were filed on 4 th February 2022 until 13 th July 2022. As a
result, the Respondent has not had sufficient time to respond to the
Appellant's actions. The Respondent urged this Court to dismiss the
appeal for being an abuse of Court process, irregularity and want of
prosecution.
There was no opposing affidavit filed into Court.
The rnatter was scheduled for hearing on 6 September 2021 . On the
said date, both respective Counsel were 1n attendance.
Respondent's Counsel relied on the affidavit in support and the list
of authorities and skeleton arguments of 16 th August 2022.
I have carefully considered the affidavit evidence and the arguments
filed by the respective parties Counsel. I am grateful to Counsel for
the arguments but will not repeat them hereunder.
In relation to the first argument that the Appellant failed and or
neglected to serve the Record of Appeal and Memorandum of Appeal
on the Respondent within the prescribed time.
R4
Counsel for the Respondent relied on the provisions of Order 10
Rules 3(9) and 9(9) of the Court of Appeal Rules which provide
that:
'3(9} A notice of appeal, together with the
memorandum of appeal shall be lodged and served
within a period of fourteen days, all parties directly
affected by the appeal or on their practitioner.'
'9(9} The Appellant shall within fourteen days of filing the
record of appeal together with the heads of
arguments under sub rule (BJ, serve a copy thereof on
each party who has been served with the notice of
appeal and has filed a notice of address for service,
except that if there is more than one respondent
represented by one practitioner, it shall be sufficient
to serve one copy on that practitioner.'
I do concur with the Respondent's Counsel that the above
provisions of Order 10 Rules 3(9) and 9(9) are unambiguous and
couched in mandatory terms with the use of words like 'shall'.
Under Order X Rule 3(9) of the CAR, an Appellant is required to
serve the Notice of Appeal upon a Respondent within fourteen days
of lodging the same. Similarly, Under Order X Rule 9(9) of the CAR,
an Appellant must serve the Respondent with a copy of the Record
of Appeal and Heads of Argument within fourteen days of filing the
Record of Appeal into Court.
RS
The Respondent contends that in this case, the Appellant filed the
Notice of Appeal on 6 th December 2021 and according to the Rules
ought to have served the Respondent with the said documents
within fourteen days from the date thereof, i.e., by 20 t h December
2021. Also, that the Appellant filed the Record of Appeal on 4 th
February 2022 and therefore ought to have served those documents
on the Respondent by 17th February 2022.
Counsel for the Respondent however contends that the Appellant
only served the Record of Appeal upon the Respondent on 12 th July
2022, some five months later but has not to date served the Notice
of appeal. The contention is that the Appellant's actions of not
serving the Respondent with the process was deliberate to
disadvantage her in that she has not had time to defend the appeal.
Counsel argued that the Appellant's contravention of statutory
provisions is an abuse of Court process and ought to be sanctioned.
The Respondent, through his counsel, conceded that it has not
complied with the Rules of this Court. Therefore, it is undebatable
that the Appellant failed to comply with the provision of the Court
of Appeal Rules in relation to service of process upon the
Respondent. The Appellant's counsel argued that the non-
compliance was not fatal and that the Court could exercise its
discretion in the interests of justice.
The issue that falls for consideration thus is: what then is the effect
of the Appellant's failure to comply with the provisions of the law in
relation to service of documents?
R6
Counsel for the Respondent referred the Court to the case of
Twampane Mining Co-operative Society Limited v E & M Storti
Mining Limited, where the Courts held that
'those who choose to ignore rules of Court, do so at their
own peril.. and that a party is obliged to comply with Court
procedure more so in a case where rules are mandatory.'
The foregoing authority is instructive that parties are obliged to
comply with mandatory provisions and where they choose to ignore
the Court rules, they do so at their own peril.
It is evident that the Appellant has been in blatant breach of
mandatory provisions of the Court of Appeal Rules. This breach is
in m y opinion fatal to the continued proceedings of the Appeal as it
seriously prejudices the Respondent in that she has not had an
opportunity to respond to the appeal. Having reached the said
conclusion on the first ground, consideration of the other grounds
thus becomes academic. I accordingly dismiss this appeal for
flouting the provisions of the Court of Appeal Rules to the detriment
of the respondent. I award costs to the respondent, to be taxed in
default of agreement.
Dated at Lusaka this 6 th September 2022.
~ AA
:A. Sharpe-Pir;
f;
COURT OF APPEAL JUDGE
R7
