IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 123/2010
HOLDEN AT LUSAKA
RESHMA ULPESH PATEL 1ST APPELLANT
CHANDRIKA DIPARK PATEL 2ND APPELLANT
OKAPI INVESTMENTS LIMITED RESPONDENT
Coram: MUYOVWE, JS, LISIMBA AND KAOMA, A/JJS
On 11th July, 2013
For the Appellants: No appearance
For the Respondent: Mr. Eric S. Silwamba, S.C., Mr. J. Jalasi
of Messrs Eric Silwamba, Jalasi &
Linyama Legal Practitioners with Mrs. I.
M. Kunda of Messrs George Kunda & Co.
MUYOVWE, JS, delivered the Judgment of the Court.
When the matter came up for hearing on 11th July, 2013, we dismissed the appeal and we indicated that we would give our reasons later. We now give our reasons.
This is an appeal against the Judgment of the High Court, in which the respondent’s claim was upheld and the Court dismissed the appellants’ counter-claim.
The respondent’s claim, as per the Originating Summons in the Court below, was to determine, inter alia, that the respondents, as owners of Farms Nos. 4770B, 4771 and 4766, Lusaka West, were entitled together with their servants, agents and relatives to the usual right of way to and from Lusaka on foot or by vehicles over the road which passes through the adjacent Farm No. 10173, owned by the appellants for the sole purpose of gaining access to and from the said Farms Nos. 4770B, 4771 and 4766, Lusaka West and also for an injunction restraining the appellants from obstructing them from gaining access through Farm No. 10173 and also for an injunction restraining the respondents or their agents from obstructing the said road.
The appellants made a counter-claim, inter alia, for an injunction to restrain the respondent and its servants and agents from trespassing through Farm No. 10173 and for an Order that the respondent and its servants and agents use the Gazetted Reserve Road.
The appellants being dissatisfied with the whole Judgment appealed to this Court.
At the hearing of the appeal, there was no appearance for the appellants.
On behalf of the respondent, State Counsel Silwamba referred us to Rule 71(1)(a) of the Supreme Court Rules which provides that:-
“Subject to the provisions of rule 69, if on any day fixed for the hearing of an appeal-
(a)The appellant does not appear in person or by
practitioner, the appeal may be dismissed.”
Further, he also cited Rule 69(1) which states that:-
“An appellant or a respondent may at any time not less than seven days before the day fixed for the hearing but after lodgement file in the Registry a notice in writing, substantially in Form CIV/6 of the Third Schedule, that he does not wish to be present in person or by practitioner on the hearing of the appeal, together with five copies of such argument set out in numbered paragraphs under distinct heads as he desires to submit to the Court.”
State Counsel submitted that the appellants or their Counsel did not file any notice to the effect that they would not be in attendance and that they would rely on their heads of argument. In the premises, Mr. Silwamba sought the full force of the Court.
We did consider the relevant Rules cited by State Counsel. It goes without saying that this Court is mandated by the Rules cited above to dismiss an appeal for non-attendance of the appellant. In this case, the respondent was present at the hearing but the appellant did not attend and no explanation was offered. In the circumstances, we agreed that this was a fit case for dismissal as per the provisions cited herein.
Costs to the respondents, to be taxed in default of agreement.
SUPREME COURT JUDGE
ACTING SUPREME COURT JUDGE
ACTING SUPREME COURT JUDGE