Mutantika and Another v Chipungu (Appeal No. 94/2012) [2014] ZMSC 127 (13 March 2014);

                                                                                                                           (318)

 

IN THE SUPREME COURT OF ZAMBIA               SCZ JUDGMENT NO.13 OF 2014       HOLDEN AT LUSAKA                                                                  Appeal No. 94 of 2012                                           

 (Civil Jurisdiction)

 

IN THE MATTER OF:                     ARTICLE 72 (1) (a) OF THE CONSTITUTION OF THE REPUBLIC OF ZAMBIA

 

AND

 

IN THE MATTER OF:                     SECTIONS 93 (1) OF THE ELECTORAL ACT NO. 12 OF 2006

AND

 

IN THE MATTER OF:                     RUFUNSA CONSTITUENCY ELECTIONS HELD IN ZAMBIA ON 20^TH SEPTEMBER, 2011

 

B E T W E E N:

 

PHILIP MUTANTIKA                                                                                1^ST APPELLANT

MULYATA SHEAL S.                                                                               2^ND APPELLANT                                                                                                                                          

AND

 

KENNETH CHIPUNGU                                                                              RESPONDENT                 

 

Coram:       Chibomba and Phiri, JJS and Hamaundu, Ag. JS

         On 20^th November, 2013 and on 14^th March,  2014.

 

For the Appellants:               Ms. M. Mukuka and Mr. K. Kaunda, both of

                                                 Ellis and Company.

 

For the Respondent:            Mr. F. Besa of Besa Legal Practitioners.

 

J U D G M E N T

 

Chibomba, JS, delivered the Judgment of the Court.

 

Cases referred to: -

 

1. Ruth Kumbi vs Robinson Caleb Zulu (2009) ZR183
2. NFC Africa Mining PLC vs Techro Zambia Limited (2009) ZR 236
3. Felon Chowa vs ZESCO Limited, Appeal No. 84 of 2012 (Unreported)
4. Ram Auerbach vs Alex Kafwata, Appeal No. 65 of 2000

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1. July Danobo T/A Juldan Motors vs Chimsoro Farms Limited (2009) ZR 148

 

Legislation referred to:-

 

1. The Supreme Court Act, Chapter 25 of the Laws of Zambia
2. The Rules of the Supreme Court, 1999 Edition

 

Other works referred to:

 

1. Brooms Legal Maxims, 10^th Edition, Sweet and Maxwell

When this matter came up for hearing of the Appellants’ Notice of Motion to restore the Appeal on the active cause list, the learned Counsel for the Appellants, Ms. Mukuka, applied for an adjournment to enable the former Counsel for the Appellants, Mr. Makebi Zulu, to file an Affidavit to explain the reasons for his non-attendance on 24^th September, 2013 when the Appeal was dismissed.  We declined to grant an adjournment on ground that the application was unprocedural as the Applicants had already filed an Affidavit in Reply and no leave of Court had been sought or obtained to file the proposed Affidavit by Mr. Makebi Zulu.

          Ms. Mukuka then proceeded to inform the Court that the Appellants had filed a Notice to Raise Preliminary Objection.  She informed us that the objection was that paragraphs 6, 12 to 24 of the Respondent’s Affidavit in Opposition to the Notice of Motion contain extraneous matters in form of legal arguments and they should therefore, be expunged from the record on that ground.  In support of

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this contention, Order 41/5/1 of the Rules of the Supreme Court (RSC) was cited.  Counsel submitted that an Affidavit should only contain facts that a deponent is able to prove from his own knowledge.

          Citing the notes to Order 41/5/2 of the RSC, Counsel argued that an Affidavit in this respect can be equated to oral evidence.  Hence, an Affidavit should not contain an opinion of Counsel.  The Notes under this Rule state that:-

“... save in the excepted cases, an affidavit must contain the evidence of the deponent as to such facts only as he is able to speak to of his own knowledge, and to this extent, equating affidavit evidence to oral evidence given in Court.”

 

          It was contended that in accordance with Order 41/5 of the RSC, matters contained in paragraphs 6, 12 to 24 of the Affidavit in Opposition are not proper material for an Affidavit. Hence, the same should be expunged from the Affidavit in Opposition.

          Paragraphs 6, 12 to 24 of the Affidavit in Opposition sought to be expunged from the record provide as follows:  

“6.       That the non-attendance of Mr. Makebi Zulu can therefore, not be a basis for setting aside the Ruling of the full bench of the Supreme Court as his law firm, Makebi Zulu Advocates was not on record, but the firm of Ferd Jere Advocates.

 

12.       That the Supreme Court was thus on firm grounds when it dismissed the appeal with costs after finding that the Applicants herein had breached Rule 70 and Rule 71 of the Supreme Court Act subsidiary Rules Cap 25 of the Laws of Zambia.

 

 

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13.       That I therefore, verily believe that the Applicants have not presented any compelling reasons to justify the restoration of the Appeal after it was conclusively dismissed through Judgment of the FULL BENCH of the Supreme Court.

 

14.       That the suggestion that the Applicants have not received a satisfactory explanation from Mr. Makebi Zulu whose law firm is not on record as representing them is an irrelevant issue before the Supreme Court on account of the fact that, that is a private issue arising from a “lawyer-client” relationship to which neither myself nor the Supreme Court is privy.

 

15.       That even the information that Mr. Makebi Zulu did not indicate his unwillingness to prepare the Heads of Argument or attend court and indeed even the information that the Applicants have terminated their relationship with Mr. Makebi Zulu is irrelevant before this Court as it is not within the Province of this Honourable Court to consider the nature of litigants relationships with their lawyers.

 

16.       That I am advised by my Advocates Messrs Besa Legal Practitioners and verily believe that the full Bench of the Supreme Court which dismissed the Applicant’s appeal is the highest Court in Zambia hence its decision is final, hence this appeal or notice of motion is not legally tenable.

 

17.       That I am further advised that even Rule 48 (5) of the Rules of the Court pursuant to which this notice of motion has been filed does not entitle the Appellants to the reliefs they seek on account of the fact that, that Rule refers to appeals against the decision of the single Judge of the Supreme court and not the full bench.

 

18.       That I am furthermore advised by my Advocates aforesaid and verily believe that even the Applicants’ application to file Heads of Argument out of time as contained in their Notice of Motion is not legally tenable and is like locking the stables after the horses have already bolted as there is no more any appeal for determination the same having been dismissed already.

 

19.       That I further verily believe that the Applicants’ application to argue against the award of costs in the Court below after the appeal has already been dismissed is also not tenable at law and the said award of costs in the Court below has already been confirmed by this Honourable Court when it dismissed the appeal.

 

20.       That I am furthermore advised by my advocates and verily believe that Rule 71 (2) of this Court’s Rules pursuant to which the Applicants seek the Judgment of the full bench to be overturned

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states that the party should have been absent and should give sufficient reasons for their absence.

 

21.       That the applicants have expressly conceded that they were present when his Lordship, Mr. Justice Mwanamwambwa called out for them but opted to remain quiet, hence they have not shown any sufficient reasons for their failure to prosecute the appeal to merit the Court’s discretion to overturn the decision of the FULL BENCH of the Supreme Court.

 

22.       That I verily believe that this matter having been dismissed by the full bench of the Supreme Court after the Applicants defaulted on not just making an appearance but also on filing Heads of Argument, the instant application is therefore, an ABUSE OF THE COURT PROCESS, which is frowned upon by the Honourable Court.

 

23.       That I am advised by my advocates and verily believe that once the full bench of the Supreme Court decides, the matter reaches finality and the successful party should be allowed to enjoy the fruits of the Supreme Court’s decision.

 

24.       That I therefore, urge this Honourable Court to dismiss the Notice of Motion as the same lacks merit, and is an abuse of the Court process.”

 

The reason given is that the said paragraphs contain legal arguments.

In opposing the Notice to Raise Preliminary Objection, the learned Counsel for the Respondent,  Mr. Besa, submitted that the Notice to Raise Preliminary Objection is misconceived on ground that an Affidavit containing the evidence of the deponent can be presented in form of information, knowledge and belief that the deponent has in relation to the subject matter.  That in the Affidavit in question, the deponent was at liberty to state the source of that information, knowledge and belief.  Mr.

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Besa, nevertheless, conceded that paragraphs 17 and 24 contain extraneous matters.  He, however, argued that the rest of the paragraphs disclose the source of information and belief and should not be expunged.

In reply, Ms. Mukuka, reiterated that with the exception of paragraph 24 which contains a prayer, the rest of the above captioned paragraphs contain legal arguments.  Counsel reiterated her contention that the rest of the paragraphs should be expunged as they contain extraneous matters.

Mr. Kaunda, in reply, also submitted that Counsel for the Respondent had not availed the Court any authorities in support of his submissions.

We have seriously considered the Notice to Raise Preliminary Objection together with the submissions by the learned Counsel for the parties and the contents of the Affidavit in question and we have paid close attention to the contents of each of the paragraphs alleged to contain extraneous matters.  As has been conceded by the learned Counsel for the Respondent, paragraphs 17 and 24 of the Affidavit in Opposition are expunged from the Affidavit in Opposition as they offend Order 41/5/1 of the RSC. 

 

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Perusal of paragraphs 12, 16, 18, 19 and 20 show that these paragraphs, indeed, contain legal arguments.  They cite and refer to the Rules of Court.  Hence, the Preliminary Objection on the cited paragraphs is valid.  We, accordingly, Order and direct that the paragraphs specified above be expunged from the Affidavit in Opposition. 

It is however, our firm view that paragraphs 6, 13, 14, 15, 21, 22 and 23 of the Affidavit in Opposition, do not and cannot be said to contain extraneous matters in form of any legal arguments.  We, are therefore, not persuaded that the above paragraphs should be expunged from the record.

Coming to the main application before us for restoration of the Appeal that was dismissed by the full bench on 24^th September, 2013, the Notice of Motion to restore was filed pursuant to Rules 48 (5) and 71 (2) of the Supreme Court Rules (SCR), as amended by Statutory Instrument No. 26 of 2012.

The Notice of Motion is supported by an Affidavit.  The gist of the Affidavit in Support is that from the inception of the Election Petition in the High Court, the Appellants were represented by Mr. Makebi Zulu from the Law firm known as “Messrs Ferd Jere and Company.”  That Mr. Zulu continued to represent the Appellants when he formed his own Law

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Firm, Makebi Zulu Advocates.  That in late July, or early August, 2013, Mr. Makebi Zulu advised the Appellants that the Supreme Court had set 24^th September, 2013 as hearing date of their Appeal.  That, however, in the morning on 24^th September, 2013, the Appellants attended the Session at the Supreme Court and sat in the gallery awaiting the hearing of their Appeal.  That when their Appeal was called, Counsel for the Respondent informed the Court that the Appellants’ Counsel was aware of the hearing date but that he was not in attendance and that Heads of Argument had not been filed.  That the Appellants who were personally in attendance did not rise to address the Court as the Court did not enquire whether they were present or invite them to speak.  That during the High Court proceedings, they had on more than one occasion, been admonished for addressing the Judge directly.  That when this Court rose to consider its decision, the Appellants made frantic efforts to reach Mr. Makebi Zulu by telephone but to no avail.  That the Court resumed sitting a few minutes later and dismissed the Appeal with costs to the Respondent.  Immediately the Court rose, the Appellants approached a Court official, Mr. Mweetwa, who was present throughout the proceedings and asked him to explain the implications of the Court Order.  That Mr. Mweetwa explained to them and asked why they had not stood up to address the Court to which they rendered an

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explanation.  That later in the day, they delivered a letter addressed to the Chief Marshal over the dismissal of their Appeal and a reply was received from the Master of the Supreme Court.  That to date, they have not received a satisfactory explanation as to why Mr. Makebi Zulu had not appeared before the Court at the hearing of the Appeal or why he did not file Heads of Argument on their behalf before the date of hearing.  That as a result, the Appellants have terminated their relationship with Mr. Makebi Zulu and have now retained Messrs Ellis & Company in his place. 

The Appellants, further, deposed that the Respondent will not suffer any serious prejudice should the Appeal be restored but that the interests of justice will be served as the Respondent is still a Member of Parliament for Rufunsa Constituency and has not been prevented from carrying out his duties due to the subsistence of the Appeal.

In the Heads of Argument filed in support of the Notice of Motion, it was submitted that this Court has jurisdiction to restore any appeal which has been dismissed due to non-attendance of a party under Rule 71 (2) of the SCR.  Citing the case of Ruth Kumbi vs Robinson Caleb Zulu¹, it was contended that the Affidavit in Support of the Notice of Motion, in particular, paragraphs 18 to 20, contain sufficient reasons to

 

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persuade this Court to restore the Appeal.  In the above cited case, we stated that:-

“We hold the view that the application for restoration of the appeal can either be granted or rejected depending on the given circumstances of the case.”

 

In augmenting the arguments in the Heads of Argument, the learned Counsel for the Appellants, Ms. Mukuka, more or less repeated the contents of the Affidavit in Support.  We do not intend to repeat them suffice to stress the Appellants’ plea that the default by their former Counsel should not be blamed on them as they are lay persons who were taken by surprise as a result of non-appearance of their Counsel and that this being a matter of public interest and since no prejudice will be caused to the Respondent, the Appeal should be restored. 

          In opposing this Notice of Motion, the learned Counsel for the Respondent, Mr. Besa, relied on the Affidavit in Opposition and on the Heads of Argument filed which he also augmented with oral submissions.  The gist of the Affidavit in Opposition is that the Appellants were represented by Messrs Ferd Jere and Company, a Law Firm under which Mr. Makebi Zulu was practicing.  That there is no evidence that Mr. Makebi Zulu continued to have conduct of this matter after he moved to Messrs Makebi Zulu Advocates as no Notice of Change of Advocates was received by the Respondent from either Ferd Jere and Company

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and/or Makebi Zulu Advocates and that no such Notice was filed in Court.  Therefore, that since Messrs Ferd Jere and Company were on record as Advocates for the Appellants and not Messrs Makebi Zulu Advocates, the non-attendance of Mr. Makebi Zulu cannot be the basis for setting aside the Ruling of the full bench of this Court.  Further, that the claim that Mr. Makebi Zulu has not given any satisfactory explanation to the Appellants and the assertion that he did not indicate his unwillingness to prepare Heads of Argument and the claim that the Appellants have terminated their relationship with him, are not relevant factors to compel this Court to restore the Appeal which was conclusively dismissed by the full bench.  Further, that even though the Respondent’s Advocates were not obliged, a letter was written to the Appellants’ Advocates, reminding them to prepare and serve the Respondent the Appellants’ Heads of Argument and also reminded them of the hearing date but that no response was received.  That this was brought to the Court’s attention at the hearing which showed that the Appellants, through Counsel, were aware of the requirement to file Heads of Argument.

           It was further averred that at the hearing of the Appeal on 24^th September, 2013, the Court repeatedly asked for the whereabouts of the Appellants and their Counsel, but that the Appellants chose to remain

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silent, an act to be blamed only on the Appellants themselves and not their Counsel as they have expressly conceded that they were present in Court.  And that the default by the Appellants was not only by not making an appearance but also by not filing Heads of Argument.  Therefore, that as the Appellants failed to prosecute their Appeal, the Motion is an abuse of the Court process as the matter had reached its finality. 

          In the Respondent’s Heads of Argument, it was submitted that the Ruling by the full bench delivered on 24^th September, 2013 which dismissed the Appeal with costs is final under the principle of stare decisis.  And that the Appellants were found wanting for, inter alia, breaching Rules 69, 70 and 71 of the SCR for not filing Heads of Argument or appearing either in person or by Counsel at the hearing of their Appeal and for not filing a notice of non-appearance. 

          It was further submitted that Rule 48 (5) of the SCR, cannot by any stretch of imagination be used to challenge the decision of the full bench as that Rule deals with applications to a single Judge.  Further, that the full bench, once properly constituted and once it makes a final decision, becomes functus officio and cannot be overruled by a Notice of Motion under Rule 48 (5) of the SCR. 

 

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It was argued that Rule 71 (2) of the SCR, relied upon by the Applicants allows the Court to restore an appeal that has been dismissed for non-appearance where sufficient reason is shown for non-appearance.  That, however, in this case, no sufficient reason has been shown as the Appellants are seeking to challenge the decision of the full bench due to non-appearance of a lawyer who was not on record as representing the Appellants. It was further contended that even assuming that Mr. Makebi Zulu was negligent or incompetent, which assumption the Respondent denies, then the remedy lies against the lawyer for negligence.  Hence, the decision of the full bench cannot be challenged on the basis that one of the lawyers for the parties was incompetent or negligent. 

It was further contended that there should be finality to litigation and a decision of the full bench of this Court guarantees that finality.  Hence, in this case, the Respondent should be allowed to enjoy the fruits of the Judgment granted in his favour.  As such, this Notice of Motion amounts to an abuse of the Court process and it must be dismissed with costs.

          In augmenting the Heads of Argument, Mr. Besa stressed that Rule 48 (5) of the SCR has been wrongfully relied upon by the Appellants as it relates to appeals against the decision of a single Judge

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of this Court when in this case, the Appellants’ Appeal was dismissed by the full bench.  Hence, this Motion lacks merit and should be dismissed. 

In response to the argument relating to breach of Rule 70 of the SCR, Mr. Besa more or less repeated the arguments in the Respondent’s Heads of Argument.  We do not intend to repeat these.  In terms of Rule 71 (2) of the SCR, Mr. Besa emphasised that the Rule is not helpful to the Appellants as it applies to situations where the non-attendance is for good reasons. Hence, this Court is functus officio in respect of this Appeal and that this Motion should be dismissed with costs for want of merit. 

The learned Counsel for the Appellants referred us to the Affidavit in Reply.  The gist of the Affidavit in Reply, is that Mr. Makebi Zulu continued to be lawyer for the Appellants after he left Ferd Jere and Company and that if he did not file a Notice of Change of Advocates in this Court, then he was either negligent or incompetent.  Further, that Mr. Makebi Zulu’s conduct was deliberate as he is now one of the lawyers for Dr. Nevers Mumba, the Party President of the Movement for Multiparty Democracy (MMD) to which the Respondent belongs.  That this is the reason he has not yet given a reason as to why he neither filed the Appellants’ Heads of Argument nor attended Court.  And that a

 

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Complaint has since been lodged against him to the Legal Practitioners’ Committee of the Law Association of Zambia (LAZ). 

          Mr. Kaunda, in reply, submitted that Rule 48, of the SCR, applies to decisions of both a single Judge and the full bench including the decision to dismiss the Appeal.  Counsel submitted that the contention that this Court is functus officio is misconceived as what the Appellants are seeking is restoration of their Appeal and that this application is not a determination of the Appeal. 

We have seriously considered this Motion together with the Affidavits filed, the Heads of Argument, the authorities cited therein and the oral submissions by the learned Counsel for the parties.  We have also considered the Ruling leading to this Notice of Motion.  It is our considered view that the question raised by this Motion is whether in the circumstances of this case, the Appeal that was dismissed by the full Court on 24^th September, 2013 should be restored on the active cause list. 

The thrust of the Appellants’ argument in support of their contention that the Appeal should be restored is that the default of their Counsel of failing to attend Court and the failure to file Heads of Argument should not be blamed on them as they are lay persons who were in fact, present in the Courtroom on the hearing date.  Further, that

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they could not personally address the Court for fear of admonishment and that when the Court went on recess, they made frantic efforts to contact their lawyer but to no avail.  And that this Court has discretionary power to order restoration of the Appeal under Rules 48 (5) and 71 (2) of the SCR and that no prejudice will be occasioned to the Respondent if this Appeal is restored as the Respondent is still a Member of Parliament for Rufunsa Constituency and he has not been prevented from carrying out his duties.

          On the other hand, the crux of the Respondent’s submissions in response is that no compelling reason(s) have been given as to why the Appeal should be restored and that the Appeal was not only dismissed for non-attendance of the Appellants and their Counsel but also for failure to file Heads of Argument contrary to Rules 69 and 70 of the SCR.  Further, that the “lawyer-client relationship” between the Appellants and their Counsel, Mr. Makebi Zulu, is no concern of this Court.  And that Rule 48 (5) of the SCR does not apply to final decisions of this Court as it only applies to decisions of a single Judge of this Court and that Rule 71 (2) of the SCR does not apply as the Appellants were personally present in Court during the hearing.

We have considered the above arguments.  As a starting point, we shall first deal with the submission by the Respondent’s Counsel that

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Rule 48 (5) of the SCR, pursuant to which the Notice of Motion was filed, only applies to decisions of a single Judge of this Court and not to decisions of the full bench.  Rule 48 (5) of the SCR provides that:-

“48 (5)            An application involving the decision of an appeal shall be made to the Court in like manner as aforesaid, but the proceedings shall be filed in thirteen hard copies and an electronic copy and the application shall be heard in Court unless the Chief Justice or presiding judge shall otherwise direct.”

 

As can be seen from the above provision, there is no doubt that Rule 48 (5) applies to decisions of the full bench and not to decisions of a Single Judge of the Court.  We are fortified in so holding by the manner in which Rule 48 (5) is couched.  Firstly, the Rule requires applications to be filed in thirteen copies.   Secondly, the rule provides that the hearing of such applications shall be heard in Court.  Further, a single Judge of this Court does not sit in open Court to hear such applications.  It would also be absurd to require a party to file thirteen hard copies of such application to a Single Judge.  It is Rule 48 (1), (3) and (4) which provides for applications emanating from decisions of a single Judge of the Court.

Apart from relying on Rule 48 (5) in bringing this Application, the Appellants also cited Rule 71 (2) of the SCR.  This Rule allows a party whose appeal was dismissed by the Court due to non-attendance to apply to have the appeal restored.  The Rule also empowers the Court

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to restore such an appeal upon such party giving sufficient reason(s) for his absence.  Rule 71 (2) provides that: -

“71 (2)         Where any appeal is dismissed, allowed, or struck out under the provisions of sub-rule (1), any party who was absent may apply to the Court, within seven days of the dismissal, allowing or striking out of the appeal for the re-hearing or hearing of the appeal, as the case may be, and, where it is proved that there was sufficient reason for the absence of such party, the Court may order that the appeal be restored for hearing upon such terms as to costs or otherwise as it thinks fit.”

 

In view of the provision of Rules 48 (5) and 71 (2) of the SCR, there can be no doubt that this Motion was properly brought before us by the Appellants under the above Rules.  Therefore, the Respondent’s contention that Rule 71 (2) does not apply to decisions of the full bench is misconceived.

Having resolved the question whether or not this Application is properly before us, our firm view is that Rule 71 (2) of the SCR is central to the determination of the main question before us as to whether the Appeal that was dismissed should be restored or not.  As stated above, Rule 71 (2) allows a party whose appeal was dismissed by the Court due to non-attendance to apply to have the appeal restored.  The Rule however, requires such a party to give sufficient reason(s) for his absence.  The Rule also gives the Court discretionary power to restore an appeal where sufficient reason(s) is/are given for the absence.  So,

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the restoration is not a matter of right but discretional and for good and/or sufficient reasons.  It is also settled law that discretionary power must be exercised judiciously and for good and compelling reasons.

In the current case, the reasons given by the Appellants for their absence is that they do not know the reason why their legal Counsel (Mr. Makebi Zulu), did not attend Court and why he did not file Heads of Argument.  They also claimed that they were present in Court at the time their Appeal was dismissed.  And that they should not be prejudiced by their Counsel’s failure to attend Court and for his negligence and/or incompetence by his failure to file Heads of Argument.  Further, that the Respondent will not be prejudiced in any way if the Appeal is restored while the converse will apply.  

In determining the central question whether the reasons given by the Appellants are sufficient to persuade us to exercise our discretionary power in their favour and order that the appeal that was dismissed be restored on the active cause list, it would be prudent to first examine the circumstances that led to the dismissal of the Appeal.  We propose to do so by recasting hereunder the verbatim record of proceedings for 24^th September, 2013  when the Appeal was dismissed.  This reads as follows:-

 

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“Court Marshal:       Next on the list is Appeal Number 94 of 2012.  It’s an Election Petition for Rufunsa Constituency.  It’s an Appeal between Philip Mutantika as First Appellant and Mulyata Sheal S. as Second Appellant and Kenneth Chipungu as the Respondent.  Matter is for hearing.  Most obliged.

 

Court:                        Can we have appearances?

 

Counsel:                   For the Respondents….

 

Court:                        Let’s start with the Appellants. Who appears for the Appellants?

 

Counsel:                   There is no appearance.

 

Court:                        Yes, go ahead Counsel.

 

Counsel:                   For the Respondent, W. Mutofwe from Messrs Douglas and Partners.  I appear with Mr. F. Besa from Messrs Besa Legal Practitioners.  My Lords and my Ladies, this is Mr. Besa’s first appearance before the Supreme Court.  I will therefore unleash him to argue on behalf of the Respondent.

 

Court:                        You are welcome to the Supreme Court.

 

Counsel:                   My Lords and my Ladies, we wish to bring to the attention of the Court that we have not received any Heads of Argument in support of the Appeal from Messrs Ferd Jere and Company who are on record as representing the Appellants.  This was despite us writing to them requesting the same.  And as the Court had already noted, there is no appearance from Messrs Ferd Jere and Company on behalf of the Appellants.  My Lords and my Ladies, we have not received any Notice of non-appearance in line with Rule 69, sub-rule 1 of the Supreme Court Rules and it is our humble argument that the Appellants or their Advocates are already in breach of that Rule. 

Furthermore, my Lords and my Ladies, Rule 70, sub-rule 1 of the Rules of the Supreme Court or this Honourable Court, makes it mandatory with the use of the word shall, for the Appellants to file Heads of Argument and as stated in sub-rule 2 of the same Rule 70, that should be done 7 days before today and this too has not been done and neither is there appearance once again as required by the Rules.  In

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view of the foregoing my Lords and my Ladies and in line with Rules 71 of the Rules of this Honourable Court, we apply that the Election Petition Appeal against the Respondent be dismissed with costs forthwith for the breach of the provisions therewith.  I beg to submit.

 

Court:                        Counsel for the Respondent, do you have information that the other side knows of today’s hearing?

 

Counsel:                   My Lord, we have no such information suffice to say that, they have a duty to make follow-ups to establish the status of their own Appeal and this would have been different if they were the Respondent.

 

Court:                        The record will reflect as such. Marshal, were they served?

 

Court Marshal:        My Lord, we did effect service through the pigeon holes, we did not follow the law firms.

 

Counsel:                   Perhaps my Lord I may add that although I filed no Affidavit of service, I had in fact written to them on 14^th of August notifying them of today’s hearing date and requesting them to serve us with Heads of Argument and they acknowledged receiving my letter to that effect.

 

Court:                        We shall take a fifteen minutes break.

 

Court Marshal:        My Lords and my Ladies, I put up the matter which was stood down.

 

Court:                        This is the Ruling of the Court: the Appellants and their Advocates are aware of this date, we say so because on 14^th August, 2013, Advocates for the Respondent wrote to Advocates for the Appellants notifying or reminding them that this matter was to be heard today.  That letter carried a request for the Appellants’ side to send the Heads of Argument to the Respondent’s side.  The letter was received on 28^th August, this acknowledgement is certified by a date stamp from Ferd Jere and Company and has a signature from a member of that law firm.  The Record of Appeal was filed on 28^th June, 2012, more than a year ago.  To date, the Appellants have not filed Heads of Argument; the Appellants and their Counsel have not appeared before this Court and

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                                    there is no Notice of Non-appearance.  The foregoing overviews amount to breach of Supreme Court Rules 70, sub-rule 1 and 71, sub-rule 1 (a).  Accordingly, we hereby dismiss this Petition.  We award costs to the Respondent to be taxed in default of agreement.”

 

As can be seen from the above Ruling, the Appeal was dismissed on two grounds.  These are: (i) the failure to file Heads of Argument contrary to Rule 70 (1) and (ii) Non-appearance of both the Appellants and their Counsel from Court at the hearing contrary to Rule 71 (1) of the SCR.

As reflected in the Ruling, the Court also took into account the fact that the Appellants and their Counsel were aware of the hearing date as they had in fact, been reminded in writing of the hearing date and the need to file Heads of Argument by the learned Counsel for the Respondent.  The Court also noted that the Record of Appeal was filed as far back as June, 2012.

On the failure to file Heads of Argument and the Appellants’ explanation that they did not know the reason why their Counsel did not file the Heads of Argument and their earnest plea that they should not be prejudiced by the default, negligence and/or incompetence of their Counsel, our response is that Rules 70 (1) of the SCR and 58 (5) as amended by Statutory Instrument No. 26 of 2012 are mandatory.  Both provisions are couched in a mandatory manner as each uses the word

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“shall”.  The two Rules are therefore, not regulatory as they do not at all give the Court discretionary power.  The Rules provide, respectively, as follows:-

 “58 (5)           The appellant shall file in the Registry thirteen hard copies of the record of appeal, including an electronic copy thereof, together with the heads of argument.

 

70 (1)              An appellant or respondent who will be represented by a practitioner at the hearing of the appeal shall prepare a document setting out the main heads of his argument together with the authorities to be cited in support of each head.” ” (Underlining ours for emphasis only).

 

 

Clearly from the above, any breach of Rule 58 (5) is fatal to a party’s appeal.  In the current case, although the Record of Appeal was filed as far back as 29^th June, 2012, Heads of Argument were not filed in total breach of Rule 58 (5) and the default continued for a period of more than 14 months.

On our part, we have always underscored the need for parties to strictly adhere to the Rules of Court and that the failure to comply can be fatal to a party’s case.  This is the position we took in NFC Africa Mining PLC vs Techro Zambia Limited² in which we made it clear that litigants who fail to strictly adhere to the rules of Court risk having their appeals being dismissed and we dismissed the Appeal in that case.  We reiterate this position in the current case.

 

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Recently, on 6^th February, 2014, in the case of Felon Chowa vs ZESCO Limited³, we ordered that the appeal be dismissed for breach of Rule 58 (5) of the SCR.  In that case, when the learned Counsel for the Appellant applied at the hearing, for leave to file the appellant’s Heads of Argument out of time, we declined to grant the application as the Heads of Argument had not been filed together with the Record of Appeal.

Having illustrated that the failure to comply with Rule 58 (5) as amended is fatal, it follows that the vehement plea by the Appellants, effervescent as it was, that the default of their legal Counsel and/or his negligence or incompetence should not be visited on them is, inconsequential and flies directly into the teeth of Rule 58 (5) of the SCR.

With regard to the Appellants’ failure to appear at the hearing of the Appeal and their claim that they did not know why their Counsel did not turn up in Court, we again refer to what transpired when the Appeal was dismissed.  As illustrated above, when the Appeal was called, there was no appearance by either the Appellants or their Counsel.  The Appellants have, however, averred in their Affidavit that in fact, they were present in the Courtroom at all times and that when the Court went on recess, they made frantic efforts to contact their Lawyer but to no

 

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avail.  And that they did not do anything to bring their presence in Court to the attention of the Court as they feared being admonished.

We must say from the outset that the conduct of the Appellants was to say the least, so strange and appalling such that we cannot find the right words to express our consternation.  How can two men of full age and capacity, who aspired and stood for the much revered position of Member of Parliament, sit in Court and decide to remain mute, whether by visitation of God or otherwise, despite hearing their names and their Appeal being called for hearing by the Court, more so, in the absence of their legal Counsel?  This is not the type of conduct that the Courts of the land expect of prudent and serious litigants.  Indeed, their conduct fell short of what is expected of a reasonable man of their standing, let alone a litigant who is seeking to have his/her constitutional rights enforced by the supreme court of the land. 

As shown by the verbatim record of proceedings recast above, before dismissing the Appeal, the Court in fact, went out of its way and inquired on the whereabouts of the Appellants and their Counsel.  The record shows that the Appellants had more than three opportunities to make their presence known to the Court before the Appeal was dismissed. 

Rule 71 (1) (a) of the SCR provides that:-

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71 (1)              Subject to the provisions of rule 69, if on any day fixed for the hearing of an appeal

 

1. The appellant does not appear in person or by practitioner, the appeal may be dismissed.”  (Underlining ours).

 

In view of the above provision, Rule 71 (1) (a) is doubtless, discretional as the word “may” is used.  So, the Court has discretionary power to dismiss an appeal for non-attendance of the appellant or his Counsel.  The question is, do the Appellants come under this Rule?  The answer is that Rule 71 (2) does not apply to a party who is present in Court.  The Appellants here have indicated that they were present in Court throughout the proceedings when their Appeal was dismissed.  At the same time, they have sought recourse under the Rule meant for a party who is absent.  Hence, the maxim expounded by Brooms’ Legal Maxims:  “allegans contraria non est audiendus (he is not to be heard he who alleges things contrary to each other)” applies.  The Appellants  cannot be allowed to claim things that are contrary to each other as in one breath, they say that they were present in Court throughout but at the same time, they seek to come under the Rule that applies to a party who was absent from Court.  The maxim is explained thus: -

 “This elementary rule of logic, which is frequently applied in our Courts of Justice, will receive occasional illustration in the course of this work. We may for the present observe that it expresses, in other language, the

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trite saying of Lord Kenyon, that a man shall not be permitted to “blow hot and cold” with reference to the same transaction, or insist, at different times, on the truth of each of two conflicting allegations, according to the promptings of his private interest.”

 

We, must also reiterate our position that a party who is represented by a lawyer is not excused from attending Court.  In the case of Ram Auerbach vs Alex Kafwata⁴, we observed that litigants have a duty to attend Court and that litigants default in attending Court at their own peril.  We must also note that although the facts in the above cited case are not on all fours with the current case, the principle stated above equally applies in the current case.  In dismissing the appeal in that case, we, inter alia, stated that:-

“…. Litigants default at their own peril since any rights available as of course to a non-defaulter are usually jeopardized.”

 

The point we are making is that, a party whose legal Counsel is not present in Court has the obligation of bringing to the attention of the Court his/her own presence.  We, do not therefore, accept the Appellants’ claim that they did not bring their presence to the Court’s attention for fear of admonishment as that cannot be sufficient reason for ordering restoration of an Appeal.

It is our further considered view that the Appellants should have been more concerned as their foremost duty and interest ought to have been the prosecution of their Appeal.  The Appellants should also have

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been more cautious in that the Appeal concerned an election Petition which is a Constitutional matter that involves the governance of this Country and involved public interest issues.  Therefore, the laxity exhibited by the Appellants can only be an indication of their disinterest in prosecuting their Appeal rather than the “fear of admonishment”, alleged.  Hence, they have no one to blame but themselves for the position they have found themselves in as a result of the stand we have taken on their Appeal.

Although it has also been argued and spiritedly so, if we may say, that the Appellants should not be prejudiced by the default of their Counsel and/or his negligence or incompetence, our firm position has always been that the relationship between a party and his lawyer is of no concern of the Court as that is a private matter which has nothing to do with the Court. Hence, it cannot be used as a ground for ordering restoration of an Appeal that was dismissed due to absence of the Appellants and their legal Counsel. Surely, the incompetence or negligence of one’s legal Counsel cannot be sufficient ground for restoring an Appeal that was dismissed.  

In July Danobo T/A Juldan Motors vs Chimsoro Farms Limited⁵, we took the position that if at all the Appellant  would suffer any prejudice by the stand that we took of dismissing the  Appeal, then

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he may have recourse to his legal Counsel who did not handle his appeal properly.   It follows that if the Appellants in the current case will be prejudiced in any way by the stand that we have taken of declining to order the restoration of the Appeal, it is up to them to seek recourse from their legal Counsel.

In summing up, we wish to make it clear that although the non-attendance of the Appellants and/or their legal Counsel at the hearing of their Appeal is a serious breach of the Rules of Court, the failure to file Heads of Argument contrary to Rule 58 (5) alone is what was fatal to the Appeal and is also fatal to their Application for restoration as Rule 58 (5) of the SCR is mandatory and immutable.

Finally, we wish to state that several appeals before us have fallen victim of this Rule but where the parties have complied with the Rules of Court in all other aspects, we have reserved the appeals for judgment even where the appellant and/or his/her legal Counsel is absent, so long as the appeal complies with the Rules of Court.  So, this must be a timely warning to parties to ensure compliance with the Rules of Court as breach of the Rules, can in appropriate cases, be fatal as demonstrated above.

For the reasons given above, the Appellants’ application to restore the Appeal that was dismissed is declined.  The Notice of Motion is

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dismissed with costs to the Respondent, to be taxed in default of agreement.

 

…………………………………

H. Chibomba

SUPREME COURT JUDGE

 

 

 

…………………………………             ………………………………………….

          G. S. Phiri                                               E. M. Hamaundu

SUPREME COURT JUDGE                ACTING SUPREME COURT JUDGE