Gitrine N. Sakala , Lewis Ncube Vs Fert Seedf & Grain (PVT ... · PDF fileGITRINE N. SAKALA LEWIS NCUBE AND FERT SEED AND ... Appellant was a director inthe 2nd Respondent company

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IN THE SUPREME COURT OF ZAMBIAHOLDEN AT NDOLA(Civil Jurisdiction)

BETWEEN:

GITRINE N. SAKALA

LEWIS NCUBE

AND

FERT SEED AND GRAIN (PVT) LIMITED

SYNERGY COMMODITIES ZAMBIA LTO.

Appeal No. 85/2015

1ST APPELLANT

2ND APPELLANT

1ST RESPONDENT

2ND RESPONDENT

Coram: Chibomba, Hamaundu and Kaoma, JJS.

On 2nd September, 2015 and on 91h September, 2015

For the Appellant: -

For the 151 Respondent: -

Mr. R. M. Mainza, of Messrs R. M. Mainza and Company.

Mr. A.J. Shonga, Jr., S.C., and Mr. S.M. Lungu, both ofMessrs Shamwana and Company.

For the 2nd Respondent: - No Appearance

JUDGMENT

Chibomba, J.S, delivered the Judgment of the Court.

Cases referred to:

1. NFC Africa Mining PLC vs Techro Zambia Limited (2009) Z. R. 2392. Zambia Telecommunications Company Limited vs Muyawa Liuwa SCZ No.

16 of 20023. A. T. Tyetye Enterprises vs Vutiwe Yolamu, Lina Yolamu, Njeleka Yolamu

and Martha Mushipe Appeal No. 156/2010

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Materials referred to:

1. Supreme Court Act, Chapter 25 of the Laws of Zambia2. High Court Act, Chapter 27 of the Laws of Zambia3. Interpretations and General Provisions Act, Chapter 2 of the Laws ofZambia.

The Appellants appeal against the order of the High Court, at Lusaka,

dated 9th April, 2015 in which the learned Judge ordered that the

Appellants' application for interpleader stands dismissed as per his earlier

order of 30th January, 2015.

The history of this matter is that the 151 Respondent, a company

incorporated in Zimbabwe, sued the 2nd Respondent, a company

incorporated in Zambia, for breach of contract and for refund of the sum of

US$35,720.00 on account of the 2nd Respondent's failure to deliver part of

the maize purchased by the 15t Respondent.

The 2nd Respondent having not entered appearance, the 151

Respondent entered judgment in default of appearance and issued a Writ

of Fieri Facias, the fifa. The Sheriff of Zambia executed the fifa on the

matrimonial home of the Appellants and property was seized. The 2nd

Appellant was a director in the 2nd Respondent company while the 151

Appellant is a spouse of the 2nd Appellant. Following this execution, the

15lAppellant, on 2ih November, 2014, issued an interpleader Summons

and applied for stay of the sale of the seized property. The interpleader

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Summons was given a return date of 30th January, 2015. However, on 28th

November, 2015 the 1st Appellant filed a Notice of withdrawal of the

interpleader Summons.

On 30th January, 2015 the Appellants and their Advocates, as well as

the 1st Respondent did not attend Court. The learned Judge struck off the

interpleader Summons due to none attendance of the parties with liberty to

restore within 14 days and in default thereof, the interpleader would stand

dismissed.

On 11th March, 2015 the Sheriff of Zambia issued interpleader

Summons which was returnable on 9th April, 2015. When the matter came

up on that day, the learned Judge ruled that the application stood

dismissed pursuant to his earlier order of 30th January, 2015.

Dissatisfied with this decision by the learned Judge, the Appellants

appealed to this Court raising one Ground of Appeal in the Memorandum of

Appeal as follows:-

"1. That the learned trial Judge misdirected himself in law whenhe declined to hear the Interpleader Summons returnablebefore him on 9th April, 2015 and proceeded to make an Orderto the effect that the Application for Interpleader standsdismissed as per Order of the Court of 30th January, 2015 inthe face of the evidence that Interpleader Summons filed onthe 26th November, 2014 was withdrawn on 28th November,2014."

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When the Appeal was called for hearing, the learned Counsel for the

1st Respondent, Mr. Shonga, Jr., S.C., informed the Court that the 1st

Respondent had, on 24th August, 2015, filed a Notice of Preliminary

Objection pursuant to Rule 19 of the Supreme Court Rules (SCR),

Chapter 25 of the Laws of Zambia which he requested the Court to hear

and determine before proceeding to hear the Appeal. The grounds raised in

the Notice of Preliminary Objection are as follows:-

"1. Whether the Appeal is properly before this Court in view of theAppellant's failure to file the Record of Appeal and the Headsof Argument within 60 days from the date of Appeal.

2. Whether the Record of Appeal has been prepared incompliance with the law.

3. Whether the Appellants have locus standi to appeal againstthe Order of the Court below dated 9th April, 2015 in view of thefact that the applicant of the Interpleader Summons of 6th

March, 2015 was the Sheriff of Zambia."

Mr. Shonga, Jr., S.C., relied on pages 1-10 of the 1st Respondent's

Heads of Argument filed on 24th August, 2015. In support of ground one of

the Notice, it was submitted that in accordance with Rules 54 and 58 (5) of

the SCR, the Appellant's Appeal is not properly before this Court as the

Record of Appeal was not filed within 60 days of the date of filing the Notice

of Appeal. That however, Rules 54 and 58 (5) of the SCR are couched in a

mandatory manner as the word "shall" is used and consequently the

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lodging of the Record of Appeal on 1ih June, 2015, means that the Record

of Appeal was not lodged within 60 days as required by the Rules.

Reference was also made to Section 35 (a) of the Interpretations

and General Provisions Act, Chapter 2 of the Laws of Zambia, which

State Counsel argued, when read together with that Section, will show that

the Record of Appeal in this matter was filed out of time. Hence, that this

was in clear breach of Rule 54 of the SCR. Further that this breach is fatal

to the Appellants' Appeal. As authority, Mr. Shonga, Jr., S.C., cited the

case of 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 the

Court risk having their appeals being dismissed. He submitted that in that

case, this Court went on to dismiss the appeal. It was Mr. Shonga, Jr.,

S.C.'s further submission that the Appellants in the current case did not

seek leave to extend the time.

In augmenting the written arguments on ground one, Mr. Shonga, Jr.,

S.C., began by giving the chronological order of the events resulting into

this Appeal. We have referred to some of these events above. The sum

total of Mr. Shonga, Jr., S.C.'s oral submissions under ground one was that

the Appeal before us was incompetent because the Record of Appeal was

not filed within the 60 days prescribed by the Rules of this Court. He

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pointed out that the Record of Appeal was filed on 12th June, 2015 while

the Notice of Appeal was filed on 10th April, 2015 as evidenced by the

stamp of the Supreme Court Registry on the said documents. He also

pointed out that 60 days from 10th April, 2015 takes us to 8th June, 2015.

Mr. Shonga, Jr., S.C. went on to repeat the argument that no application to

extend the time within which to file the Record of Appeal was obtained.

In response to the arguments in the Appellants' Heads of Argument

that the Record of Appeal was filed within time, Mr. Shonga, Jr., S.C.,

referred us to the case of Zambia Telecommunications Company

Limited vs Muyawa Liuwa2cited and relied upon by the Appellants to

support their position that the Record of Appeal was filed within the

stipulated time. He pointed out that the Appellants' argument that the

Record of Appeal was filed within time was based on the second holding in

the above cited case which reads as follows:-

"(ii) In calculating the period in which the record of appeal is to belodged, Saturdays, Sundays and Public Holidays are excluded."

It was however, Mr. Shonga, Jr., S.C's position that the above quoted

holding is not supported by the body of the judgment of this Court. In Mr.

Shonga, Jr., S.C.,'s view this could only be attributed to a typing error or a

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phrasing error. In this respect, Mr. Shonga, Jr., S.C., referred us to page

68, of the judgment in question where we stated as follows:-

"In the instant case, the sole issue was whether the 60 days grantedwithin which to file the record of appeal excluded Saturdays,Sundays and public holidays. We are satisfied that in terms of Order2 rule 1 Ie) Saturdays and public holidays are excluded only whenthe limited time is less than six days. That rule on computation oftime states:- (Underlining is ours for emphasis)

"When the limited time is less than six days, the following days shallnot be reckoned as part of the time, namelv Saturdays and Sundaysand any public holidavs. "(Underlining is ours for emphasis)

Mr. Shonga, Jr., S.C., pointed out that holding number (ii) in the Law

Report sharply contradicts the main body of the judgment. And hence,

holding number (ii) cannot assist the Appellants in any way.

It was Mr. Shonga, Jr., S.C.,'s further submission that it will be

observed from the Appellants' Heads of Argument in Response to the

Notice of Preliminary Objection that holding number (ii) in the above cited

case was the only defence the Appellants had against the first ground of

the Notice of Preliminary Objections. His position was therefore, that the

Appeal was incompetent and it should be dismissed.

Mr. Shonga, Jr., S.C., also referred us to the case of A. T. Tyetye

Enterprises vs Vutiwe Yolamu, Lina Yolamu, Njeleka Yolamu and

Martha Mushipe3 in which the Appellants in that case had obtained leave

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to file the Record of Appeal out of time but did not file within the time

prescribed by the court as it was filed 82 days later. He pointed out that this

Court was swift to declare the record incompetent. He accordingly invited

us to take a similar position in the current case and swiftly declare the

Record incompetent and dismiss it.

As regards the second and third grounds in the Notice of Preliminary

objection, Mr. Shonga, Jr., S.C., wholly relied on the arguments in the

Respondent's Heads of Argument in support of the said grounds. The view

that we take of this Appeal is that it is not necessary for us to repeat those

arguments here, suffice to say that we have read them. In addition, the

reason for this step will become apparent later in our judgment.

In opposing the Notice of Preliminary Objection, the learned

Counsel for the Appellants, Mr. Mainza, relied on the Appellants' Heads of

Argument which he also augmented with oral submissions.

In response to ground one, it was contended in the Appellants' Heads

of Argument that the Record of Appeal was filed within 60 days from the

date of the Notice of Appeal. In support of the above argument, the case of

Zambia Telecommunications Company Limited vs Muyawa Liuwa6was

cited and in particular, holding number (ii) which the Appellants relied upon

to support their position that the Record of Appeal was filed within time.

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Holding number (ii) has been recast above. It was argued that in calculating

the period within which a Record of Appeal is to be lodged, Saturdays,

Sundays and public holidays are excluded. That as such, the Appeal in this

matter is competent.

In his oral submissions, Mr. Mainza submitted that as pointed out by

Mr. Shonga, Jr. S.C., the Appellants rely on holding number (ii) in the case

of Zambia Telecommunications Company Limited vs Muyawa Liuwa2

which he contended, is still good law as there has been no judgment of this

court departing from that holding. He, accordingly, urged us to dismiss

ground one of the Notice of Preliminary Objection because in his view, the

holding in that case is clear as Saturday, Sunday and public holidays are

not included in calculating the 60 days provided for filing of a Record of

Appeal.

When it was put to Counsel that holding number (ii) in the Law Report

was at variance with the main body of the judgment of this Court as pointed

out by Mr. Shonga, Jr., S.C., Mr. Mainza took the position that the errors

committed by the editors of the Zambia Law Report in question had

distorted the law. When it was again pointed to him that holding number (ii)

was in fact by the editorial team, Mr. Mainza put his response thus:-"When

reading the judgment from the top starting with the parties up to

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where it says "held", the holding part is a summary of what the court

decided". It was Mr. Mainza's further position that the problem that has

been created by the editorial team of Zambia Law Report has affected an

innocent Appellant because as lawyers, "We do not just refer to hard

copies of the judgment, most times we refer to reported cases." His

further view was that this Court should give guidance because this

unfortunate situation should not be allowed to negatively affect innocent

parties as the Zambia Law Report in question is "a court document" which

in some way, is misleading innocent parties who should not become

victims.

As observed above, we shall not sum up the arguments in response

to grounds two and three of the Notice of Preliminary Objection suffice to

restate that we have read them.

We have seriously considered the Respondent's Notice of

Preliminary Objection and the arguments put forward by Counsel for both

parties, both orally and in the Heads of Argument filed with particular

regard to ground one. This is because the issues raised in ground one of

the Preliminary Objection go to the heart of the Appeal and could, if upheld,

render the Appellants' entire Appeal redundant. It is also our firm view that

the central question raised in ground one of the Notice of Preliminary

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Objection is whether the Appeal is incompetently before us, on ground that

it was filed out of time.

The 1slRespondent has submitted that the Appellants were obliged by

Rule 54 of the SCR to lodge the Record of Appeal within 60 days of filing

the Notice of Appeal. Perusal of the Record of Appeal has shown that the

Appellants filed the Notice of Appeal and Memorandum of Appeal on the

10th April, 2015. The Appellants then proceeded to lodge the Record of

Appeal with the Heads of Argument on 1ih June, 2015. Clearly, the

Appellants exceeded the deadline by 2 days, in clear breach of Rule 54 of

the SCR. Rule 54 reads as follows:-

"Subject to any extension of time and to any order made under Rule12, the appellant shall within sixty days after filing notice of appeallodge the appeal by filing in the Registry five copies of the record ofappeal, paying the prescribed fee and lodging in Court the sum oftwo thousand fee units as security for the costs of theappeal."(Underlining is ours for emphasis.)

The Section uses the word "shall" which means that the Rule is

couched in mandatory terms. So failure to comply with it renders an

appellant's appeal incompetent.

It is also our firm view that holding number (ii) in the case of Zambia

Telecommunications Company Limited vs Muyawa Liuwa2 cited and

relied upon by the learned Counsel for the Appellants does not aid the

Appellants' case in any way because clearly, Saturdays, Sundays and

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public holidays are not included when calculating the 60 days period within

which a Record of Appeal shall be lodged from the date of filing of the

Notice of Appeal. We, therefore totally agree with Mr. Shonga, Jr., S.C.,

that holding number (ii) in the Law Report in question sharply contradicts

the main body of the judgment as clearly, the judgment of this Court starts

with "Sakala, J.S.". It is also clear that the error is attributed to the editorial

team and certainly not to this Court as that portion of the judgment is not at

all part of the Court's judgment.

It is also our firm view that some of the responses by Mr. Mainza

which we have recast above to the questions put by the Court to Counsel

clearly demonstrate that there was "piece-meal" reading of the judgment in

question which is a wrong way of comprehending a judgment. Otherwise,

we are at a loss as to how Counselor indeed, a litigant could not have

observed that the holding in question sharply contradicts the holding of the

Court in the judgment. Properly read, the judgment of this Court states and

makes it clear that Saturdays, Sundays and public holidays are not

excluded in computing the 60 days period for filing of the Record of Appeal

from the date of filing the Notice of Appeal as these days are only excluded

where the period stipulated is less than six days as provided in Section

35(d) of The Interpretations and General Provisions Act, Chapter 2 of

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the Laws of Zambia, as well as Order 2 (c) of the High Court Rules,

Chapter 27 of the Laws of Zambia. Computation of time is statutory. Had

Counsel taken the provisions of Section 35(d) of Chapter 2 as well as

Order 2 (a) of the High Court Rules into account, he could have noted that

those days are specifically excluded in computing the time for filing of a

Record of Appeal. He could also have seen that he was out of time so he

could have taken the initiative of filing an appropriate application to cure the

default.

We are also of the view that Counsel cannot successfully attribute the

editorial team's typographical error or phrase error to this Court.

We, therefore, find merit in ground one of the 1stRespondent's Notice

of Preliminary Objection as indeed, the Record of Appeal in this matter was

filed out of time. Hence, the Appeal is incompetent. By so holding, we are

fortified by our decision in NFC Africa Mining PLC vs Techro Zambia

Limited2 where we made it clear that the Rules of the Court are intended to

assist in the proper and orderly administration of justice and that as such,

they must be strictly followed. We also made it clear parties that fail to

adhere to the Rules of Court risk having their Appeals dismissed. In that

case, and as correctly observed by State Counsel Shonga, Jr., S.C., we

went on to dismiss the appeal for breach of the Rules of Court. Similarly, in

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incampetent because it was filed in breach af Rule 54 af the SCR as the

- .,,: ..._ .._~. -= -- ..-..~~ .~-=_ ---- ]14 -"'-~~~--~ ~;;;:;: ~~ ~

the cu~mt case, we order that the Appeal in que~ian be dismissed as it is- ~

Recard af Appeal was filed in excess af the 60 days stipulated far filing the

Recard af Appeal.We, are also. fartified by aur decisian in A. T. Tyetye

Enterprises vs Vutiwe Yolamu, Lina Yolamu, Njeleka Yolamu and

Martha Mushipe3 in which we dismissed the appeal because the recard af

appeal was filed aut of time.

Having dismissed this Appeal far incampetence, aur firm view is that

it is nat necessary far us to. cansider graunds twa and three af the Natice af

Preliminary Objectian as the graunds have become atiose.

Far the reasans given abave, the Appeal in this matter is dismissed

with casts to. the 15t Respondent to. be agreed and in default thereaf, to. be

taxed.

....._..~~~ •.••.•.......•.•.H. CHIBOMBA

SUPREME COURT JUDGE

............~~~~;~~~.~~:~:.....E. M. HAMAUNDUSUPREME COURT JUDGE

~::::-_",_.~.:;~£:..=.=~~:S.::-R. M. C. KAOMASUPREME COURT JUDGE