Nigel George Seabrook and Anor v Cathrine Hovstad Van Aardt ((CAZ/08/269/2024; CAZ/08/284/2024) (4 September 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Application No. 36/2025 HOLDEN AT NDOLA Consolidated Appeal No. 220 of 2024 (Civil Jurisdiction) (CAZ/08/269/2024 & CAZ/08/284/2024) BETWEEN: O~ -SEP 2025 NIGEL GEORGE SEABROOK 1 sr APPELLANT TURNER CONSTRUCTION LIMITED 2ND APPELLANT AND CATHRINE HOVSTAD VAN AARDT RESPONDENT CORAM: SIAVWAPA JP, CHASHI, CHISHIMBA, PATEL & CHEMBE, JJA On 19th August & 4th September 2025 For the 1st Appellant: Mr. M. Mbulo Mesdames Mukuka Mutale Legal Practitioners For the 2nd Appellant: No Appearance For the Respondent: Mr. M. Desai & Mr. L. Mwamba Messrs. Milan Mwamba & Associates RULING Patel, JA, delivered the Ruling of the Court Cases Referred To: 1. Zambia Revenue Authority v Professional Insurance Corporation Limited-SCZ Appeal No. 34 of 2017 2. Twampane Mining Co-operative Society vs E & M Storti Mining Limited {2011) ZLR vol 3, 67 3. Kidinson Mwandila and Yotam Phiri SCZ Judgment No.33 of 2013 {Appeal no. 182/2013 {2022) 4. Leopold Walford {Z) Limited v Unifreight -SCZ Judgment No. 23 of 1985 5. Zambia Revenue Authority v Jayesh Shah -SCZ Judgment No. 10 of 2001 6. Standard Chartered Bank {Z) Pie v John M.C. Banda- SCZ Appeal No. 94 of 2015 7. Southern Cross Motors Limited v Steven Maimbika -CAZ/08/102/2018 8. Joseph Lubasi v Agnes Mate - CAZ/08/470/2021 9. First Quantum Mining and Operations Limited v David Sendwe and Others - CAZ Appeal No. 22 of 2023 10. Zambia Revenue Authority v lsikando and 3,525 others -{2014) ZMSC 87. 11. The Republic of Botswana, Ministry of Works Transport and Communication, Rinceau design Consultants {sued as a firm previously trading as KZ Architects v Mitre Limited -SCZ Appeal No. 113 of 1995 12. Antonio Ventriglia & Another v Finsbury Investments Limited -SCZ Appeal No. 2 of 2019, 13. Owners of the Motor Vessel 'Lillian 51 v Caltex Oil {Kenya) Limited {1989) KLR. 19, 14. New Plast Industries Limited v The Commissioner of Lands and the Attorney General {2001) ZR. 51 R2 15. JCN Holdings Limited v Development Bank of Zambia (2013) 3 ZR 299 16. Mahesh Popat v Reshma Maheshbhai Popat -CAZ (Application) No. 69 of 2023 17. Mega Earth Movers Limited v Rapid Global Freight Limited- CAZ Appeal No. 193 of 2020 18. David Jokie Kasote v The People (1977) ZR 75 19. Mulenga Kachemba v Richard Sikazwe -CAZ Appeal No. 128/2020 20. Jonathan Van Blerk v The Attorney General & Others -SCZ Appeal No. 7 of 2020 21. Stanbic Bank Zambia Limited v Savenda Management Services Limited (2016) Z.L.R vol 3 p 478 22. Access Bank (Z) Limited v Group Five/Zcon Business Park Joint Venture (SCZ/8/52/2014) 23. Philip Mutantika v Chipungu- SCZ Appeal No. 94 of 2012 24. Access Bank (Zambia) Limited v Attorney General - 2018/CCZ/009 25. Barclays Bank Zambia Pie v Jeremiah Njuovu & 41 Others -SCZ Appeal No. 140 of 2015 Legislation Referred To: 1. The Court of Appeal Rules Statutory Instrument No. 65 of 2017 2. The Rules of the Supreme Court of England (White Book) 1999 Edition 3. The Supreme Court (Amendment) Rules, Statutory Instrument No. 26 of 2012 4. The Constitution of Zambia, Act No. 2 of 2016. Other Works Referred To: 1. Lord Reid, 'The Judge as Law Maker' (1972) S.P.T.L 22, 26 R3 1.0 INTRODUCTION 1.1 This is an appeal against the Judgement of Mr. Justice K. Chenda of 15th May 2024, in respect of a joint venture agreement ("JVA") for the development of a leasehold property known as subdivision L of Lot 2259/M, Ibex Hill, Lusaka ("Palm Grove"). 1.2 The Hon. Judge, in the lower Court dismissed the Appellants' claims which are the subject of the appeal before us. 1.3 We note at the outset that on 7th June 2024, the pt Appellant filed its appeal under cause number CAZ/08/269/2024 and on 14th June 2024, the 2nd Appellant also filed its appeal under cause number CAZ/08/284/2024, respectively. These matters were subsequently consolidated pursuant to a Consent Order dated 23rd January 2025, (The Consent Order) and the Consolidated Record of Appeal was thereafter filed on 24th February 2025. 1.4 The pt and 2nd Appellants filed their respective heads of argument on 24th February 2025. 1.5 The Respondent filed a Notice of Motion to raise a preliminary objection to the appeal on 24th April 2025. (The Motion). The pt and 2nd Appellants caused their opposing process to the Motion to be filed on 16th May and 10th June 2025 respectively. (The 1st and 2nd Appellant's opposition). The Respondent filed its combined reply on 9th July 2025. (The Respondent's combined reply). R4 1.6 The Respondent filed her heads of argument to the main appeal on 9th May 2025. 1.7 The nature of the Motion before us compels us to sit as an expanded Panel to reconcile the apparent varying positions espoused by the Court. For this reason, we will hear and determine the Motion first before hearing the main appeal. 1.8 The issues before us deal extensively with timelines as referred to above and compliance by the Parties to the Rules of Court and the effects thereof. 2.0 BACKGROUND 2.1 For ease of reference, the Parties will be referred to as they appear in this Court though it is noted that the Respondent is the Applicant and the two Appellants, the Respondents respectively in the Motion. 2.2 The 2nd Appellant (Plaintiff below) commenced an action in the lower Court against the Respondent (Defendant below) under cause number 2021/HPC/0130, by way of Writ of Summons and Statement of Claim on 16th March 2021, claiming the following reliefs: i. A declaration that the Joint Venture Agreement was binding on the Respondent; ii. Damages for breach of the Joint Venture Agreement; iii. Losses arising due to suspension of works in the sum of US$ 92, 683.00; iv. Works completed to date in the sum of US$ 167,070; RS v. Damages for loss of profit in the sum of US$ 367, 500.00; vi. Interest; vii. Costs; and viii. Any other relief that the court may deem fit. 2.3 The Lower Court delivered its Judgment, dismissing both of the Appellant's claims, which dismissal is now the subject of this appeal. 3.0 DECISION OF THE LOWER COURT 3.1 As noted in the introduction above, emanating from the filing of the Consent Order, the Respondent filed its Notice of Motion raising a jurisdictional issue which as a matter of necessity will need to be determined before we consider the merits of the appeal. For that reason, we have not restated the Judgment of the lower Court or the arguments of the Parties to the consolidated appeal. 4.0 THE APPEAL The ist Appellant's Appeal 4.1 Dissatisfied with the outcome in the lower Court, the 1st Appellant on 7th June 2024, filed his Notice and Memorandum of Appeal, under Cause number CAZ/08/269/2024 fronting three (3) grounds of appeal, namely: i. The Court below erred in law and fact when it held that the joint venture agreement ("JVA") was invalid and not binding on the parties; R6 ii. The Court below erred in law and fact when it held that, in the absence of a valid JVA, the parties had, on account of the evidence before Court, gone on to create a valid and binding verbal agreement separate from the JVA and proceeded to grant reliefs based on this finding; and iii. The Court below erred in law and fact when it proceeded to grant reliefs that were neither pleaded nor sought by the parties by virtue of its powers under section 13 of the High Court Act, Chapter 27 of the Laws of Zambia. The 2nd Appellant's Appeal 4.2 Equally dissatisfied with the outcome in the lower Court, the 2nd Appellant also filed its Notice and Memorandum of Appeal under Cause number CAZ/08/284/2024 on 14th June 2024, fronting the following three (3) grounds of appeal, namely; i. The Defendant not having executed the Joint Venture Agreement renders it ineffective and not binding not just on her but on any of the parties; ii. There is no basis to make a finding of breach of contract on the part of the Defendant iii. Under the Plaintiff's head for 'any other relief the Court shall deem fit, the Court deemed it fair and just to order, pursuant to Section 13 of the High Court Act, Chapter 27 of the Laws of Zambia that: a. The Plaintiff, Defendant and Third Party should explore the possibility of amicably fulfilling the verbal agreement over Palm Grove; R7 b. If after 6 months there has been no consensus reached on the modalities for fulfilment of the verbal agreement; c. Palm Grove for its subdivisions shall be valued to include a segregation of which component of its overall value is ascribed to the land and which to the developments made by the Plaintiff; d. Palm Grove shall thereafter be subdivided between the Defendant and Plaintiff in proportion to the value of the land alone (standing to the credit of the Defendant) and the value of the developments (being apportioned to the credit of the Plaintiff) and for avoidance of doubt, the Third Party's ownership claim in cause 2020 /HP/ 462 would be limited to the portion of Palm Grove that would remain connected to the Defendant; e. the valuation shall be done by a licensed valuation surveyor agreed upon by the parties or failing that appointed by the Valuation Surveyors Registration Board (or its successor body) at the request of any of the parties; and f. the cost of the valuation survey and any subdivision between Plaintiff and Defendant shall be borne equally by the parties. 5.0 THE 15r APPELLANT'S HEADS OF ARGUMENT R8 5.1 It has been noted that the 1st Appellant filed his Heads of Argument together with the consolidated Joint Record of Appeal on 24th February 2025. 6.0 THE APPELLANT'S HEADS OF ARGUMENT 2ND 6.1 These were filed on 24th February 2025. 7.0 THE RESPONDENT'S HEADS OF ARGUMENT 7.1 The Respondent's Heads of Argument were filed on 9th May 2025, after obtaining an Order of leave to file out of time. (emphasis is ours). 8.0 THE HEARING 8.1 We have noted that the Parties (in the Motion), have continued to refer to themselves as they a re cited in the ma in appeal. For the sake of consistency, we shall maintain the same position, though it is noted that the Applicant in the Motion, is the Respondent in the appeal. 8.2 Counsel Mwamba placed reliance on the process before the Court filed on 24th April 2025, as well as the combined reply. The thrust of Counsel's submission was centered on the issue of jurisdiction of the Court to hear the appeal for having breached the provisions of Order X rule 9 (9) of the Court of Appeal Rules (CAR). It was Counsel's argument, that without an application to move R9 the Court, its hands are tied. This was not an argument relating to the length of delay or the prejudice thereof to the Respondent, but simply an issue of the Court being divested of jurisdiction. 8.3 Counsel Mbulo placed reliance on the opposing process filed on 16th May 2025 and implored the Court to exercise its discretion and placed reliance on Order 2 Rule 2 of the Rules of the Supreme Court (RSC). It was his argument that an eight (8) day delay should not suffer the perils of a dismissal and that the appeal should be heard on its merits. 8.4 Counsel Mbulo, whilst conceding the delay in effecting service, referred to the explanatory notes in the said Order and invited us to act as though the Court had been moved. He canvassed several reasons why the Court ought to hear the appeal which we have considered. 8.5 Although there was no appearance for the 2nd Appellant, (the 2nd Respondent in the Motion), we have noted the arguments in opposition and will make reference to and deal with them as appropriate. 8.6 In reply, Counsel Mwamba reiterated the effect of the Court not having been moved, as rendering the appeal incompetent and prayed that the Motion succeed with costs. 9.0 BACKGROUND TO THE NOTICE OF MOTION RlO 9.1 As the Motion turns on the issue of compliance with procedural rules of this Court, it has been imperative to settle timelines clearly. By the time the Motion was filed, allocated a number, Application 36 of 2025, and opposed, the main consolidated Appeal No. 220 of 2024 had been listed for hearing at the Ndola Session of the Court on 19th August 2025. 9.2 The term 'Jurisdiction' was aptly described by the Supreme Court in the case of Zambia Revenue Authority v Professional Insurance Corporation Limited1 "as the gateway to the temple of justice, and without it there would be no basis for continuing with the proceedings." 10.0 THE CONSENT ORDER 10.1 It is common cause, and this has been stated in the introductory part of the Ruling, that this appeal was consolidated by a Consent Order of the Court acting under the hand of a single Judge granted on 23rd January 2025. (The Consent Order). 10.2 As a consequence of the Consent Order, the 2nd Appellant's record of appeal was withdrawn and both 1st and 2nd Appellants were directed to file a Consolidated Joint Record of Appeal within 30 days of the Consent Order. Rll 10.3 The 1st Appellant was directed to file his heads of argument with the joint record of appeal and the 2nd Appellant was directed to re-file its heads of argument along with the joint record of appeal. 10.4 The Respondent was also directed to withdraw her heads of argument and granted leave to file her heads of argument within 30 days of receipt of the 1st and 2nd Appellants joint record of appeal. 11.0 THE MOTION 11.1 In the Motion, the Respondent has canvassed the argument that the Court lacks jurisdiction to hear and determine the appeal in view of the fact that the Joint Record of Appeal and Appellants' respective heads of argument were served more than fourteen (14} days after they were filed into Court and without leave of Court. 11.2 The Motion deals with a procedural aspect of the Rules of this Court and interrogates whether willful non-compliance will strip the Court of jurisdiction to deal any further with the appeal. It is regrettable that almost nine (9) years after the establishment of the Court, we are still echoing the same warnings on the effects of non-compliance, as has all too often been pronounced on by our Court and the Supreme Court of Zambia. Decisions on the need to comply with the Rules of Court, rendered in the oft cited cases such as Twampane Mining Co-operative Society Limited v E & M Storti Mining Limited2 need no amplification. R12 11.3 In the supporting affidavit, the Respondent, through Counsel, has confirmed that the Law Firm of Mwamba & Milan took conduct of this matter on 9th April 2025 and upon a review of the Record, it was discovered that despite filing the Joint Record of Appeal and respective heads of argument on 24th February 2025 (as per the Consent Order), the 2nd Appellant only served the Joint Record of Appeal and its heads of argument on 18th March 2025 on the Respondents' previous Advocates. Attached to the affidavit of Luckson Mwamba is an exhibit marked 'LMl' as proof of service. 11.4 The 1st Appellant for its part only served its heads of argument on the previous Advocates, on 28th March 2025 and attached and marked 'LM2' is a copy of the letter of service. 11.5 The deponent avers that it conducted a search to establish whether the Appellants had obtained an Order extending time within which to serve the Joint Record of Appeal and the respective heads of argument and discovered that neither of the Appellants had obtained an Order for extension of time. 11.6 In its skeleton arguments filed in support of the Motion, the Respondent has invited the Court to look at the mandatory nature of Order X rule 9 (9)1 CAR on service of the Record of Appeal and the heads of argument. 11.7 The Respondent placed reliance on decisions of this Court as well as those of the Supreme Court to canvass the argument that compliance with mandatory rules of Court was cardinal in the fair and orderly dispensation of justice. R13 11.8 The Respondent has also argued that failure by the Appellants to obtain an Order for extension of time to serve heads of argument, out of time, divests the Court of the requisite jurisdiction and called for an immediate dismissal of the appeal. 12.0 THE 15r APPELLANT'S OPPOSITION 12.1 Counsel has conceded that the pt Appellant's Joint Record of Appeal and his heads of argument were served on the Respondent, 8 and 18 days respectively outside the prescribed period. 12.2 In an interesting turn of events, the deponent has averred that the Respondent has not been prejudiced by the delay, which delay, Counsel avers was neither deliberate nor indicative of any willful disregard for the authority and rules of the Court and purely occasioned by what was referred to as 'an internal administrative lapse in the Firm'. 12.3 The deponent has further averred that the delay does not go to the merits of the appeal which ought to be heard. Counsel also referred to a letter dated 13th May 2025, exhibited as 'BMCl,' which was sent to the Respondent's Counsel to amicably resolve what it refers to as a 'procedural irregularity by consent'. 12.4 In his skeleton arguments, whilst conceding the delay, the 1st Appellant has argued that the Respondent's Motion lacks merit and ought to be dismissed. It argues that the delay was neither inordinate nor intentional and that no tangible prejudice was caused. Further, the cited Rule is regulatory and not R14 mandatory and he has invited the Court to condone such procedural irregularities in the interest of justice. 12.5 The 1st Appellant has canvassed the principle that procedural rules, including timelines for service, are regulatory and not mandatory. In support of this principle, it placed reliance on Order 2 rule 12 oft~e Rules of the Supreme Court and maintains that the Supreme Court has determined that non-compliance with a regulatory rule is not necessarily fatal. He placed reliance on the decisions in the cases of Kidinson Mwandila and Yotam Phiri3 and Leopold Walford (Z) Limited v Unifreight4 . 12.6 The pt Appellant has referred to two decisions of this Court in which the appeals were not dismissed on grounds of late service of the Record of Appeal and heads of argument. We will revert to these later. 12.7 The pt Appellant also seeks to rely on the provision of Article 118 (2) (e)3 of the Constitution of Zambia, to canvas the argument that justice shall not be defeated by undue regard to procedural technicalities. He seeks also to canvass the position that there has been no prejudice or injustice occasioned to the Respondent. 12.8 It is the 1st Appellant's strong argument that procedural irregularities must be balanced by the exercise of judicial discretion to allow the matter to be heard on its merits. In support of this principle, reliance was placed on the cases of Zambia Revenue Authority v Jayesh Shah5 and Standard Chartered Bank (Z) Pie v John M.C. Banda6 . RlS 12.9 The Court is invited to lean towards substance over form and to deem service of the joint Record of Appeal and the ist Appellant's heads of argument as having been effected with leave of Court as was the position adopted in the case of Southern Cross Motors Limited v Steven Maimbika7 . 12.10 It is the Appellant's argument that the facts in casu can be distinguished from the Twampane decision, on the grounds of prejudice. He also attempted to distinguish the prejudice caused where the appeals were dismissed for late service, in the cases of Joseph Lubasi v Agnes Mate8 and First Quantum Mining and Operations Limited v David Sendwe and Others9 to the facts of the appeal in casu, where the Respondent has not shown any serious breach or prejudice. 12.11 Finally, the ist Appellant has invited the Court to consider the length of the delay and the absence of prejudice against the interest of justice and find that Order X rule 9 (9)1 of CAR is a regulatory provision. 13.0 THE 2ND APPELLANT'S OPPOSITION 13.1 The deponent of the affidavit in opposition on behalf of the 2nd Appellant, while conceding the delay in effecting service of its heads of argument, has maintained that service was effected within a reasonable timeframe and that the Respondent had since filed her heads of argument dated 9th May 2025. 13.2 Assuming an unusual trajectory, the deponent canvassed the argument that the Consent Order did not provide a timeline for service and that in the R16 circumstances, the Rules of the Court, were not applicable to the Appellants and thereby was neither in breach, nor expected to seek an Order for extension of time. The deponent placed reliance on the Consent Order exhibited and marked 'KNl'. 13.3 The 2nd Appellant in its skeleton arguments canvassed the effect of a Consent Order and argued that where Parties reach an agreement on certain procedural terms, such a Consent Order once granted, assumes the full force and effect of a Judgment or Order of the Court. It placed reliance on Order 42 rule SA (1)2 of the RSC and the decision of the Supreme Court in the case of Zambia Revenue Authority v lsikando and 3,525 others10 . 13.4 In continuing with this line of argument, reliance was placed on the function of 'service' as defined by Black's Law Dictionary to support the argument that once served, the Respondent was able to respond. 13.5 The 2nd Appellant repeated the arguments of the 1st Appellant that the delay was not fatal, as it was not a substantial delay and that no prejudice has been occasioned to the Respondent. It echoed the argument on the rule being regulatory and not mandatory and in support, relied on the decision in the case of The Republic of Botswana, Ministry of Works Transport and Communication, Rinceau design Consultants (sued as a firm previously trading as KZ Architects v Mitre Limited11 . 13.6 The 2nd Appellant appeared to canvass the argument that the Court can, in accordance with Order XIII rule 3 (3)1 of CAR, allow for extension of time within R17 which to comply with procedural steps and implores the Court to dismiss the Motion as being bereft of merit with costs. 14.0 THE RESPONDENT'S COMBINED REPLY 14.1 The deponent avers that the issue raised by the Motion is not procedural alone, but one that goes to jurisdiction of the Court to hear and determine the appeal. It is for this reason that the Respondent declined to enter into the proposed consent and placed reliance on its letter dated 15th May 2025 exhibited and marked 'LMl' to its combined affidavit in reply. 14.2 In its skeleton arguments in reply, the Respondent maintains that the issue being jurisdictional is not concerned with irregularity or procedural lapse and has nothing to do with the delay being inordinate or intentional. These matters, it is argued, are immaterial vis a vis the Court's jurisdiction. 14.3 The Respondent has also canvassed arguments on the effect of stare decisis and the effect of a later decision by the Court on the issue at hand. It has also argued that the issue being jurisdictional means the Court must pronounce itself on the Motion before considering the appeal. 15.0 OUR ANALYSIS AND REASONING 15.1 It has forcefully been argued that being a jurisdictional issue, the Court must deal with this before it considers the merits of the appeal. We have been referred to celebrated cases such as Antonio Ventriglia & Another v Finsbury R18 Investments Limited12 , Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Limited13 New Plast Industries Limited v The Commissioner of Lands , and the Attorney General14 and JCN Holdings Limited v Development Bank of Zambia15 . In the interest of saving judicial time, the issue of jurisdiction is well taken. 15.2 Moving to the substantive preliminary issue raised by the Motion, this is neither new nor raised for the first time in this Court. However, different decisions of the Court have yielded different positions. For avoidance of doubt, we state categorically that we will only refer to decisions of the Court and not to Rulings of the Hon Single Judges of the Court for obvious reasons. 15.3 The Respondent has argued that the pt and 2nd Appellant both served the Consolidated Record of Appeal and respective heads of argument out of the 14-day period as stipulated by Order X rule 9 (9) CAR and without an Order of the Court granting them an extension of time to effect service respectively. The timelines are not disputed. 15.4 Order X rule 9 (9) CAR provides as follows: "The Appellant shall, within fourteen days of filing the record of appeal together with heads of argument under subrule (8), 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." R19 15.5 In addressing our mind to the Motion, we shall consider the following issues: i. Is the Rule (Order X rule 9 (9)) mandatory or regulatory? ii. The alleged lack of prejudice suffered by the Respondent; iii. The provisions of Article 118 (2) (e) of the Constitution; iv. The significance of the Consent Order dated 23rd January 2025 viz the established timelines of the CAR. 15.6 In addressing the first sub-issue, we have considered the arguments of the Parties respectively as summarized in paragraphs 11 to 14 above. The Respondent, being the mover of the Motion, obviously canvasses the argument that the rule on service is mandatory, and that breach of it shall result in the unenviable position of the appeal being dismissed. Both the Appellants have espoused the position, (whilst conceding the delay), that the said Rule is regulatory and breach of it is not fatal and cannot automatically warrant the dismissal of the appeal. The 1st Appellant places premium on Order 2 Rule 1 RSC,2 to canvass the argument, that failure (to serve within time) constituted an irregularity, whose breach could be rectified in the discretion of the Court. 15.7 The Appellants placed reliance on a decision of the Supreme Court in the case of Kidinson Mwandila and Yotam Phiri. They also relied on the case of Leopold Walford (Z) Limited v Unifreight to support the argument that non-compliance with a regulatory rule is not always fatal. The Supreme Court in the latter case stated as follows: R20 " .... In accepting this argument, we wish to add that, where there has been a breach of a regulatory rule, such breach will not always be fatal as much will depend upon the nature of the breach and the stage of proceedings reached. This therefore means that, as a general rule, breach of a regulatory rule is curable." 15.8 In the matter of Mahesh Popat v Reshma Maheshbhai Popat16 , a case which is on all fours with the facts in casu, this Court declined to grant the Respondent's application to dismiss the appeal on the ground that the record of appeal and heads of argument were served twenty-five (25) days out of time. In that Ruling, we stated at paragraphs 35 to 39 as follows: "Coming to the service of the record of appeal and grounds of appeal, Order X Rule 9(9) of the Court of Appeal Rules, states that the appellant shall, within fourteen days of filing the record of appeal together with heads of argument, serve a copy of each one of them on each party. In our view, the provision is a regulatory rule and accordingly the appellant's breach of it was not fatal and is thus curable. This is a position we took in the case of Southern Cross Motors v. Steven Maimbika, which we still maintain. In arriving at that conclusion in this case, we have additionally considered the length of the delay together with the stage of the proceedings, as guided in the case of Leopold Walford (Z} Limited v. Unifreight. R21 The record of appeal and heads of arguments were served after 25 days and not within 14 days of their being filed. In our view the delay was not lengthy. In light of that, it therefore follows that the respondent's request to dismiss the appeal on that ground is unsuccessful." 15.9 We are alive to the fact that the Ruling of the Court in the Mahesh Popat case was delivered on 21st March 2024. We have also noted that the reference of the Court in the Mahesh Popat case, on the cited case of Southern Cross Motors v Steven Maimbika may have been inadvertent, as that was a decision of a single Judge of the Court and was a Ruling rendered on a different Order of the Rules. Further, and in our extensive research into the matter, we have come across another decision of the Court rendered in the case of Mega Earth Movers Limited v Rapid Global Freight Limited17 delivered on 25th April 2023, in respect of a Motion also filed by the Respondent for breach of Order X rule 9 (9) CAR. In that case we stated at paragraphs 5.9 and 5.10 as follows: "Further, having fallen out of time, the Appellant failed to apply for an extension of time as provided for by order XIII rule 3 of the Court of Appeal Rules. In essence therefore, the service effected on 14th June 2022, is null and void for want of a Court order for extension of time within which to serve the Record of Appeal and heads of argument." R22 15.10 In the Mega Earth Movers case, we upheld the Motion and dismissed the appeal. 15.11 In our recent decision, delivered on 20th February 2025, in the cited case of First Quantum Mining and Operations v David Sendwe and Others, we stated that failure to serve a Record of Appeal and Heads of Arguments within the 14 -day stipulated period prescribed by Order X rule 9 (9), without an Order for extension of time, divests the Court of the requisite jurisdiction to hear and determine the appeal. In the FQM v David Sendwe decision, we noted as follows: 11The next issue to resolve is the one involving service of the record of appeal after the 14 days period. Order 10 rule 9, sub rule 9 of the Court of Appeal Rules clearly provides for service of the record of appeal, together with the heads of argument, on the Respondents within 14 days from the date off iling. That Order uses the word 11shall" in its provisions, which makes its observance mandatory. The argument by the Appellant that there is no provision allowing for a dismissal for want of service, in our view, flies in the teeth of the above guidance. It would be absurd to assume but failure to adhere to a mandatory provision could not be visited by sanctions of dismissal of the appeal. Thus effecting service on the Respondents, as was done herein, without leave of court to extend time for such service was contrary to the Rules of this Court and makes the appeal incompetent before us. R23 Having reviewed the law and authorities, we conclude that the Appellant's appeal is incompetently before this Court due to the failure to serve the Record of Appeal and Heads of Argument within the stipulated 14-day period and for failure to obtain leave to serve out of time. As such, we have no jurisdiction to hear this appeal. The preliminary issue succeeds and the appeal is dismissed for want of jurisdiction." 15.12 With due adherence to the doctrine of stare decisis, and in our considered view, we are of the settled view that the provisions of Order X rule 9 {9) are mandatory and not regulatory. We are also alive to the fact that a Court is bound by its most recent decision on a point in contention. This principle was clearly settled by the Supreme Court in the case of David Jokie Kasote v The People18 • 15.13 As a Court, we have also noted that the correct position is manifested by the latest decision of the Court. In the case of Mulenga Kachemba v Richard Sikazwe19 , we recognized our duty to establish clear precedents for avoidance of doubt. 15.14 Before we conclude on the issue of regulatory viz mandatory nature of the Rule, we would be failing in our duty to be consistent and predictable, as guided by the Supreme Court in the case of Jonathan Van Blerk v The Attorney General & Others20 , if in attempting to reconcile different positions espoused by the Court, we leave the issue of length of delay, or the apparent R24 lack of prejudice, hanging for possible different interpretations, hinged on judicial discretion. 15.15 In the Mahesh Popat case, we considered the length of the delay as a mitigating factor and noted that service effected 25 days out of time, was not lengthy. In the Mega Earth Movers decision, the delay to effect service was 1 year and 9 months. In the FQM v David Sendwe decision, the delay in serving the Record of Appeal was for a period of almost 2 years. However, our considered view on the period of delay, is that it is immaterial to the issue of jurisdiction of the Court. It is therefore irrelevant to argue that the Respondent has not been prejudiced or has in fact been able to file her heads of argument. Service, effected outside of the mandatory Rules of Court, without seeking an Order of extension from the Court in accordance with Order XIII Rule 3 of CAR, will not be condoned under the guise of judicial discretion and the apparent lack of prejudice to the Respondent. 15.16 We have also had occasion to review a Ruling of the full Court in the case of Stanbic Bank Zambia Limited v Savenda Management Services Limited21 • Although the Ruling was delivered early in the inception of the Court, Counsel are urged to review the said Ruling which provides guidance on when Rules of Court are mandatory, and those where discretion is reposed in the Court. 15.17 A detailed study of the Ruling above clearly guides that Order XIII of the Court of Appeal Rules provides for application for extension of time. Order XIII Rule 3, specifically confers discretion on the Court to extend time for various R25 applications including taking any step in connection with an appeal. The said Ruling in the Stanbic Bank v Savenda matter, interrogates the decisions of the Superior Courts when faced with various applications. The Ruling clearly echoes the position that each application will be considered on its own facts. We said at page 506: "It is thus inappropriate to uplift the ratio decidendi of the Supreme Court in one case with its own peculiar facts dealing with a specific rule and apply it to all cases in a regimented manner regardless of the applicable rule/rules". 15.18 In the cited case of Access Bank (Z) Limited v Group Five/ZCon Business Park Joint Venture22 the Supreme Court, though dealing with the issue of Rule 68 (2), at page J27, with regard to discretion, noted as follows: ". .. 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 applicant had rightly submitted, this invariably implicates the exercise of judicial discretion. Since facts of two cases are never always the same, a court cannot be bound by a previous decision to exercise discretion in a regimented way because that would be, as it were, putting an end to discretion." In the Access Bank case, the Supreme Court, while accepting the argument that not all breaches of procedural rules would suffer the same R26 consequences, noted the distinction between the procedural rules and those that were mandatory. 15.19 In the Mutantika and Anor v Kenneth Chipungu23 decision, the Supreme Court dismissed the appeal for violation of Rule 58 {5) and Rule 70 {1)3 of the Rules of the Supreme Court of Zambia, on the ground that the stated Rules by the use of the word, "shall', being couched in a mandatory manner, did not give the Court any discretionary power. 15.20 This is therefore not a new or strange position adopted by the Superior Courts. It is the culture of compliance and discipline that needs to be inculcated. Laxity in the application of Rules under the guise of doing justice, will aid one side while unfairly harming the Party which endeavors to comply with the Rules. The Supreme Court, in the cited case of Access Bank {Z) Limited v Group Five/Zcon Business Park Joint Venture on the issue of timelines, had this to say on page J24: " .... rules of procedure and timelines serve to make the process of adjudication fair, just, certain and even handed .... " 15.21 In the Twampane Mining decision, the Supreme Court on the issue of compliance with rules, stated as follows: 11/n this regard we cannot over emphasize the importance of adhering to Rules of Court as this is intended to ensure that matters are heard in an orderly and expeditious manner. Allowing this appeal would be R27 tantamount to us encouraging laxity and non-observance of rules by practitioners and litigants in general. We repeat what we said in Nkhuwa v Lusaka Tyre Services Limited -SCZ Judgment No. 20 of 2011 that those who choose to ignore Rules of Court will do so at their own peril. All the three grounds of appeal, therefore, fail". 15.22 Arguments relating to prejudice suffered, (or lack thereof) and or the length of delay, are arguments that ought to be canvassed within an application for an Order for extension of time to effect service, as such issues lie within the discretion of the single Judge of the Court. We also note that the alleged lack of prejudice suffered by the Respondent, by her ability to file her heads of argument on 9th May 2025, was predicated on the conscientious effort of Counsel to obtain leave to file heads of argument out of time, rather than await a decision on the Motion. Should such proactive approach be met with a casual submission that there was no prejudice suffered? We think not. 15.23 Moving to the constitutional argument, canvassed by the Appellants, the law on this is clear and settled. The Supreme Court in the cited case of Access Bank held at page J33 as follows: "In conclusion, we are mindful that the issue regarding Article 118 (2) (e) of the Constitution of Zambia was raised in passing by Mr. Silwamba SC and was not part of his written arguments before us. We do not intend to engage in anything resembling interpretation of the Constitution in this Judgment. All we can say is that the Constitution never meant to oust R28 the obligations of litigants to comply with procedural imperatives as they seek justice from the Courts." 15.24 The Constitutional Court in the case of Access Bank (Zambia) Limited v Attorney General24 also echoed the principle that a party that opts to flout rules, does so at its own peril and cannot thereafter seek solace in the provisions of Article 118 {2) (e) of the Constitution4 . 15.25 Escalating our enquiry to the fourth sub issue identified above, the 2nd Appellant has purported to advance the argument that the effect of the Consent Order of 23rd January 2025 being silent as to procedural timelines, and being an Order by Consent, meant by necessary implication that the Appellants were not obliged to follow the provisions of the.Rules with effect to the timelines. The 2nd Appellant brazenly embraces this position and argues that the Motion of the Respondent should fail for that reason alone. 15.26 We must immediately put this argument to bed. It is inconceivable that a Court Order, albeit entered by consent, alleviated the obligations incumbent upon the Parties to proceed with their matter in the manner prescribed by the Rules. Even if this were not as elementary as we believe it to be, the principle was clearly established and settled beyond doubt by the Supreme Court in the case of Barclays Bank Zambia Pie v Jeremiah Njovu & 41 Others25 . 15.27 In that case, the Supreme Court in its Ruling granting leave, did not set out the period within which the appellants ought to have filed its record of appeal R29 and heads of argument. The appellant filed its requisite documents outside the period provided by the Supreme Court Rules and the respondent immediately raised a preliminary objection. The Supreme Court concluded in no uncertain terms, in response to the appellant's argument that the timelines were inapplicable to it, having being allowed to withdraw and refile the record as follows: "For the avoidance of doubt, we must restate that the appeal risked being dismissed for failure to comply with rule 58(5). The ruling we made was thus prophylactic. It was confined to the appellant's specific request to withdraw and refile the record of appeal. Beyond that the appellant was back in the realm of rules of procedure including rules 12 and 54, and had to comply, like any other appellant who is late in meeting prescribed time lines. It would indeed be naive to assume that our ruling allowing the appellant to withdraw and properly file the appeal documents in compliance with rule 58 (5) signified a seachange in our insistence that rules of procedure ought to be followed.' (Emphasis is ours). 15.28 We can do no better than echo the above to serve as a clear direction to litigants who opt to flout the Rules of Court that they do so at their own peril. Litigation is not for the faint-hearted. With reference to the 2nd Appellant's argument in paragraph 13 above, it is foolhardy to advance an argument which defeats logic and justice. It is also foolhardy to ask the Court to deem service as though properly effected without moving the Court to extend time on sufficient reasons being advanced. R30 15.29 In light of the above, it is evident that Consent Orders, no matter how broadly or narrowly they are drawn, cannot be interpreted as exemptions from established procedural requirements. Parties remain duty-bound to adhere strictly to the timelines and mandates of the Rules, irrespective of any silence or perceived latitude in the language of the Order. 15.30 The Courts, as guardians of due process, have consistently underscored the importance of certainty, predictability, and uniformity in litigation. To permit Parties to circumvent procedural imperatives, under the guise of consent would not only erode the integrity of the judicial process but also foster uncertainty and inequality among litigants. We must also note that the position espoused by the Respondent to not consent to the late service, is the correct position. It is trite that Parties cannot, by consent, confer jurisdiction once it is lost, as was the case in casu. 15.31 Accordingly, the arguments advanced by the 2nd Appellant must fail. The procedural framework is not a matter of mere formality, but a fundamental aspect of the administration of justice. Deviation from such established norms, without leave of Court, cannot be sanctioned nor condoned. We reject this argument in totality. 15.32 Having settled the issues within the Notice of Motion, we arrive at the unenviable task of putting procedure above merit, as to hold otherwise, would reward the indolent. It has already been noted that the Respondent, having promptly filed its objection to the appeal, (after obtaining leave to do R31 so out of time), by way of the Notice of Motion, took the pro-active step of applying for and obtaining an Order of leave to file its heads of argument. (see paragraphs 7.1 and 9.1 above). Should we then hold that it did not suffer any prejudice and reward the Appellants with a mere slap on the wrist? We think not. 15.33 By way of conclusion, we echo the words of Lord Reid, who in a lecture delivered more than 50 years ago, in 1972, described the tension felt by a Judge in the process of identifying, developing and applying the law. He noted: "People want two inconsistent things; that the Jaw shall be certain, and that it shall be just and shall move with the times. It is our business to keep both objectives in view. Rigid adherence to precedent will not do. And paying lip service to precedent while admitting fine distinctions gives us the worst of both worlds. On the other hand, too much flexibility leads to intolerable uncertainty." 15.34 In conclusion, the jurisprudence of both the Supreme Court and the Court of Appeal underscores a steadfast commitment to the enforcement of procedural rules and timelines. This approach serves not only the interests of justice but also the orderly administration of cases within the judicial hierarchy. The consistent message is that deviation from established rules whether by oversight, consent, or appeals to discretion, invites adverse consequences and undermines the predictability and fairness that the court R32 system strives to uphold. Therefore, strict compliance with the rules is not a mere technicality but a fundamental requirement that safeguards the integrity of the adjudicative process. 15.35 We also note that theist Appellant had obtained an ex parte Order of Stay of Execution granted by a single Judge of the Court on 23rd June 2025 and which was returnable on 7th August 2025. The learned single Judge, thereafter, referred the application to the full bench hearing the appeal. 15.36 For completeness, the ex parte Order of Stay stands discharged. 15.37 The Motion to raise preliminary objection to the appeal succeeds. The Court lacks jurisdiction to determine the appeal on its merits and the same is dismissed with costs to the Respondent. j M. J. SIAVWAPA JUDGE PRESIDENT ~ 9 ....... J. CHASHI F.M. CHISHIMBA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE A.N. PATEL S.C. Y. CHEMBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE R33