Proximity Engineering and Mining Limited Paulgil Cheick Enterprises Limited (Appeal No. 170 of 2022) (13 June 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 170 of 2022 HOLDEN AT KABWE 1 3 JUN 2024 ( Civi I Jurisdiction) BETWEEN: PROXIMITY ENGINEERING AND MINING LIMITED APPELLANT AND PAULGIL CHEICK ENTERPRISES LIMITED RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA & PATEL, JJA On 21 st May & 13 th June 2024 For the Appellant: Mr. W. Mubanga S.C. & Mr. M. Mubanga Messrs. Chilupe & Permanent Chambers For the Respondent: No Appearance Messrs. lven Mulenga & Co. JUDGMENT Patel, JA, delivered the Judgment of the Court. J1 Cases Referred to: 1. Khalid Mohamed v The Attorney- General (1982) ZR 49 2. Aristogerasmos Vangelatos and Another v Metro Investments Limited and 3 Others SCZ No.34 of 2006. 3. Bimal Thalia v Access Finance Service Limited- CAZ Appeal No. 101/2020 4. Mwampole Brighton Kashawindo v Crawford Mwiinga SCZ/8/22/2021. 5. Jacob Titus Chiluba v The Attorney General Appeal No 125 of 2002 6. Savenda Management Services Limited v Stanbic Bank Limited (Selected Judgment SCZ No. 10 of 2018). 7. G4S Secure Solutions Zambia Limited v Lupupa Kabezya Lewis -SCZ Appeal No. 170 of 2015 8. Shilling Bob Zinka V The Attorney General (1990-1992) ZR 73 9. Hinckley and South Leicestershire Permanent Building Society v Freeman (1940) 4 All ER 2112 10. Post Newspapers and others vs CBU Council and Others -SCZ Appeal No. 84 of 1997 11. Access Bank (Z) Limited vs Group Five/ZCon Business Park joint Venture SCZ/8/52/2014 12. Nkhata and Others v The Attorney General (1966) ZR 124 (CA). J2 Legislation & Rules referred to: 1. The Mines and Minerals Development Act No. 11 of 2015 2. The High Court Act, Volume 3, Chapter 27 of the Laws of Zambia. 3. The Constitution of Zambia Act No. 2 of 2016 4. The High Court (Amendment) Rules, Statutory Instrument No. 58 of 2020 5. The Court of Appeal Rules 5.1. No. 65 of 2016 Other Texts and Materials referred to: 1. Practitioners Guide for Courts and Tribunals, 2011 Edition 1.0 INTRODUCTION 1.1 This is an appeal by the Appellant, (the Plaintiff in the court below) against the Judgment of Pengele E. J, delivered on 6 th December 2021 dismissing the claims of the Plaintiff and upholding the counterclaim of the Defendant. 1.2 The appeal arises out of contested issues of ownership of land, under a mining license. The Appellant, having been unsuccessful in its claims, has assailed the Judgment of the lower court and raised three grounds of appeal. 1.3 The Appellant, in our considered opinion, appears to blow hot and cold at the same time. It is noted that the Appellant, being the Plaintiff in the Court below, now seeks to resile from the Judgment, on the principle of jurisdiction, to argue the position that the matter ought not to have been determined by the lower court at all. J3 1.4 Further, and what appears to be grounds in the alternative, the Appellant has mounted its arguments based on procedural unfairness by the lower Court, which declined an application to adjourn to allow the Appellant to call its witnesses. 2.0 BACKGROUND 2.1 For the purposes of this section, and the next, we will refer to the Appellant and Respondent, as Plaintiff and Defendant respectively, as they were in the Court below. th 2.2 On 26 August 2019, the Plaintiff, instituted proceedings against the Defendant, seeking the following reliefs: i. An Order of injunction restraining the Defendant from occupying Plot 278 aforesaid and carrying out any mining activities thereon. ii. Damages iii. Further and other reliefs as the Court may deem fit iv. Costs 2.3 In its statement of claim, the Plaintiff contends that it is the holder of a small-scale gemstone licence No. 16719-HQ-SGL over Plots 277 and 278 in Lufwanyama district in the Copperbelt Province of the Republic of Zambia. th 2.4 It also contends that its mining licence was granted on 15 March 2013. 2.5 The Plaintiff also claims that the Defendant has denied it access to Plot 278 claiming that it also has a mining licence over the same plot. J4 2.6 The Plaintiff has further pleaded that the Permanent Secretary of the Ministry of Mines and Mineral Development (MMMD} clarified, in its letter th of 24 July 2018, that the Defendant had no claim over Plot 278, which the Defendant has ignored. 2.7 In what appears to be a poorly prepared Record of Appeal, (RoA) the defence by the Defendant is not shown, although there is noted a th conditional Memorandum of Appearance dated 13 September 2019 seen at page 45 of the Record of Appeal. Again, it is noted, that the Defendant's application to set aside Writ and Statement of Claim for irregularity is not on record, neither is the Plaintiff's application in support of an injunction, if at all the same was ever filed. 3.0 DECISION OF THE COURT BELOW th 3.1 On 6 December 2021, the lower court delivered its Judgment, the subject of this Appeal, dismissing the claims of the Plaintiff and upholding the counter claim of the Defendant. 3.2 The learned Judge considered the testimonies from both parties and the submissions of counsel. The learned Judge also took time to attentively examine the evidence of the witnesses and all documents relied on by the parties. 3.3 Having reviewed the evidence on record, the learned Judge was inclined to th find and hold that the Plaintiff's licence was issued on 25 February 2015, which he stated was clear from the licence itself. JS 3.4 The learned Judge stated that the question for determination, was, whether the Plaintiffs licence, could be considered, to have been issued earlier, than that of the Defendant, simply because it contains an endorsement date of 13 th March 2013, and it was indicated to run from 15th March 2013. The learned Judge first analysed the letter of grant of the licence for the Defendant and the Defendant's licence itself, before reverting to the question of which of the two was issued earlier. 3.5 The learned Judge had no hesitation in finding, that the Plaintiff was not granted Plot 278, in the letter of grant of licence from the Ministry of Mines and Minerals Development. Further, the learned Judge was inclined to find and hold that the Defendant's licence, was issued earlier than that of the Plaintiff. The learned Judge agreed with the Defendant that it raises a curious suspicion of irregularity that the Plaintiff's letter of appeal was th received by the Ministry of Mines and Minerals Development on 15 March 2013, but the Plaintiff's licence contained an endorsement of th th registration of 13 March 2013, and an effective date of 15 March 2013. 3.6 The learned Judge considered the Mines and Minerals Development Act 1 (hereinafter referred to as the Act) and found, that the Director and the Permanent Secretary, do not have any powers to cancel, terminate or suspend a mining licence, once it has been issued. The learned Judge referred to Section 5 (6) of the Act, which provides that: "the Director of Mining Cadastre shall be responsible for the administration of mining rights and mineral processing licences." J6 3.7 The learned Judge placed further reliance on Section 72 of the Act which contains detailed prerequisite procedures for suspension or revocation of a mining or non-mining right. 3.8 The learned Judge found that the Permanent Secretary, and the Director of Mining Cadastre Department, did not have powers to suspend, cancel, vary or in any other way, alter the licence that had been issued to the Defendant. The learned Judge further held that the purported exercise of such powers, by the Permanent Secretary and the Director, had absolutely no legal effect on the Defendant's licence. 3.9 Having considered the above, the learned Judge found that the Plaintiff had failed to prove its case on a balance of probabilities. Conversely, he was satisfied that the Defendant had proved its counter-claim on a balance of probabilities and referred to the case of Khalid Mohamed v The Attorney General1. 3.10 Ultimately, the learned judge arrived at the conclusion that the Plaintiff's action had no merit and dismissed it. He found merit in the Defendant's counterclaim and declared that the Defendant's Mining Licence Number 17649-HQ-SGML was valid for Plot No. 278 and Plot No. 371. Further, the learned Judge declared, that the purported cancellation of the said licence of the Defendant, by the Director of Mining Cadastre Department and the Permanent Secretary, of the Ministry of Mines was null and void as they did not have power under the Act to cancel the licence. J7 4.0 THE APPEAL 4.1 Aggrieved with the Judgment of the lower Court, the Appellant filed a Notice of Appeal and Memorandum of Appeal on 10th May 2022, advancing three (3) grounds of appeal: i. The Court below erred in law and fact when it proceeded to issue a th final Judgment on 6 December 2021 in contravention of Section 96 and 97 Act No. 11 of 2015 where it lacked jurisdiction on the basis of the aforesaid Act. ii. The lower Court erred in law and fact and fell in grave error when it failed to uphold substantial Justice by refusing to give an opportunity to the Appellant to call its witnesses, which resulted in the parties failing to conduct full trial in contravention with the Zambian Constitution as read together with Section 27(1) of Chapter 27 of the Laws of Zambia. iii. That the Trial Court misdirected itself and fell in grave error when it failed to realize the significance of the evidence of PWl in relation to the documents on pages 2, 3, 8, 9 - 10, 11, 12, 13, 14, 15 - 16, 18, 19 - 20, 32, 43, 36 - 3 7 and 49 of the Appellant's Bundle of Documents th dated the 8 day of April, 2019. 5.0 APPELLANTS' ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 We have duly considered and appreciated the Appellants' Heads of Argument filed on 4th August 2022. J8 5.2 As it relates to ground one, it is the Appellant's submission, that the learned Judge in the court below had no jurisdiction to hear and determine this matter as this was the conflict with Section 96 and 97 of the Act1. 5.3 It was its submission that under the circumstances, what the Judge did in the Court below, was to circumvent the due process under Sections 97, 98 and 99 of the Act and appears to have exercised powers under Section 100 of the Act,1 without waiting for a decision from the Tribunal being referred to him. 5.4 It was submitted that a decision of the tribunal, can only go to the High Court, by way of an appeal and not otherwise. It was argued that the Court below lacked jurisdiction to deal with the matter which came before it and placed reliance on the case of Aristogerasmos Vangelatos and Another v Metro Investments limited and 3 Others • 5.5 It was its submission that the Court below restricted itself by isolating the provisions of Section 96 and 97 of the Act,1 by only concerning itself with the issues brought before it, and completely ignored that it had no jurisdiction to proceed in hearing and determining the matter in casu, and referred to the cases of Bimal Thalia (Bimal Thaker) v Access Finance Service limited3 and Mwampole Brighton Kashawindo v Crawford Mwiinga • 5.6 As it relates to ground two, it is the Appellant's submission that the Judge's refusal in the Court below, to allow the witnesses to be heard, deprived the Court, of such material evidence, which was already before it in the Bundle J9 of Documents on Pages 140 to 190 of the Record of Appeal. It was further submitted that as a result, the Court missed an opportunity, to benefit from the evidence the particular witnesses could have adduced to the Court, in the interest of justice. 5. 7 The Appellant referred to the provisions of Section 27 of the High Court Act,2 which it submits, gave the Court below, authority to call witnesses at any stage, even by its own motion, but the said lower Court totally ignored its power to call the witnesses by refusing the Appellant to call them. 5.8 It was the Appellant's submission, that the trial Judge failed to serve the interest of justice, by not weighing the consequences of denying the adjournment, when he pointed out the delay of the matter as shown in the court proceedings appearing on page 251 of the Record of Appeal. Reliance was placed on the cases of Jacob Titus Chiluba v The Attorney General 5 and Savenda Management Services limited v Stanbic Bank limited 6 . 5.9 It was further submitted that since the Judge in the Court below refused to make an order of adjournment to call the witness in question, he did not exercise his discretion under Sections 13 and 27 of the High Court Act,2 which he ought to have done, in the interest of justice, as he had inherent power to do so and had material before him. 5.10 In relation to ground 3, the Appellant submitted that a critical analysis required by the courts could not have been achieved in the absence of the Judge in the lower court moving on his own or allowing the Appellant's application for an adjournment. no 5.11 It is its submission, that contrary to what is cited and guided in "writing of Judgments at page JlSO in the Practitioners Guide for Courts and Tribunals, 2011 Edition at page 491 the decision by the Judge, in the Court below, ", did not show that the Judge actively wrestled with the Appellant's claim and argument and could therefore not have made a scholarly decision based on his own reason and logic. 5.12 The Appellant relied on a plethora of authorities and reiterated its argument, that the Judge of the lower Court, could have taken advantage by assessing, and evaluating the evidence before him, which he should have considered, by seeing and hearing the witnesses in order to derive maximum advantage, in the interest of justice. 6.0 RESPONDENT'S HEAD OF ARGUMENT 6.1 The Respondent did not file any heads of argument and neither was it represented at the hearing. 7.0 THE HEARING 7.1 At the hearing, State Counsel, relied on the Record of Appeal and the heads th of argument filed on 4 August 2022. It was his submission that the ground on jurisdiction, which he referred to as the 'mother ground' was adequately canvassed in the arguments and placed reliance on it. He also submitted that if the argument on jurisdiction failed, he referred to the other grounds of appeal which had been argued. He invited the Court to uphold the appeal on the ground of jurisdiction, and invited us to send the matter back to the Ministry of Mines for determination. Jll 8.0 OUR DECISION 8.1 We have carefully considered the grounds of appeal reproduced in paragraph 4 above, the impugned Judgment, and the arguments and submissions of the Parties. 8.2 We shall start with the first ground of appeal, which essentially challenges the jurisdiction of the Court in having proceeded to hear the matter in the first place. We have not lost sight of the fact that the Appellant was in fact the Plaintiff in the lower court, and the initiator of the Action. 8.3 The Apex Court in several celebrated authorities, and more recently in its Ruling, delivered in the case of Mwampole Brighton Kasawindo v Crawford 4, Mwiinga stated with regard to jurisdiction: "The importance of determining this question before any other is that jurisdiction goes to the root of a matter. In this instance, the question is whether a Court is clothed with the requisite power or authority to entertain a matter before it and indeed any other ancillary matter that may arise therefrom. 11 8.4 We have also noted that the issue in the lower Court, centered on the dispute in relation to who between the Appellant and the Respondent held the Mining License over Plot 278 Lufwanyama District. 8.5 The Appellant has placed reliance on sections 96 and 97 of the Act,1 to argue that the lower court had no jurisdiction, to hear the matter and referred to the evidence before the lower Court, canvassed in paragraph 2.3 of its submissions at page 2 thereof. The Appellant has argued that based on the letter from the Ministry of Mines and Minerals Development, J12 and which letter appears at page 89 of the RoA, the Court ought to have alerted itself to the provision of sections 96 and 97 of the Act1. 8.6 To put this issue of jurisdiction to rest, we will examine the provisions of the relevant sections of the Act and the letter, the subject of the alleged interpretation of lack of jurisdiction of the lower Court. 8. 7 Part VIII of the Act under the heading, Appeals, provides in sections 96 & 97 as follows; "96. Whenever the Minister, the Committee, any of the Directors or an authorised officer makes a decision against which an appeal lies by virtue of a provision of this Part, the holder or applicant affected by the decision shall be informed of the decision and the reasons for the decision by notice, in writing, and the notice shall inform the person notified of that person's right of appeal. 97. {1} A person who is aggrieved by a decision of the Director of Mining Cadastre, Director of Mines Safety, Director of Mines, Director of Geological Survey or the Committee under this Act may, within thirty days of receipt of the decision, appeal to the Minister in the prescribed manner and form. (2) The Minister shall determine an appeal under subsection (1) in accordance with this Act and the circumstances of the case. {3} A determination of the Minister under this section may include such directions to the Director of Mining Cadastre, Director of Mines Safety, Director of Mines, Director of Geological Survey or the Committee as the Minister considers appropriate for the disposal of the matter, and the Director concerned or the Committee shall give effect to the directions. J13 (4) A person who is aggrieved with the decision of the Minister may appeal to the Tribunal within thirty days of receipt of the Minister's decision. 8.8 It is thus the Appellant's argument that the lower Court could only have proceeded to hear a matter, commenced by an aggrieved person, who, within a period of 30 days of receiving a decision of the Tribunal, moves the Court, as provided by section 100 of the Act1 • 8.9 We have examined the Judgment of the lower Court, which extensively interrogated the claims of the Appellant, with specific reference to the two letters referred to above. The relevant extract of the letter at page 89 of the ROA reads as follows: "Re: Plot No. 278 {16719- HQ-SGL} Ndola Rural Reference is made to the above stated subject and the letter dated 16th January 2017 bearing the same. We would like to confirm that Plot 278 was issued to Proximity Mining And Engineering Limited. .... We would also like to confirm that the licence issued to Paulgil Cheick Enterprises Limited 17649-HQ-SGL included Plot 278. This was an omission and the Mining Cadastre shall take appropriate steps to rectify this error." th 8.10 We also note that there is another letter dated 24 July 2018, written by the Permanent Secretary, and which appears on page 91 of the ROA and on which the Appellant claims his right over Plot 278. This letter also makes reference to the one of lih January 2017. The relevant parts of the said letter reads as follows: J14 "Re: 16719-HQ-SGL for Plot No. 277 and 278 Lufwanyama ...... The licence issued to Paulgil Cheick Enterprises Limited on 8th August 2013 however indicates that both Plot 278 and 371 are included. ... It is based on this fact that the Director of Mining Cadastre wrote the letter addressed to Proximity Mining and Engineering dated 1 i h January 2017 confirming who the rightful owner of Plot 278 is, and also confirming that the licence issued to Paulgil Cheick Enterprises Limited included Plot 278, this was however an omission which the Ministry of Mines has rectified. By copy of this letter Paulgil Cheick Enterprises Limited is advised to limit its operations to Plot 371." 8.11 The question we must pose at this stage is the following: did the letter in issue and seen at page 89 and 91 of the ROA constitute a Notification of decision in terms of which section 96 of the Act is deemed invoked? 8.12 We have reviewed both letters, neither of which, in our considered opinion, constituted a "decision11 in terms of section 96 of the Act. The requirement under section 96 (quoted above), is that the holder or applicant affected by the decision shall be informed of the decisions and the reasons for the decisions by notice in writing, and the notice shall inform the person notified of that person's right of appeal. (emphasis is ours). This section is in mandatory terms, and whichever way we view the letters, they do not communicate a decision, and neither is there any information of the right of appeal. We are of the considered opinion, that the lower Court did not overlook the said letters or overlook the provisions of section 96 and 97 of the Act1. JlS 8.13 To the contrary, the judgment of the lower Court, extensively considered the letters reviewed above, and interrogated the provisions of the MMDA, after which the learned Judge found that the power to cancel or suspend a mining licence, does not vest in the Director or Permanent Secretary, such power being vested in the Mining Licensing Committee. The lower Court relied on the provisions of section 6 of the MMDA to arrive at this determination. This is seen from pages J22 to J28 pages 31 to 37 of the ROA. It is therefore misconceived to allege that sections 96 and 97 of the MMDA, deprived the lower Court of the necessary jurisdiction. There being no communication of a decision to cancel or suspend a mining licence in accordance with section 6 of the Act1, it is trite, that the lower Court, enjoyed the necessary jurisdiction to pronounce itself on an alleged dispute brought to Court by the Appellant. 8.14 The several celebrated authorities on jurisdiction, referred to by the Appellant, are misplaced in this appeal. It is as clear as day, that the argument on jurisdiction, is nothing but a red herring, the Appellant not having achieved its intended outcome in the lower court. We have no hesitation in dismissing ground 1 on jurisdiction. 8.15 Having dismissed the ground on jurisdiction, we proceed to interrogate ground 2, which challenges the decision of the lower Court, based on grounds of procedural injustice occasioned by the refusal of the lower Court to adjourn the trial on the application of the Appellant. 8.16 It has been argued by the Appellant, that the lower Court, in denying an adjournment of the matter, prevented the Appellant from calling the relevant witnesses from the MMMD, who, it is alleged, had pertinent and J16 material documents, which had been produced at pages 140 to 190 of the RoA. 8.17 We have already noted that the dispute lay between, who of the Appellant or the Respondent, had been issued with a small-scale gemstone mining licence, over Plot 278 Lufwanyama. It is trite that the burden of proof lay with the Appellant and this fact was recognized by the lower Court. On 28th July 2021, on the date scheduled for trial, the lower Court denied an application for an adjournment, to call witnesses from the MMMD, at the request of the Appellant. The reasoning of the Court is seen from the record of proceedings of the lower Court at pages 247 to 251 of the RoA. 8.18 The Appellant has submitted, that the refusal by the lower Court, constituted a violation of the inalienable right of the Appellant to be heard, and which went against the grain of section 27 of the High Court Act and denied the lower Court the opportunity to receive evidence from witnesses, that were material to the dispute before the lower Court. The Appellant has further charged, that by its refusal, the Court was not able to "tower above" the parties in its reasoning and Judgment. 8.19 The Appellant has called in aid two decisions of the Apex Court, namely the case of Jacob Titus Chiluba v The Attorney General and the case of Savenda Management Services Limited v Stanbic Bank Zambia Limited 6 to support the argument, that justice hurried is justice denied, and the duty of the High Court to analyze the evidence to see if it proved the claim. 8.20 We must state that it is regrettable that the Appellant seeks to lay blame on everyone, but itself, in its dismal prosecution of its claims. The two authorities cited are plucked out of context, and the principles they speak J17 to, do not lend themselves to the facts in casu. The Appellant has canvassed that the lower Court was duty bound to adjourn the trial to allow for the relevant witnesses to be called. It, however, failed to provide an adequate explanation, as to why it had failed to call the witnesses or issue a th summons to subpoena them from 9 February 2021, when the matter was th originally scheduled to come for trial, and was adjourned to 28 July 2021. 8.21 We stand firm in our view, supported by the decision of the Supreme Court in the case of G4S Secure Solutions Zambia Limited v Lupupa Kabezya Lewis . This was a matter commenced in the Industrial Relations Division of the High Court wherein the trial Judge refused an application by the appellant, albeit the first such application, to adjourn the trial to enable it to call its witnesses. The matter proceeded on appeal, in the face of the refusal of the trial Court to allow the adjournment. The Supreme Court was faced with similar arguments and reliance on similar authorities as are placed before us in casu. Reliance was placed by the Appellant, inter alia, on the cases of Shilling Bob Zinka V The Attorney General and Hinckley and South Leicestershire Permanent Building Society v Freeman , as well as the provisions of Article 18 (1) and (2) (c) and (e) of the Constitution of Zambia3 • 8.22 In the G4S Secure Solutions case7 the Supreme Court, at page J14, , considered only one bRoAd issue for its determination, that is "whether the lower court properly exercised its discretion when it dismissed the Appellant's application for an adjournment." In casu, we have examined the record before us, to answer the same question posed by the Supreme Court above. The lower Court noted, that the matter had come for trial on J18 th 9 February 2021, when the Court gave the Parties the benefit of the th doubt, and adjourned it to 28 July 2021, a period in excess of 5 months. The lower Court, then considered the request for another adjournment, with reference to Statutory Instrument No. 58 of 20204 which enjoins a Judge not to accept an application for an adjournment, unless there are exceptional and compelling reasons to warrant the adjournment. The learned Judge also relied on the reasoning of the Supreme Court in the cited case of G4S Secure Solutions • 8.23 In its decision, in the G4S Secure Solutions case7 , the Supreme Court was reluctant to set down considerations, to determine how trial Courts ought to exercise their discretion when faced with similar circumstances. In its reasoning, the Supreme Court at page J18 stated as follows: "What comes out clearly from most of the said cases is that the decision as to whether grant an adjournment is entirely in the discretion of the court. Further, that an appellate court must be very slow to interfere with the exercise of that discretion by a trial court. That appellate courts should only interfere where the interests of justice demand such interference. 8.24 From the record of proceedings before us, we are satisfied that the discretion of the lower Court was properly exercised, in compliance with the dictates of the law, case law available and bearing in mind, that justice must be that, which is equally applied to both parties and in the proper and due exercise of case management directives employed by the trial Court. The interests of justice in the pursuit of case management, encompassed the need to administer justice in a case in a timely and cost-effective J19 manner. The suggestion by a litigant, that a Court must automatically grant an adjournment, for justice to be done, must be dismissed outright. 8.25 As has been noted, no plausible or tangible reason was advanced by the Appellant for not having called or summoned its intended witnesses in time th for trial scheduled for 28 July 2021 despite having had notice of trial, for over 5 months. The Apex Court in the G4S Secure Solutions 7 noted at page J24 as follows: "A party is not entitled as of right to the first adjournment in a case. We hold that the Appellant was not ready and was just trying to buy time and in the process delay the conclusion of the matter." 8.26 It is cardinal, that the rules of court, and the associated rules of practice devised in the public interest, to promote the expeditious dispatch of litigation must be observed. Consequently, for the proper administration of justice, and in the exercise and discharge of its inherent powers, the Court cannot and will not, entertain applications that fall short of the requirements. On this principle, we are mindful of the pronouncement of the Apex Court in the case of Post Newspapers and others vs CBU Council and Others wherein the Supreme Court said: "While Parties must generally be heard on merits, litigants who sleep on their rights must expect the wheels of justice to turn in their absence for the sake of expedition and finality. 11 J20 8.27 We are also alive to the guidance issued by the Supreme Court in the case of Access Bank (Z) Limited vs Group Five/ZCon Business Park joint Venture wherein the Court stated as follows: "Matters should as much as possible be determined on their merits rather than be disposed of on technical or procedural points. This, in our opinion is what the ends of justice demand. Yet, justice also requires that this court, indeed all courts must never provide succor to litigants and their counsel who exhibit scant respect for rules of procedure. Rules of procedure and timelines serve to make the process of adjudication fair, just, certain and even-handed. Under the guise of doing justice through hearing matters on their merit, Courts cannot aid in the bending or circumventing of these rules and shifting goal posts for while laxity in application of the rules may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules." (emphasis is by the Court) 8.28 In the case at hand, and applying the reasoning above, the learned Judge, in observing the overriding consideration, being the need to do justice to the parties, which encompasses the need to deal with a matter expeditiously, cannot be faulted for denying the adjournment and proceeding to deal with the case for the Respondent who had also filed a counterclaim. This ground is self-defeating, the Appellant has itself to blame for not being fully prepared in the presentation of its case. 8.29 We have no hesitation in dismissing ground 2 of the appeal. J21 8.30 In its third ground of appeal, the Appellant seeks to shift the burden of proof from itself to the trial Court, by alleging that the Court misdirected itself, and fell into grave error, when it failed to realize the significance of the evidence of PWl, in relation to the documents on record of the Appellant's bundle of documents. 8.31 A more flawed argument could not have been advanced. Instead of showing or canvassing how the Judge fell into error, the Appellant has concentrated its attention in its heads of argument, in ground 3, to canvas the theoretical principles of judgment writing. We are of the considered view that it was not for the lower Court to summon witnesses and examine the applicable documents to answer questions now posed by the Appellant in paragraph 4.5 of its heads of argument. To the contrary, it was for the Appellant to pose those questions, and direct them to the relevant witnesses, to allow the lower Court to assess the competing claims based on the documentary evidence before the Court. Simply stated, it was for the Appellant to prosecute its case, with due diligence and to discharge the burden of proof incumbent upon it. The settled case of Khalid Mohammed v The Attorney General1 has firmly placed the burden of proof on the Plaintiff, such that even in the face of a failed defence, the Plaintiff is not entitled to the entry of Judgment in its favor. 8.32 We have also been urged to set aside the findings of the lower Court, based on the principles established by the case of Nkhata and Others v The Attorney General . We have scrutinized the detailed consideration and decision of the lower Court made from pages J14 to J30 on pages 23 to 39 of the RoA, and are satisfied that the reasoning and findings of the lower J22 Court, can neither be faulted, nor set aside as being perverse or against the weight of the evidence. 8.33 Whilst the Appellant may hold a different view from the reasoning of the lower Court, we are of the considered opinion that the grounds advanced, ranging from jurisdiction to alleged procedural unfairness, is simply the attempt of a dissatisfied litigant, seeking a second bite of the cherry. We find no support for the Appellant's feeble attempt in this ground of appeal and dismiss it accordingly. 8.34 Before we vacate this Judgment, we refer to Order X rule 9 (2) of the Court of Appeal Rules5 The said Order provides as follows: • 11A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of the objection to the judgment appealed against and shall specify the points of law or fact which are alleged to have been wrongly decided, such grounds to be numbered consecutively." 8.35 Having considered ground 3, which is cited at paragraph 4 iii above, we are of the considered view that it is couched in a narrative manner, and does not specify the points of law or fact, which are alleged to have been wrongly decided. We have stated in the past, that this is a mandatory requirement. Whilst we would not have hesitated to expunge this ground from the record, we have nonetheless proceeded to consider it. 8.36 The net result is that we find no merit in any of the grounds of appeal, and we dismiss the appeal accordingly. J23 .. 9.0 CONCLUSION 9.1 The appeal being bereft of merit, it is dismissed in its entirety. 9.2 Although costs follow the event, there being no participation by the Respondent in this Court, we make no order for costs. M. J. SIAVWAPA JUDGE PRESIDENT F.M. CHISHIMBA A.N. PATEL S.C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J24