Mahesh Popat v Resham Maheshbha Popat (APP. NO. 69 OF 2023) (21 March 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APP . NO. 69 OF 2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ~ lllJu ~ l MAR 1014 . ] MAHESH POPAT APPELLANT C1vi L ,\_1.;,STRY 2 Po_ BO)( 50067. \.\)f)fi'.~ AND RESHAM MAHESHBHA POPAT RESPONDENT Coram: Mchenga DJP, Chishimba and Muzenga, JJA On 30th January 2024 and 21st March 2024 For the Appellant: C. Chuula with C. Mumba , Chibesakunda & Co. Advocates For the Respondent: K. Daka, Christopher Russell Cook & Co . RULING Mchenga DJP, delivered the ruling of the court Cases referred to : 1 . Teddy Puta v . Ambindwire Friday, SCZ Appeal No . 30 of 2016 2 . NFC Africa Mining PLC v . Techno Zambia Limited [2009] Z.R. 236 3 . Lilian Chuma Mwanapape v . Patel Chibba Jagdish, SCZ Appeal No. 185 of 2016 4 . Access Bank Zambia Limited v . Group Five/ZCON R2 Business Park Joint Venture (Suing as Firm), SCZ/8/53/2014 5. African Banking Corporation Zambia v. Mubende County Lodge Limited, SCZ Appeal No. 116 of 2016 6. Jonathan Van Blerk v. The Attorney General & 5 Others, SCZ Appeal No. 7 of 2020 7. Barclays Bank Zambia PLC v. Njovu & Others, SCZ/8/21/2019 8. Shoprite Holdings Limited and Another v. Mosho and Lewis Nathan Advocates (sued as firm), SCZ Appeal No. 86 of 2013 9. Sothern Cross Motors v. Steven Maimbika, CAZ/08/102/2018 10. Stanley Mwambazi v. Morrester Farms Limited [1977] Z.R. 108 11. Leopold Walford (Z) Limited v. Unifreight [1985] Z.R. 203 Legislation referred to: 1.The Constitution of Zambia Act No. 2 of 2016 2.The Supreme Court Rules, Chapter 25 of the Laws of Zambia 3.The Court of Appeal Rules Statutory Instrument No. 65 of 2016 R3 INTRODUCTION By a notice of motion, the respondent seeks to have c11 this appeal dismissed on the ground that the record of appeal and heads of arguments, were served on her advocates out of time. In the alternative, the respondent seeks an order that c21 certain portions of the record of appeal be expunged for containing materials that are not necessary for the determination of the appeal. In response, .the appellant has sought leave to apply C3l for the extension of time within which to serve the record of appeal and heads of argument on the respondent. He has also advanced arguments in opposition to the C4l notice of motion. BACKGROUND cs1 On 20th April 2023, the High Court (Chawatama, J.), delivered judgment in a matrimonial cause in which the appellant and respondent, were parties. R4 The matter had originally been heard by a different c61 judge (Chitabo, J.), but following the demise of that judge, Chawatama, J., heard the matter de nova and concluded it. On the 21st of July 2023, the appellant filed his c11 record of appeal and heads of argument. Both documents were only served on the respondent on ce1 the 16th August 2023, 25 days later, which was outside the prescribed 14 days. No leave was obtained prior to the service of the C9l documents out of time. In addition, the record of appeal, from pages 268 c101 to 416, contains proceedings of the matter at the time it was before Chitabo, J. ARGUMENTS IN SUPPORT OF THE MOTION In support of the objections to the record of appeal c111 for containing extraneous materials, Order X Rule 9 sub-rule 5 (h) of the Court of Appeal Rules, was referred to and it was submitted that the record of RS appeal must only contain materials that are relevant to the determination of the·appeal. Counsel then refe.rred to the case of Teddy Puta v c121 Ambindwire Friday1 and submitted that since the proceedings of the matter when it was before Chitabo J., cannot be relied on during the hearing of the appeal, their inclusion rendered the record of appeal defective. On the basis of the decisions in NFC Africa Mining c131 PLC. v. Techno Zambia Limited2 and Lilian Chuma Mwanapape v. Patel Chibba Jagdish3 counsel submitted , that the appeal should be dismissed because the defect affects the validity of the appeal. As regard the service of the record of appeal and c141 heads of argument out of time, without the leave of this court, it was submitted that the appellant breached Order X Rule 9 sub-rule 9 of the Court of Appeal Rules. Counsel submitted that even though Article 118 (2) (e) c1s1 of the Constitution provides that justice must be administered without undue regard to technicalities, R6 the decisions in the cases of Access Bank Zambia Limited v. Group Five/ZCON Business Park Joint Venture (Suing as Firm) 4 and African Banking Corporation , Zambia v. Mubende County Lodge Limited5 make it clear , that litigants must comply with procedural rules. In this case, the failure to comply with pr0cedural C161 rules rendered the appeal incompetent, he argued in conclusion. We were urged to dismiss the appeal with costs. c111 ARGUMENTS IN OPPOSITION ue1 The motion has been opposed. As regards the ·· objection to the inclusion of c191 proceedings before Chitabo, J., Order X Rule 9 sub rule 5 (i)of the Court of Appeal Rules was referred to and it was pointed out that the rule allows for the inclusion of document that are necessary for the proper determination of the appeal. c201 Counsel then referred to Rule 58 (4) (i) of the Supreme Court Rules, a provision he argued was similar to Order X Rule 9 sub-rule 5 (i)of the Court of Appeal Rules, R7 and submitted that in the case of Jonathan Van Blerk v. The Attorney General & 5 Others6 , it was held that, that the rule provides some latitude of what to include in the record of appeal. Counsel proceeded to argue that in any case, they do c211 not seek to rely on the proceedings before Chitabo, J. That being the case, the respondent will not be prejudiced in any way by their inclusion. c221 In addition, counsel submitted that the circumstances in the cases of NFC Africa Mining PLC v. Techno Zambia Limi ted2 and Lilian Chuma Mwanapape v. Patel Chibba Jagdish3 can be distinguished from what , happened in this case. In those cases, the records were defective because c231 materials necessary _for the determination of the appeal was not included, while in this case surplus material has been included. Finally, cases including Barclays Bank Zambia PLC. c241 v. Njovu & Others7 and Shoprite Holdings Limited and Another v. Mosho and Lewis Nathan Advocates (sued as firm) 8 were referred to and it was submitted that it , RB is not every breach of procedural a rule that should result in the dismissal of an appeal. Corning to the serving of. the record, the appellant c2s1 conceded that the record and heads of argument were served out of time without the leave of the court, and thus their application for the extension of time within which to serve the respondent. It was further subrni tted that even if they had c261 served the respondent outside the time specified by Order X Rule 9 sub-rule 9 of the Court of Appeal Rules, their appeal cannot be dismissed because of that irregularity; the case of Southern Cross Motors v. Steven Maimbika9 was referred to in support of the proposition. Having so stated, they implored this court to c211 exercise its discretion in accordance with Order 13 Rule 3 (3) of the Court of Appeal Rules, and not dismiss the appeal but condemn the appellant to costs, as guided in Stanley Mwambazi v Morrester Farms Limited. 10 R9 CONSIDERATION OF THE MOTION AND DECISION OF THE COURT We will first deal with the issue whether the appeal c2e1 should be dismissed on account of the record of appeal containing materials that are not necessary for its determination. Going by the decision in Teddy Puta v Ambindwire c291 Friday1 the proceedings of this matter when it was , before Chitabo, J., are not relevant to the determination of the appeal. This being the case, the argument that Order X Rule c301 9 sub-rule 5 (i) of the Court of Appeal Rules, provides the appellant with some latitude ·on what to include in the record of appeal, is untenable. There is no reason why materials that are not c311 relevant to the determination of the appeal, should be included in a record of appeal. While it is our view that the inclusion of the c321 proceedings before Chitabo, J., rendered the record of appeal defective, we are of the view that the nature of the defect is not the kind that would warrant the dismissal of the appeal. ,. RlO This is because the appeal can still be determined C33l with the extraneous materials in the record of appeal, as they are of no pr6bative value. This being the case, the respondent will suffer no prejudice. We therefore decline to dismiss the appeal on account C34l of the record of appeal containing extraneous materials. We will get back to the way out in a moment. Corning to the service of the record of appeal and c3s1 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 C36l accordingly the appellant's breach of it is was not fatal and is thus curable. This is a position we took in the case of Southern Cross Motors v. Steven Maimbika9 which we still maintain. , In arriving at that conclusion in this case, we have c311 additionally considered the length of the delay together with the stage of the proceedings, as guided Rll in the case of Leopold Walford (Z) Limited v. Unifreight11 • The record of appeal and heads of arguments were c3e1 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 C39J respondent's request to dismiss the appeal on that ground is unsuccessful. VERDICT Having found that the appeal c.annot be dismissed on c401 account of containing extraneous materials, which defect is curable, we direct that all the proceedings before Chitabo, J., be expunged from the record of proceedings. We grant the appellant leave to serve the record of c411 appeal (without portions of the proceedings we have expunged) and heads of arguments bn the respondent, out of time. ,.. R12 We order that the record of appeal and heads of C42J arguments be served on the respondent within 14 days of this ruling . Finally, the costs of these proceedings will be borne C43J by the appell ant; to be taxed in default of agreement . C . . R . Mchenga DEPUTY JUDGE PRESID~ BLICOF ollRTOf-~p 2. f M•~ 2C24 1.. • • 1J,s rq .. .. .. F.M. Chishimba --.. . SOOf-.?.L.U~._-,(. , zenga COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE ,, - - .. . . ·"'NJtt ' 2 t MA~ 212~ ll l'\i..l