Bomo (Pty) Ltd v Zakhem Construction Botswana (Pty) Ltd and Others (Civil Appeal No. 23 of 1995) [1996] BWCA 53; [1996] B.L.R. 729 (CA) (19 July 1996)

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Bomo (Pty) Ltd v Zakhem Construction Botswana (Pty) Ltd and Others (Civil Appeal No. 23 of 1995) [1996] BWCA 53; [1996] B.L.R. 729 (CA) (19 July 1996)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE

Civil Appeal No. 23 of 19 95 High Court Case No. Misca. 455 of 1994

In the matter between:
BOMO (PTY) LIMITED       Appellant
and
ZAKHEM CONSTRUCTION BOTSWANA(PTY) LTD. 1st Respondent
ZAC CONSTRUCTION (PTY) LIMITED   2nd Respondent
KGATLENG LAND BOARD      3rd Respondent
Mr. M. L. Mogobe for the Appellant Mr. R. Kamushinda for the Respondents
JUDGMENT (Delivered on the Day of July, 1996

Coram: T. A. AGUDA, J.A. J. H. STEYN, J.A. LORD W. L. K. COWIE, J.A.

AGUDA. J.A.:
Introduction•

On December 13, 1994, the appellant made an urgent application ex parte to the High Court for a rule nisi to issue returnable on the first Motion Date in January, 1995 calling upon the respondents severally to show cause why they should not be

?
2 interdicted and restrained from carrying on certain
activities (which are unnecessary to set down in this
judgment) pending a suit which the appellant proposed
to institute against the respondents. The application
was heard on December 14, 1994 and granted by
Barrington-Jones, J., who also ordered that the rule
nisi should operate as an interim interdict. On the
return day the application which was then placed
before Nganunu, J., was vigorously opposed by Counsel
for respondents Nos. 1 and 2 who submitted that the
Rule be discharged. In a considered judgment
delivered on May 16, 1995, the learned judge dismissed
the application, and discharged the Rule with costs.
It would appear that sometimes after this the
appellant manifested an intention to appeal against
the judgment of Nganunu, J., by taking certain steps.
These will be set down presently, at least as much as
can be gleaned from the record. What is of importance
to say at the moment is that on June 18, 1996, the
Attorneys for the 1st and 2nd respondents filed an
application under the Court of Appeal Rules, rule 23,

3 to strike out the appeal on several grounds.
Application to strike out the appeal;
The grounds for which the appellant wants the appeal to be struck out are the following:

That the undated Notice of Appeal which was served on Attorneys for the appellant is defective in that it does not comply with Rule 12 paragraphs (1), (2) and (3) of the Rules of the Court of Appeal.

Appellant's attorney has no Power of Attorney, and accordingly no mandate to prosecute the appeal.

3 . The Appellant has not complied with Rule 13 (1) of the Court of Appeal Rules in that the Notice of Appeal was filed out of time.

4. The Appellant has not complied with its obligations under Rules 18 and 19 in that it has not made payment of the security for costs by the date set down by the Registrar, or at all.

Before considering these points I must express my
disapproval of the nomensclasture which the
respondents decided to give to this court. This Court
is established by a Statute and that Statute says that
this is the Court of Appeal for Botswana, not, "The
Appeal Court of the Republic of Botswana" as shown at

4 the heading of the respondents' Notice as well as in
the Heading of the Founding Affidavit. Similarly the
Rules made under the Court of Appeal say that the
"Rules may be cited as the Court of Appeal Rules" not
"Appeal Court Rules" as stated by the respondents in
their Notice. This slipshod manner of the Attorneys
for the appellant in these not so important things has
manifested itself in greater things with devastating
effect as I will show presently.

I shall now proceed to consider the points of objection to this appeal taken by the respondents but in doing so I shall consider point 2 last.

However, before doing so I believe it is vital that I should say that some of the errors complained of, as I will also show later, can be traced down to the lack of clarity in the minds of Attorneys as well as in the minds of the staff of the Registry as to the proper application of the Court Rules especially as to the clear dichotomy between the registrar of the High Court and the Registrar of the Court of Appeal. There has been a total mix-up of the functions of

5 these two positions possibly because since the
inception of the Court of Appeal in 1973 (Act No. 44
of 1972 which took effect from May 1, 1973) one person
and one person only has occupied the two positions.
The Rules clearly delimit the functions of the
Registrar of the High Court and those of the Registrar
of this Court. Rule 21 of the Court of Appeal Rules
says clearly that after an appellant has fulfilled all
the responsibilities placed upon him by the preceding
rules the Registrar of the Court below (that is, the
High Court) shall transmit the record of appeal to the
Registrar of the Court of Appeal. It is only after
such transmission that the Court of Appeal will be
seized of the matter. It is important at this
juncture to note that the High Court Rules define
"Registrar" as meaning the Registrar of the High
Court, and including a Deputy Registrar, an Assistant
Registrar and so on (rule 3), whilst similarly the
Court of Appeal Rules say "Registrar" means "the
Registrar of the Court, and includes any Deputy or
Assistant Registrar of the Court"(rule 2). The Rules

6
also say that "^xCourt' means the Court of Appeal" (rule
2) . So both Rules anticipate different functions for the two different Registries.

As I have stated above, it seems very clear to me that the whole process of appeal in this country as in most other countries is based upon the assumption of the existence of two difference offices - office of the Registrar of the High Court, and office of the Registrar of the Court of Appeal. If the office of the present Registrar and Master which perform the functions of both officers and if all attorneys were to bear this in mind, a lot of wastage of time and money will be avoided. The first ground of objection:

The first ground upon which the respondents base their objection to this appeal is that the undated Notice of Appeal which was served on their attorneys in this case did not comply with the provisions of paragraphs (1), (2) and (3) of rule 12 of the Rules. They are as follows:

"12 (1) A notice of appeal shall set forth the ground of appeal and shall state the exact nature of the relief sought and the names and addresses of all parties directly-affected by the appeal. It shall also have endorsed on it an address within Botswana for service.

2) If the ground of appeal alleges misdirection or error in law, the particulars and nature of the misdirection or error shall be clearly stated.

(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative, and shall be numbered consecutively."

Now the purported Notice of Appeal which was undated
and issued by Messrs Segopolo & Mogobe Legal
Practitioners is as follows, and I quote it in full:

"BE PLEASED TO TAKE NOTICE that in the Court of Appeal of the Republic of Botswana, Private Bag 1, Lobatse be pleased to take notice that Applicant intends to appeal against the judgement of His Lordship Mr. Justice Nganunu dated 16th May, 1995:

The grounds of appeal, which are subject to amplification and magnification upon receipt and perusal of the court record are as follows:

1. A date of hearing had been set and agreed as the 3rd August, 1995.

Applicant had not sought an application to confirm the rule but simply to extend same until the 3rd August, 1995.

The documents were not complete in the Replying Affidavits had not been filed.

His Lordship erred both procedurally and on the law.

The matter had not been argued on the merits and therefore His Lordship had no basis for making final judgement.

A detailed notice of appeal with detailed grounds will be submitted upon receipt and perusal of the court record."

It is clear on the face of this document either that
the attorneys had never read Rule 12(1), (2) and (3)
of the Court of Appeal Rules, or that they thought it
fit to neglect the rule. Not only do the three
paragraphs of that rule say precisely what Notice of
Appeal must contain and how the contents must be set
down, but the Second Schedule to the Rules prescribes
very clearly in Civil Form 1 what a Notice of Appeal
must contain and how the contents must be arranged.
Attorneys for the appellants would appear not to have
been aware of the Form or they rather believe that it

9
is not binding on them. I do not consider it necessary to quote the Civil Form 1 here it being sufficient for me to say that the contents follow very closely the provisions of paragraphs (1), (2) and (3) of rule 2.

The appellant's answer to all these gross inadequacy and non-compliance with the rules as herein pointed out is contained in the affidavit of Mompoloki Lerumo Mogobe paragraphs 10 (part) and 11 thus:

"10 ... I have discussed this aspect (noncompliance with rule 13(1) and (2)) with advocate Sawas who is seized of the main action, and he has requested me to request a postponement in the interests of justice and tender an apology to court.

11. It is submitted that this might also enable the appellant to amplify on the grounds and to comply duly with the Rules of Court if it is found that there has not been strict compliance ..."

This would appear to confirm my impression that the
Attorneys were unaware of the rules and of the Form
prescribed otherwise one cannot explain the statement
on oath that "if it is found that there has not been

10
strict compliance", since it is so plain on the face

of the alleged Notice of Appeal that there has been no compliance at all with the rules. The fact is that the appellants have not filed any Notice of Appeal cognisable under the rules. I will mention some of the defects in the said Notice which renders it void and of no effect.

1. The Form prescribed as follows:
"TAKE NOTICE that the plaintiff/defendant
being dissatisfied with the decision/part of
the decision of the High Court, more
particularly stated in paragraph 2 below
contained in the judgment/order of the Court

dated the .... day of 19 . . DOES
HEREBY appeal to the Court of Appeal ..."
(emphasis mine). On the other hand the Notice filed by the appellant says "Applicant intends to appeal".

2. The Form obliges the appellant to indicate
if he is appealing against the whole judgment or part
of it and in the latter case to state which part. The

11
appellant's purported Notice in this case is silent on this point.

The rules and the Form say that the appellant must state his grounds of Appeal and such grounds should be numbered consecutively. If there is any ground which alleges a misdirection in law, the particulars and nature of such misdirection must be given. The only ground of appeal which by any stretch of the imagination can be said to be a ground of appeal says in a most cavalier manner: "His Lordship erred both procedurally and on the law." For purpose of compliance with the rules this is totally useless,-therefore the alleged Notice contains no ground of appeal, and it is therefore null and void.

The Civil Form 1 says that the appellant must state what relief he is seeking from the Court of Appeal. The Notice filed in this case is silent on this.

The Form also obliges an appellant to give the names and address of every person affected by the appeal. The Notice given by the appellant is silent

12
on this point also.

6. Finally, the Form prescribes that the Notice should be dated. The Notice concerned in this case bears no date, and no reason has been adduced for this laxity. It appears to me unbelievable that an attorney should ever file in court a document which bears no date, more especially in a case like this when the document filed is one meant to originate proceedings in the highest Court in the country, and which to be valid requires to be filed by a certain date. To say the least I am shocked by the lack of competence in the Attorneys handling this appeal on behalf of the appellant.

In case any authorities were required for the conclusions which I have reached in this case, I would like to set down here verbatim a similar Form prescribed by similar rules of the Nigerian Court of Appeal Rules. It is FROM 3 and it is as follows:

13 "CIVIL FORM 3
IN THE COURT OF APPEAL
"NOTICE OF APPEAL
(Order 3, Rule 2)
Between          Plaintiff
and
         Defendant
TAKE NOTICE that the plaintiff/defendant being dissatisfied with the decision/part of the decision more particularly stated in paragraph 2*
of the court contained in the
judgment/order of        dated the       day of
         19      doth hereby appeal to the Court of

Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relief set out in paragraph 4.

And the Appellant further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
2.

Part of decision of the lower Court complained.+
3. Grounds of Appeal:

(1) (2) (3), etc.
4.

Relief sought from the Court of Appeal.
5. Persons directly affected by the appeal:
Name Address

(1) (2) (3), etc.

DATED this day of 19
Appellant
Whose address for service is"

14 Under the Nigerian Rules, the Nigerian Supreme
Court has held that there cannot be a cognisable
appeal without a proper Notice of Appeal: Alo v.
Attorney General of Oyo State [1990] 7 NWLR 448. The
West African Court of Appeal in considering the
provisions of similar rules had held previously that
where such Notice contains no proper grounds of appeal
it would be held that the Notice is a nullity and may
amount to abuse of process: Halahy v. Halaby (1951) 13
WACA 170. In considering the propriety of a ground of
appeal for purposes of the rule the Nigerian Supreme
Court has also held that a ground of appeal which
alleges misdirection without showing in what respect
is worthless (Okorie v. Udom (1960) 5 FSC 162) , and
should be struck out (Osawaru v. Ezeiraka (1978) 6 &
7 SC 135. An appellant is obliged to specify the
nature of the misdirection and in what respect the
judge mis-directed himself: Andeniji v. Disu (1959) 3
FSC 161. The same Supreme Court has also come to the
conclusion naturally that where all the grounds of
appeal contained in the Notice of Appeal are

15
incompetent then the Notice would be a nullity;

Akuchie v. NwamgrH [1993] 1 NWLR 313. If there is no valid Notice, then the Court of Appeal would have no jurisdiction to entertain the appeal. On the other hand, however, the same court has held in several cases that the Court of Appeal should not strike out or dismiss an properly appeal before it on a mere technical defect which does not go to the jurisdiction of the Court to hear the appeal, for example, the failure to state the relief sought where this can be deduced from the Notice (Okonjo v. Odje (1985) SC 267), or to provide an address. But the authorities are quite clear that where there is no cognisable Notice, the Court of Appeal can have no jurisdiction to adjudicate in the appeal. For this reason alone the appeal should be struck out.

My conclusion on the objection considered under the head is that upon all the facts hereinbefore set down the Notice filed in this case is a complete nullity - it is irretrievably bad - and this Court cannot found jurisdiction on it.

16
The third ground of objection:

The third ground upon which the application has been made is that the appellant filed its notice out of time, and without complying with the provisions of rule 13. That rule says:

"(l) A notice of appeal shall be filed within six weeks of the date of the judgment appealed against. The registrar of the court below shall not file any notice of appeal which is presented after the expiration of the period set forth in this rule unless leave to appeal out of time has previously been obtained.

(2) When leave to appeal out of time is so granted, a copy of the order granting such leave shall be annexed to the notice of appeal."

As can be seen the notice is peremptory saying that
the Registrar of the court below shall not file any
notice which is presented to him after the expiration
of the period allowed, unless leave has previously
been obtained.
What really transpired in this case is far from

17 clear but can be stated as follows. As stated earlier
the judgment sought to be appealed was delivered on
May 16, 1995, and it would appear that attorneys for
the Appellant deposited at the offices of the
Registrar of the Court below the Notice of Appeal in
question with a postage stamp of PIO placed on it on
a date which could be June 27, 1995, since the Notice
was not in fact filed, and does not bear the stamp of
the Registry. The Court of Appeal registry thought
that this was wrong, and believed that the Notice
ought to have been filed at its own Registry by paying
the fee of P15 prescribed by the Court of Appeal Rules
First Schedule, Head A, item 1. Of course, the
Registrar of the Court of Appeal was wrong in
believing that the Notice of Appeal should have been
filed in his Registry. The proper registry for
receiving Notice of Appeal is the High Court Registry,
and the proper fee is as prescribed by the Court of
Appeal Rules, and the Notice cannot be said to have
been filed until the appropriate fees have been paid.

18
It is common cause that the Notice of Appeal was
not properly filed at the Court of Appeal Registry by
the payment of prescribed fee until after the period
of six weeks prescribed under rule 13 had expired.
Even as at the date it was deposited at the Registry
of the court below and the Registrar of that Court
could not have properly and filed it because the
filing fee of P15 was not paid. When the Registrar of
the Court of Appeal pointed this out to appellant's
attorneys that their notice was late, their reply was
(Annexure BM4 to the Affidavit of Mr. Mogobe):

"It is necessary however that we deal with the last paragraph of your letter in which you say that we failed to appeal on time. In this regard we point out that we filed Notice of Appeal timeously with the Respondent's attorneys. The difficulty however arose in this matter being that the civil registry staff advised us that no stamps are required for the Notice of Appeal. As a result we filed the Notice of Appeal without stamps".

Once again I must say that the admission contained in
this letter confirms my view that the Attorneys were
totally ignorant of the provisions of the applicable
rules of procedure. Otherwise how can an attorney:

(1)

substitute delivery of a Notice of Appeal to the respondents' Attorneys for the filing of a proper Notice of Appeal at the High Court Registry;

(2)

believe that a Notice of Appeal can be properly filed without the payment of the fees prescribed by the rules;

(3)

accept any civil registry staff's legal advice which is patently wrong, and act on it;

(4)

believe that he and any civil registry staff can by agreement between themselves agree to waive the provisions of the rules; and

(5)

fail to comply with the provisions laid down in rule 13 when there has been a failure to file a Notice of Appeal within the time prescribed?

The Registrar of the court below (i.e the High
Court) was clearly in error to have accepted the
Notice of Appeal for filing after the six weeks period
had expired as prescribed in rule 13, without leave.
As clearly stated he could only have accepted the
Notice for filing only if the appellant had obtained
leave, which he had not. Had he done so a copy of the
order granting leave should have been annexed to the
Notice. In the case of Chukwu v. The State (1984) 7

SC 8 the Supreme Court of Nigeria under a similar rule held that a Notice of Appeal filed out of time and where no leave has been obtained must be struck out.

For all the reasons herein given objection number 3 is sustained and this appeal must be struck out, as this court lacks jurisdiction there being no Notice of Appeal properly filed in this case. The fourth ground of objection;
The fourth ground upon which this application has
been brought is the failure, so it has been alleged,
of the appellant to comply with rules 18 and 19 of the
Court of Appeal Rules. Those rules are as follows:

"18. The appellant, shall within such time
as the Registrar of the court below may
direct, pay the fees prescribed for
preparing the record

19. The appellant shall, within such time as the Registrar of the court below shall fix, deposit such sum as shall be determined by such Registrar or give security therefore by bond with one or more sureties to the satisfaction of such Registrar for the due prosecution of the appeal and for the payment of any costs which may be ordered to be paid by the appellant."

This is followed by a proviso by which the Government

21 is made exempt from the provision of the rule.

As I have said earlier these Rules are based upon a dichotomy as between the Court below, namely, the High Court, and the Court of Appeal. In my view, the Registrar of the Court below, that is, Registrar of the High Court is not obliged to prepare a record of appeal until an intending appellant has complied with the provisions of rules 18 and 19. And I do not think that the Registrar should prepare a record expending public funds where an intending appellant has failed to comply with these rules, and leave has not been sought and obtained. The grant of such leave by the High Court, where necessary, must precede the preparation of the record. What is to follow on noncompliance with the two rules is laid down in the rule that follows immediately, namely, rule 20. That rule says:

"If the appellant fails to comply with any of the requirements of rule 18 or 19, the Registrar of the court below shall so inform the respondent and the Registrar and the Court may thereupon order that the appeal be dismissed with or without costs."

As I have said earlier there is nothing in the rules which permits the Registrar of the High Court (the Court below) to prepare the records of the appeal as at that stage. Indeed it might, also as I have said, be a waste of public funds to prepare the record at that stage, for it may well be that the appellant no longer wishes to pursue his appeal even though he has filed his Notice of Appeal within the time prescribed. What rule 20 says is that in such an event the Registrar of the High Court will make a report to the Registrar of the Court of Appeal and to the Respondent. Then in practical terms the Registrar of the Court of Appeal will bring this failure to the attention of the Court of Appeal. The court, that is the Court of Appeal may then order a dismissal of the appeal with or without costs. The Court may, on the other hand upon good and sufficient cause being shown on affidavit evidence, give leave to the appellant to go back to the High Court to comply with the rules by

23 merely striking out the appeal, if the justice of the
case so demands. It must be noted that up to that
stage the Registrar of the High Court has no right
under the law to prepare the Record. For, if the
appeal is dismissed by the Court of Appeal, a lot of
public funds would have been expended and there is no
provision in the Rules by which the appellant can be
made to bear the expenses thus incurred in the
preparation of the record. It may well be, as has
been reported to us on a number of occasions, that the
appellant has disappeared and counsel is unable to
trace him.
Viewed from what the Rules of the Court of Appeal
say there has been in this case a blatant breach of
rules 18 and 19 by the appellant, and breach of rule
2 0 by the Registrar of the High Court. Too often have
breaches of this nature been committed, and condoned
by this court, mainly because of condonation by the
parties and the Registrar. The Rules are meant to be
followed, with the clear understanding that in a very
deserving case, their rigour may be mellowed down by

24 the Court of Appeal in the exercise of its powers to
do justice. It must however also be remembered that
the Court is to do justice according to law. I find
I am unable to concur in wholesale breaches of rules
of court simply because I am anxious to do justice.
The Court cannot administer the law without justice
nor justice without the law.
Here we are faced with a case in which, as I am
told, the appellant has not deposited any sum of money
for the compilation of the record of appeal as
enjoined by rule 18 of the Rules possibly because he
has not been so advised by the Registrar of the court
below. On the admission of the appellant - affidavit
of Mompoloki Lerumo Mogobe, paragraph 2 - the
appellant gave security for costs by a cheque dated
July 2, 1996, the very day this case should have been
heard in court. This was in breach of rule 19. Mr.
Mogobe in his affidavit then says casually that that
must be the end of the matter. No leave of this court
or indeed of the High Court was sought and obtained