AMEN AMEN CITY v. C.K. MINING CO LTD & 12 OTHERS

The application which is the subject of this Ruling was filed by the 2nd to 11th defendants and the 13th defendant. It seeks to set aside the Notice of Appeal filed on 3rd July 2018 as well as all court processes filed by both the plaintiff/appellant and the 1st defendant/respondent.

Having read the affidavits for and against the motion and after hearing submissions from Counsel in the matter, we are satisfied that the “Notice of Appeal” is not defective in any manner that makes it a nullity and robs this court of the competency to entertain the interlocutory appeal just because the applicants and their counsel are not served with the processes. The Notice of Appeal was properly filed and thus unaffected by any non-service on the Applicants.

The Notice of Appeal did indicate that all the Defendants in the suit are directly affected by the appeal. As such, it was expected that the Notice of Appeal and all processes would be served on all the parties. The question to be asked however is; are the applicants indeed parties who will be affected by the outcome of the Interlocutory Appeal?

It is our view that though parties to the suit; the applicants are not necessary parties to the interlocutory appeal. Any notice of appeal served on them will be meant to inform them as interested parties that the substantive suit will suffer an adjournment due to the interlocutory appeal. Whatever way the Ruling in this interlocutory appeal will go, the Defendants/Applicants will still remain parties to the substantive suit and their counterclaim against the Plaintiff/Appellant/Respondent will be unaffected.

The Applicants counsel also complained of breach of the audi alteram partem rule of natural justice and miscarriage of justice. We are of the view that these arguments at this stage and on the basis of the non-service of these processes on them are flawed as no decision has yet been taken on the interlocutory appeal, nor any adverse orders made against the applicants herein, or any judgment signed against any party who was not duly served.

In the words of the Applicants own counsel, they did not even participate in the motion before the High Court which has culminated in this appeal. So if the Applicants indeed think that they should have been served because they are indicated as parties directly affected on the Notice of Appeal, the best they can ask for is that they be served with these processes and then given time to respond to them before the court proceeds to gi