Bank of Zambia v Bernard Fundi (Suing on his own and on behalf of 59 erstwhile Police officers seconded to the Bank of Zambia) (CAZ/8/279/2023) [2024] ZMCA 85 (26 January 2024)

IN THE COURT OF APPEAL HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: BANK OF ZAMBIA AND BERNARD FUNDI (Suing on his own and on behalf of 59 erstwhile Police officers seconded to the Bank of Zambia) CAZ/8/279/2023 APPELLANT RESPONDENTS BEFORE: HONOURABLE M. M. KONDOLO SC, JA IN CHAMBERS For the Appellant: Mr. C. Mukumwa - Legal Counsel Bank of Zambia For the Respondents: Mr. M. Nkunika of Messrs Simeza Sangwa & ., .. .• Associates RULING CASES REFERRED TO: 1. Nahar Investments Limited v Grindlays Bank International (Z} Limited ( 1984) ZR 81 2. Zalatan Zlatco Amautovic v Standard Bank Zambia Limited SCZ/8/300 3. Twampane Mining Co-operative Society Limited v E and M Storti Mining Ltd SCZ/20/2011. 4. Dipak Kumar Patel & Yakun Patel v David Kangwa Nkonde SCZ/33/201 R2 of 19 5. Allen v Sir Alfred Mcalpine & Sona Ltd (1968) 1 ALL ER 543 6. Danmore Mulima v Zambia Revenue Authority SCZ/16/2014 7. Muimo v Pascal Hbakala & Maggie Ndakala CAZ/08/053/2016 8. Lapenda Trading Ltd v Pemba Lapidiaries SCZ/27 /2016 9. Philip Mutantika & Mulyata Sheal S v Kenneth chipungu SCZ/13/2014 10. Rachel Lungu Saka v Hilda Bwalya· Chomba Appeal No. CAZ/08/059/2017 11. Access Bank (Z) Limited v Group Five/Zcon Business Park Joint Venture (sued as a firm) SCZ/8/52/2014 12. Kapoko v People (2016/CC/0023) [2016] ZMCC 6 STATUTES REFERRED TO 1. The Constitution of Zambia, Chapter 1, Laws of Zambia 2. Court of Appeal Act No. 7, 2016, Laws of Zambia 3. Court of Appeal Rules, S. I. No.65 of 2016, Laws of Zambia 4. The Supreme Court Rules (Whitebook) 1999 Edition 5. Halsburys Laws of England Vol. 37 4 th Edition paragraph R3 of 19 INTRODUCTION 1. 1. The Respondents (Applicants) on 1 Qth August, 2023 filed an application to dismiss appeal for Want of Prosecution pursuant to Order 10 Rule 7 of the Court of Appeal Rules, Statutory Instrument No. 65 of 2018 (CAR). The Application was supported by an affidavit and skeleton arguments. 1.2. The Appellant on 16th August, 2023 reacted by filing an application for extension of time within which to file record of appeal and heads of argument pursuant to Order 13 Rule 3 (CAR). This application was equally supported by an affidavit and skeleton arguments. 1.3. The Appellant later on 4 th September 2023 filed its affidavit in opposition to the application to dismiss the appeal. 2. BACKGROUND 2.1. The Respondents (Applicants) commenced an action against the Appellant in the High Court and later applied for summary Judgment under Order 14 A of The Supreme Court Rules [Whitebook] 1999 Edition (RSC). 2.2. The trial Court granted the application and entered Judgment against the Appellant who on 7 th June, 2023, proceeded to R4 of 19 file a notice of appeal and memorandum of appeal challenging the trial Court's Judgment. 2.3. The Appellant did not file its record of appeal within the prescribed period hence the Applicants applied to dismiss the matter for want of prosecution. 2.4. As earlier indicated, the Appellant reacted by filing an application to extend time within which to file the record of appeal out of time. 2.5. I decided to begin with the application to dismiss the matter for want of prosecution because it was filed earlier and depending on the outcome and if necessary, proceed to hear the application for extension of time. 3. THE APPLICANTS CASE (Respondent) 3.1. The Applicants attested that after conducting a search on 9 th August 2023 it was observed that despite having filed its notice of appeal on 8 th June, 2023. the Appellant had not yet filed the record of appeal. 3.2. That the Court of Appeal rules prescribed that the record of appeal must be filed within a period of 60 days from the d ate of filing the notice of appeal. That the Appellant h ad failed to RS of 19 comply and had also made no application for extension of time within which to lodge the appeal. 3.3. The Applicants filed skeleton arguments submitting that in terms of Order 10 Rules 6 and 7 CAR the Applicants are at liberty to apply for the appeal to be dismissed for want of prosecution where the Appellant fails to file the record of appeal within 60 days after filing a notice of appeal. 3.4. That there was no dispute that the Appellant had failed to comply. The case of Nahar Investments Limited v Grindlays Bank International (l) was cited by the Applicants where the Supreme Court guided that a party who realised that it would be unable to file its record of appeal within the prescribed time has a duty to promptly apply to enlarge time. In the cited case the Court further stated that Appellants who sit back until there is an application to dismiss their appeal, , before making their own frantic application for an extension, do so at their own peril. 3.5. That the Appellant should not have waited for the Applicants to apply to dismiss the appeal before making its application for extension of time. r R6 of 19 3.6. The case of Zalatan Zlatco Amautovic v Standard Bank Zambia Limited (2 ) was cited in which the Supreme Court upheld the ruling of a single judge who dismissed an appeal for want of prosecution on account of the appellant not having applied for an extension of time before the application to dismiss the appeal was made. 3.7. The Applicants submitted that parties who failed to comply with rules of Court did so at their own peril and the case of Twampane Mining Co-operative Society Limited v E and M Storti Mining Ltd (3 ) was cited to support the proposition. 3.8. It was prayed that the application be allowed. 4. APPELLANT'S CASE 4.1. The Appellant attested that this was not a proper case in which to dismiss the appeal for want of prosecution because the Appellant had promptly applied for extension of time - within which to file the record of appeal and heads of argument out of time. 4.2. The Appellant filed skeleton arguments submitting that when a party is out of time Order 13 Rule 3 CAR provides for such a party to apply to extend time within which to comply with the rules. 4 .3 . The Appellant cited Halabury• Laws of England Vol. 37 4tia R7 of 19 Edition paragraph 448 where it states that Courts will not dismiss matters for want of prosecution without allowing the Plaintiff to remedy his default unless the defa ult was intentional and contumelious or that there has been inordinate delay such that the defendant will suffer prejudice. The Appellant further relied on the case of Dipak Kumar Patel & Yakun Patel v David Kangwa Nkonde t4t where the cited reasoning was followed by the Supreme Court. 4.4. Also cited were the cases of Allen v Sir Alfred Mcalpine & Sons Ltd ,s, and Danmore MuJirna v Zambia Revenue Authority (6 ) where it was held that the Court must look at the circumstances of each case and determine whether the delay was so prolonged such as to cause injustice on the other party and so as to determine whether the party in default is actually to blame. 4.5. It was submitted that the time within which to compl expired on the 8 th August, 2023 and the application to extend time was made on the 16th August, 2023. The Appellant referred to the Nahar Case supra and submitted that in casu the dela was not inordinate and the Applicants had not shown h o h h A RS ot 19 fit f p f mn f im. . . Th p 11 b r fi rrin t th of ymond Muimo v Pascal Hbakala & Ma11te Ndakala •11 wher the ourt of pp al guid d that cas should be heard on their merits rather than allowing them to be defeated on technicalities. 5. THE HEARING 5.1. Applicants' Arguments 5.2. At the hearing the Applicants repeated their arguments in the Zlatan Case supra stating that where an application to dismiss the appeal had been made the Court should not consider an Appellant's application to extend time or even consider the reasons given for failing to comply. That in the circumstances, the question of whether or not the Appellant inordinately took out the application for extension of time does not even arise. R9 of 19 5.3. Appellant's Argument 5 .4 . The Appellant cited the case of Lapenda Trading Ltd v Pemba Lapidiaries (S) where it was held that each case should be considered in its own circumstances. 5.5. Reliance was also placed on Article 118 of the Constitution which states that Courts must not place too much regard on technicalities. 5.6. The Appellant opined that the circumstances in the Zlatan Case supra were different, because in that case, no acts were taken to pursue or prosecute the matter, and by the time the case came up no application for extension of time had been made, whereas in casu, the Appellant had applied for an extension of time. 5.7. That the Court ought to consider that the delay was just a few days and not inordinate and the reasons for the delay had been outlined in the affidavit in opposition which was that the proceedings were not ready. 5 .8. Applicants' Reply 5 .9 . In relation to the Zalatan Case supra, the Applicants emphasised that it was held that where a party was unabl RlO of 19 to file its record of appeal and heads of argument within the prescribed time and the Applicants have applied to dismiss the matter for want of prosecution, the Appellant cannot rectify the situation by filing an application for extension of time. 5.10. It was opined that the reasons advanced in the Appellants affidavit pointed towards the negligence of in-house Counsel and the case of Philip Mutantika & Mulyata Sheal S v Kenneth Chipungu (9 ) was cited where the Supreme Court held that courts were not concerned with the internal dealings of parties. 5.11. It was prayed that the application be granted with costs. 6. ANALYSIS AND DECISION 6. 1. I have considered the process filed by the parties and the arguments advanced in support of their respective cases. 6.2. It is not in dispute that the Appellant failed to file the record of appeal and its heads of argument within the prescribed period. 6. 3. The record shows that the notice of appeal was filed on 7 th June, 2023 meaning that the record of appeal should h ave been filed by 7 th August, 2023. Rll of 19 6 ·4 · The Applicants conducted a search on the 9 th August and found that the Appellant had not filed the record of appeal and the following day applied to dismiss the appeal for want of prosecution pursuant to Order 10 rule 7 CAR. 6.5. Instead of immediately filing an affidavit in opposition the Appellant on the 16th August, 2023 reacted by filing an application for extension of time within which to file the record of appeal and heads of argument out of time. 6.6. This Court on 16th August, 2023 set down both applications for hearing on the 6 th September, 2023. 6.7. The Appellant as though by afterthought, filed an affidavit in opposition and heads of argument on 4 th September, 2023, two days before the hearing and in contravention of the rule requiring affidavits to be filed two clear days before the hearing. The Applicants however raised no objection. 6. 8. I indicated to the parties that I would begin by considering the application to dismiss the appeal and depending on the outcome would then hear the application for extension of time, if necessary. 6.9. The gravamen of the Appellant's argument is that the delay was not inordinate and that after time ran out, it p rompt! R12 of 19 appli d for an xt . n ion of tim d th rea on for the delay was b cau th High Court had not availed the Appellant with th r cord of pp al. 6 · 1 O. An application to dismiss an appeal for want of prosecution on account of an appellant's failure to comply with a time requirement is a proactive application. The defen ce filed by the a ppellant is rea ctive and will generally consist of reas ons the appellant would have advanced in his affidavit in support if he had made a proactive application for extension of time. 6. 11 . The Courts have said time and again that parties who only awake from their slumber after their feathers have been ruffled by an application to dismiss their case for want of prosecution do so at their own peril. 6.12. This is one such case where the Appellant fell into a perilous slumber after filing a notice of appeal giving rise to this application to dismiss the appeal. The Appellant's affidavit in opposition is extremely liaises faire as it does not provide a single reason as to why the Appellant failed to file the record of appeal within the prescribed period. All it states is that it has filed an application for extension of time. That is R13 of 19 precisely the reactive conduct Courts have repeatedly warned against. 6.13. I perused the affidavit in support of the application for extension of time and this is what it says at paragraph 7; "7. That the Appellant made proactive follow-ups, both in writing and orally, for the record of proceedings to enable it comply with the Court timelines but to no avail. There is now shown to me, produced and marked exhibit "MCJ 1" being a true copy of the letter to the Court in this regard. " 6.14. The affidavit does not state when the said letter addressed to the "Marshal to Hon. Mr. Justice C. Kafunda" was served and the letter is not acknowledged. The last paragraph of the letter states as fallows; "Kindly acknowledge receipt by signing a copy of this letter". 6.15. The exhibited letter was not acknowledged as requested and the Appellant has not explained the anomaly. It is not for the Court to guess why it was not acknowledged and I therefore find that the exhibited letter was not served on the Judge's Marshal. r R14 of 19 6 · 16 · Further, th App llant h not ffi r d any xplanation as to why it did not apply to nl rg tim b fore the 60-day period ela psed. 6 , l 7 · I find it incu mbent to one again comment on th e laxity with which some litigant's approach compliance with rules of Court and their scanty respect for time requirements. We have on numerous occasions warned on our waning patience to entertain such behaviour. 6.18. Litigants are reminded of what Gardner AD CJ said when delivering the Supreme Court Judgment in the case of D. E. Nkhuwa v Lusaka Tyre Services Limited 110 ); "It is a regrettable fact that in recent years' legal practitioners in this country have approached the need to comply with the rules as to time with complete nonchalance. This Court has had occasion in the past to comment adversely on the attitude of legal practitioners to compliance with other rules of procedure but it is time that all legal practitioners were made to understand that where the rules prescribe times within which steps must be taken these rules must be adhered to strictly and those practitioners who R15 of 19 ignore them will do so at their own peril. The provisions in the rules allowing for extensions of time are there to ensure that if circumstances prevail which make it impossible or even extremely difficult for parties to take procedural steps within prescribed times relief will be given where the Court is satisfied that circumstances demand it. It must be emphasised that before this Court is able to exercise this discretion to grant such relief there must be material before it on which it can act." (emphasis mine) 6.19. The warning in the cited case was sounded in 1977 and whether or not compliance by legal practitioners has improved is matter for debate. However, the year after this Court was established, we, in 2017, sounded a similar warning in the case of Rachel Lungu Saka v Hilda Bwalya Chomba (ll) when we said the following; "It is not in dispute that the record of appeal has not been filed. The Applicant did not proffer any explanation as to why they did not apply for enlargement of time within sixty (60) days nor for R16 of 19 extension of time within twenty-one (21) days, although it would seem they were oblivious to the latter provision. It is therefore evident that the Applicant is in breach of the rules. We need to reiterate that the role of the rules of procedure . in the administration of justice lS fundamental and as such they should be followed vigorously as they are there to regulate the processing of appeals and facilitate speedy and orderly administration of justice. This being the first case in which we have outlined and pronounced ourselves on the procedure as regards applications for enlargement and/ or extension of time, we will give the Applicants a benefit of doubt. We however, take this opportunity to wam parties and indeed the learned Advocates representing parties before this Court that in future where there is dilatory conduct and deliberate noncompliance with the rules of procedure in particular CAR [Court of Appeal Rules], the parties shall bear the consequences as we shall not hesitate to refu se app zcatzons as the one in casu and 1. . R17 of 19 consequently dismiss the appeals." 6 · · The Appellant made no effort to show that the exhibited letter to the Jud , M ge s arshal was actually served on the Marshal and has not explained why no application to enlarge/ extend time was made before time actually expired as directed in the N:ahar Investments Case supra. 6.21. The Zlatan Case supra demonstrates the monumental task an Appellant faces when reacting to an applica!ion to dismiss his case for want of prosecution on account of failing to comply with time requirements. 6.22. In an application such as this, the only thing the Applicant has to prove is that the Appellant failed to comply with the time requirement and the only defence available to the Appellant is to provide a good and convincing explanation for failing to comply. 6.23. If the explanation is accepted the Court will exercise the discretion provided by Order 13 Rule 3 CAR which states that the Court may for sufficient cause extend time where time is about to run out or has actually run out. j R18 of 19 6.24. The "sufficient cause" 1· s th e reason, t e maten , upon h ·a1 which the Court may exercise its discretion. In casu, having found that the exhibited letter was not served on the Judge's Marshal and that no explanation was given for failing to apply for an extension of time before the time ran out, I find that the Appellant has not provided sufficient material upon which the Court can consider the defence, and exercise its discretion to extend time to allow the Appellant to file the record of appeal and its heads of argument. 6.25. The argument vis-a-vis Article 118 of the Constitution is without merit because as stated in Access Bank (Z) Limited v Group Five/Zcon Business Park Joint Venture (sued as a firm) '12l in which the Supreme Court held that Courts must never give assistance to parties who show scanty respect to the rules of procedure and that the Constitution never means to oust the obligations of litigants to comply with procedural imperatives as they seek justice from the Courts. 6.26. The cited decision was validated by the Constitutional Court in the case of Kapoko v The People (t 3 t where it held that "Article 118(2) (e) is not intended to do away with .. • R19 of 19 ext.sting principles, laws and procedures, even where the same may constitute technicalities. It is intended to avoid a situation where a manifest injustice would be done by paying unjustifiable regard to a technicality". 6.27 • In the face of the cited authorities, there is no merit in the Appellant's arguments that the Applicant will not be prejudiced if the appeal is not dismissed and that dismissing the appeal will not be in the interests of justice. Where a party has failed to comply with time requirements and fails to provide the Court with material upon which to exercise its discretion to extend time, the question of whether or not the other party will suffer prejudice does not arise. 6.28. In the premises, the application to dismiss the appeal for want of prosecution has merit and the appeal 1s consequently dismissed with costs to the Respondents. Dated at Lusaka this 26th day of January, 2024. c::===~ ············································ M. M. KONDOLO,SC COURT OF APPEAL JUDGE