Daniel Ngosa Kalale v Abraham Simwanza (CAZ/08/194/2024) [2025] ZMCA 51 (11 March 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/08/194/2024 BETWEEN: DANIEL NGOSA KALALE _ , I ' MAR 2025 APPELLANT AND ABRAHAM SIMWANZA RESPONDENT CORAM: Hon. Mr. Justice K. Muzenga in Chambers at Lusaka. For the Applicant: Mr. S. T. Banda & Mr. D. Mondoka of Simeza, Sangwa & Associates ✓ For the Respondent: Mr. K. Mambwe of Messrs Ferd Jere & Co EX-TEMPORE RULING Case referred to: 1. Birkett v James (1978) AC 297; (1977) 2 ALL ER 801 Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016. R2 This is an application for extension of time within which to file heads of arguments and record of appeal pursuant to Order 13 Rule 3 of the Court of Appeal Rules, Statutory Instrument No. 65 of 2016. I have carefully considered the application for extension of time in which to file the record of appeal and heads of argument, the affidavits and arguments for and against the application. Learned counsel for the respondent has opposed this application and argued that this court has no jurisdiction to consider the application on grounds that it is incompetent, for having been filed outside the 14 days period in which it should have been filed. On the other hand, learned counsel for the appellant has argued that even though the application was filed outside the 14 days, it is still properly before the court as it was brought within the 21 days period allowed under Order 13 Rule 3(2) of the Court of Appeal Rules {CARs). It is not in dispute that the within application was brought outside the 14 days in which it should have been brought. The question therefore is whether the within application is incompetently before me. According to Order 13 the court wields power to extend time to do anything relating to bringing an appeal or an application or anything related to an appeal or an application, before the court. A party is thus expected to adhere to the timelines provided by the Rules of Court or R3 Orders given by the Court. A party who fails to do so, consents to suffering consequences of such disobedience. In the circumstances, whenever a timeline is given by the Court or Rules of the Court, a party who has been given such time is expected to promptly make an application for extension of time, even before the expiration of the given period, whenever it becomes apparent that they would not be able to adhere or comply with the time. If for some reason an application is not brought before the court during the initial time given, the party has an additional 21 days period from the date of the expiration of the initial given period . Should the 21 days elapse, the party cannot bring or file an application for extension of time without seeking first leave of the court. This is import of Order 13 Rule 3(2) of the CARs, as correctly argued by learned counsel for the appellant. I must however state that it is folly for a party to simply ignore the initial period given and hope to dive into the 21 days deep waters period without any justifiable cause. This is because even if the Rules allow the bringing of such applications within the 21 days after the expiration of the initial period, there must be disclosed on the record justifiable or excusable reasons for the delay, otherwise the court may exercise its discretion not to grant the application. Therefore, the delay as in casu/ does not go to jurisdiction but to whether or not the court will grant the application. In the circumstances, I hold that the application is competently before me and I have jurisdiction to consider it. R4 This court wields power to grant applications for extension of time in terms of Order 13 above. I note that the initial 14 days for bringing the application was during the Christmas vacation period and the appellant filed the application a few days into the 21 days period. I cannot, therefore, in the circumstances hold that the appellant is deliberately delaying the matter. Further, there is no inordinate delay in terms of the case Birkett v James1 • I have also considered the reasons given by the appellant for the delay in failure to comply, the reason being that the typed transcript of proceedings at the High Court was not ready and that follow-ups were being made. I accept the explanation and it is indeed not the fault or stratagem of the appellant to delay the appeal. I have also considered that the transcript of proceedings is ready and has been exhibited. I am further guided by the overriding principle that matters must be determined on their own merits. I therefore find merit in the application and I grant it. The appellant is given 30 days from today in which to file the record of appeal and heads of arguments. Costs will be in the cause. Dated this 11th day of March 2025. K. Muzenga COURT OF APPEAL JUDGE