Sangwa and Simeza, Sangwa & Associates v Hotellier Limited and Ody's Work Limited (SCZ 8 402 of 2012) [2014] ZMSC 7 (10 February 2014)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) SCZ/8/402/2012 B E T W E E N: JOHN SANGWA SIMEZA, SANGWA & ASSOCIATES APPLICANT (Appealing as a Firm) AND HOTELLIER LIMITED ODY’S WORKS LIMITED RESPONDENT 1ST APPLICANT 2ND 1ST RESPONDENT 2ND Coram: Mwanamwambwa, Muyovwe, JJS and Hamaundu, Ag. JS On the 24th July, 2013 and 11th February, 2014. For the Appellants: Mr. K. Chenda, Messrs Simeza, Sangwa & Associates For the Respondents: Major C. A. Lisita, Messrs Central Chambers R U L I N G MUYOVWE, JS, delivered the Ruling of the Court Cases referred to: 1. D. E. Nkhuwa vs. Lusaka Tyre Services Limited (1977) Z. R. 43 R1 2. Nahar Investments vs. Grindlays Bank International Zambia Limited (1984) Z. R. 81 3. Stanley Mwambazi vs. Morester Farm Limited (1977) Z. R. 108 4. Star News Shops Ltd. vs. Stafford Refrigeration Ltd. (UPO (UK) Ltd and another, third parties L’unité Hermétique SA, fourth party) By Notice of Motion, the applicants apply for an Order that the Ruling delivered by the single Judge on 30th May 2013 be set aside and that the applicants be granted leave to file the record of appeal out of time, on the ground that the learned Judge misdirected herself on points of law and fact when she held that the respondents’ application to dismiss the appeal for want of prosecution had merit. The application has been brought pursuant to Order 48, Rule 4 of the Supreme Court Rules Chapter 25 of the Laws of Zambia. The brief background was that the applicants filed the Notice of Appeal on the 21st December, 2012, following a Ruling by the High Court under Cause No. 2011/HP/260, delivered on the 14th December, 2012. The applicants failed to file the Record of Appeal within 60 days from the date of filing the Notice of Appeal, prompting the respondents to apply to dismiss the appeal for want of prosecution. R2 At the time of the hearing of the respondents’ application for dismissal of the appeal, the applicants had also filed an application for leave to file the Record of Appeal out of time and had already prepared the Record of Appeal. On the 26 th March, 2013 the respondents filed an application to dismiss the appeal for want of prosecution while the appellants only filed their application to file the record of appeal out of time on 25th April, 2013. The single Judge proceeded to hear the application for dismissal of the appeal. In considering the application for dismissal, the learned single Judge found that the applicants’ reasons for the failure were that there were ex-curia discussions between the parties and that the main matter was still active in the Court below. On these facts the single Judge found that the application to dismiss the appeal for want of prosecution had merit and dismissed the appeal accordingly. Dissatisfied with the Ruling of the Single Judge, the applicants have filed this Motion. R3 At the hearing of this Motion, Counsel for the respondent, Major Lisita raised a preliminary issue and had filed a Notice to this effect. We indicated that we would rule on the preliminary issue, which relates to the locus standi of the applicants, during the hearing of the main appeal. The applicants filed their Heads of Argument and Mr. Chenda entirely relied on the submissions. It was submitted that the single Judge did not consider the fact that the delay in this case was not inordinate since the 60 days expired on or about the 21 st February, 2013 and that their Motion for leave was filed on 26 th April, 2013. The applicants contended that the delay was occasioned by discussions for an ex-curia settlement which failed as well as subsequent difficulties in preparing the transcript of proceedings by the Court below. On the submission of hearing the matter on its merits, the applicants argued that it is in the interest of justice that the matter be heard on its merits. That the single Judge departed from the established practice of this Court which is inclined towards the hearing of matters on their merits notwithstanding R4 the default. They contended that the Single Judge did not address the factor of prejudice to the respondents, if any, if the appeal were allowed to be heard on its merits, when she dismissed the appeal for want of prosecution. It was submitted that Rule 12 of the Supreme Court Rules empowers this Court to extend time for taking any step in connection with prosecution of an appeal notwithstanding that the time limited for taking that step has expired. That Rule 12 provides that: “The Court shall have power for sufficient reason to extend time for making any application, including an application for leave to appeal, or for bringing any appeal, or for taking any step in connection with any appeal, notwithstanding that the time limited therefore may have expired, and whether the time limited for such purpose was so limited by the order of the Court or by the Rules or by any written law.” The applicants argued that there is a plethora of case law where this Court has extended time and granted leave to applicants to take steps for prosecution of appeals on the merits despite the lapse of the requisite time for taking such steps. The applicants cited, inter alia, the cases of D. E. Nkhuwa vs. Lusaka Tyre Services Limited1 and Nahar Investments R5 vs. Grindlays Bank International Zambia Limited², which are instructive on applications of this nature. The applicants relied heavily on the case of Stanley Mwambazi vs. Morester Farms Limited3 where this Court said at page 110 that: “Where a party is in default he may be ordered to pay costs, but it is not in the interest of justice to deny him the right to have his case heard. I would emphasise that for this favourable treatment to be afforded to the applicant there must be no unreasonable delay, no malafides and no improper conduct of the action on the part of the applicant. No such considerations apply in this case. The excuse given for failing to enter the appearance was that there were negotiations for a settlement and it is always the practice of the courts to encourage such negotiations.” Further, the applicants alluded to the fact that they had made a cross application to file the record of appeal out of time. They relied on the case of Star News Shops Ltd. vs. Stafford Refrigeration Ltd. (UPO (UK) Ltd and another, third parties L’unité Hermétique SA, fourth party)4, which they acknowledged related to Order 24 Rule 16 of the Rules of the Supreme Court. The gist of their argument is that the single Judge should not have punished the applicants for non-compliance but that she should have allowed the matter to proceed on the merits. R6 Counsel for the respondents filed Heads of argument which are on record. We have noted that arguments in reply to the preliminary issue were included. We will not consider these arguments at this stage for obvious reasons. With regard to the Motion, it was submitted that the learned single Judge was on firm ground when she ruled as she did and did not misdirect herself. Counsel submitted that the application by the respondent to dismiss the appeal for want of prosecution was brought under Rule 49 (5) and 55 of the Supreme Court Rules. Counsel for the respondents also referred us to Rule 54 and pointed out that no memorandum of appeal was filed by the applicants within 14 days of the date of appeal, which appeal was in total breach of Rule 49 (5) of the Supreme Court Rules. And that by the time the respondents filed the application to dismiss the appeal for want of prosecution on 26th March, 2013, the applicants had not filed their record of appeal, which was in total violation of Rule 55 and that no application was made by the applicants to extend time to file the record of appeal. That the applicants only woke up from their slumber upon becoming aware of an application to dismiss their appeal for want of prosecution. R7 That as the applicants were in total breach of the law when they failed to file both the memorandum of appeal and the record of appeal, the learned single Judge was on firm ground when she dismissed the appeal for want of prosecution. Counsel relied on the case of Nahar Investments Limited vs. Grindlays Bank2 which was also relied upon by the single Judge in her ruling. It was submitted that the applicants slept on their rights and only attempted to apply for extension of time when it was too late and they cannot blame the Court for their own lapses. It was submitted that, therefore, the Motion ought to fail with costs to the respondents. We have considered the Ruling of the single Judge and the submissions of learned Counsel for the parties. The argument by the applicants is that in the interest of justice the single Judge should have extended the time to enable the applicants file the Record of Appeal out of time so that the matter could be heard on its merit, as opposed to dismissing it. We are alive to the provisions of Rule 12, however, we must hasten to censure litigants that Rule 12 was not intended to allow R8 litigants and lawyers alike to ignore the time limits provided for certain steps to be taken only to later hide behind Rule 12. It is important that the guidelines which have been provided in cases such as Nahar are adhered to. We said in Nahar at Page 82: “We wish to remind appellants that it is their duty to lodge records of appeal within the period allowed, including any extended period. If difficulties are encountered which are beyond their means to control (such as the non-availability of the notes of proceedings which it is the responsibility of the High Court to furnish), appellants have a duty to make prompt application to the court for enlargement of time. Litigation must come to an end and it is highly undesirable that respondents should be kept in suspense because of dilatory conduct on the part of appellants. Indeed, as a general rule, 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. If the delay has been inordinate or if in the circumstances of and individual case, it appears that the delayed appeal has resulted in the respondent being unfairly prejudiced in the enjoyment of any judgment in his favour, or in any other manner, the dilatory appellant can expect the appeal to be dismissed for want of prosecution, notwithstanding that he has a valid and otherwise perfectly acceptable explanation.” And so whether there are ex-curia settlement discussions in progress, parties must watch the time as it continues to run regardless. As we emphasized above, it is not prudent for an appellant to sit back until there is an application to dismiss the R9 appeal before making the necessary application to file documents out of time. Looking at the facts of this case, we agree that this is a proper case where the principles enunciated by the case of Stanley Mwambazi vs. Morester Farms3 which has been alluded to by Counsel for the applicants should have been applied. In the Stanley Mwambazi Case3 we said that: “It is the practice in dealing with bona fide inter- locutory applications for courts to allow triable issues to come to trial despite the default of the parties; where a party is in default he may be ordered to pay costs, it is not in the interests of justice to deny him the right to have his case heard.” Indeed, the applicants cannot be said to be guilty of unreasonable delay, malafide or improper conduct. In view of this, the single Judge erred in dismissing the applicants’ appeal. Of course, we are in cognizance of the fact that the applicants were in default and when they realized that there was an application for dismissal of the appeal, they decided to make an application to file the record of appeal out of time. Certainly, the applicants’ application to file the record of appeal out of time was overtaken by events and did not deserve any hearing. And so R10 costs must be borne by the applicants who were guilty of default and who should not be seen to benefit from their own default. In sum, this Motion is allowed and the applicants are granted 14 days within which to lodge the record of appeal. Costs to the respondents to be taxed in default of agreement. ……………….……….…………………….…….. M. S. MWANAMWAMBWA SUPREME COURT JUDGE …………………………….……….. E. N. C. MUYOVWE SUPREME COURT JUDGE JUDGE …………….…………….……………………. E. M. HAMAUNDU ACTING SUPREME COURT R11