Kabayi Farming Limited v ZESCO Limited (CAZ/197/2017) [2019] ZMCA 444 (5 September 2019)

IN THE COURT OF APPEAL HOLDEN AT LUSAKA (Civil J urisdiction) BETWEEN: CAZ/197/2017 KABAYI FARMING LIMITED APPELLANT AND ZESCO LIMITED RESPONDENT BEFORE HONOURABLE MR. JUSTICE M. M KONDOLO SC, JA For the Appellant : Mr. V,A. L. Kabonga of Messrs George Kunda & Company For the Respondent: Mrs. M. S. Kambobe - In-House Counsel RULING LEGISLATION REFERRED TO: 1. The Court of Appeal Rules, Court of Appeal Act No. 7 of 2016, Laws of Zambia 5. The Constitution of Zambia (Amendment) Act, 2015 CASES REFERRED TO: 1. Stanley Mwambazi v Morester Farms Limited (1977) ZR 108 2 . Nahar Investments v Grindlays Bank and Twampane Mining Co Operative Society Limited VE and M Storti Mining Limited SCZ/20/2011(1984)ZR; and Twampane Mining Co-operative Society Limited v E & M Storti Mining Limited SCZ/20/2011 R2 of 12 3. John Sangwa and Simeza, Sangwa & Associates v Hotellie r Limited&. Odys Work Limited [SCZ/8/402/2012] [2014] ZMSC 7 4. Finance Bank v Monokandilos 2001 (ZR) 6 . Kapoko v People (2016/CC/0023) [2016] ZMCC 6 7 . Access Bank (Z) Limited v Group Five/Zcon Business Park Joint Venture (sued as a firm) SCZ/8/52/2014 8 . Linus Chanda v ZESCO Ltd APPEAL NO. 11/2017 9. Rachael Lungu Saka, Hildah Bwalya Chomba v Attorney General CAZ/08/059/2017 10. Revici v Prentice Hall [1969]1 WLR 157, 159 This is the Res pondents application to dismiss the appeal for want of prosecution pursuant to Order X Rule 7 Court of Appeal Rules (CAR). The application was supported by an affidavit filed on 20th July, 2018 and sworn by counsel for the Respondent Mweetwa Kambobe, which attested that the Appellant had not filed the record of appeal within 60 days as required by the rules and had not taken any steps to prosecute the appeal. The Appellants, on 10th August, 2018 filed an affidavit in opposition sworn by their counsel Valentine Kabonga in which he deposed that the delay in filing the record of appeal was on account of the fact that the record of proceedings for the high Court was not ready. He stated that the proceedings could not be prepared because the file could not be located and he had continued following up the m atter both a t the High Court and the Court of Appeal and he referred to exhibit "VALK" 1 of his a ffidavit. R3 of 12 At the hearing the Respondent relied on the affidavit in support, its arguments filed on 20t h July, 2018 and on its viva voce submissions. Counsel for the Respondent argued tha t whilst th ere was sufficient authority 11l guiding that m atters must, as far as possible , be h eard on their m erits, the courts had taken a stance that rules of procedure must b e complied with. She submitted that matters could b e dismissed for want of prosecution where there was dilatory conduct and s h e referred, inter alia, to the cases of Nahar Investments v Grind.lays Bank and Twampane Mining Co Operative Society Limited VE and M Storti Mining Limited SCZ/20/201112 1. Counsel pointed ou t that the Appella nt h a d not prosecuted th e a ppeal for one year a nd had not even endeavoured to file an y application for extension of time within which to file their Record of Appeal. It was submitted justice required that courts must never provide favour to litigants and their Counsel wh o exhibit scanty respect for rules of procedure and a delay of on e year, such as in this instance warranted that the matter be dismissed for want of prosecution. Mr. Kabonga on behalf of the Appellants relied on the affid avit in opposition and on his a rgum ents filed on 10th August, 2018. His written arguments referred to Order XIII Rule 3 CAR which states that where there R4 of 12 is sufficient reason, this court has power to extend time for taking any step in or in connection with any appeal despite the prescribed time for taking that step h aving expired. He stated that where a party has defaulted it could be condemned in costs as was stated in the case of Stanley Mwambazi v Morester Farms Limited (supra (1l). He a lso referred to the case of John Sangwa and Simeza, Sangwa & Associates v Hotellier Limited & Odys Work Limited 13 l. It was submitted that though default may arise, the most important principle is that the decision of the Court should be in the interest of justice. He stated that the Appellants conduct had n ot been improper because the file went missing at some point and time lapsed while trying to locate the file. He further relied on Order x Rule 6 CAR and submitted that the authorities were very clear on the need to do justice and there was thus need for this matter to be heard on the m erits and not be decided on technicalities. He accepted that the Supreme Cour t does not encourage laxity by practitioners in complying with procedure but th at the same Supreme Court has stated that if there are good reasons for delay in filing a Record of Appeal and there is high probability of success on app eal, the party applying for an exten sion of time s hould be heard. His written arguments closed by stating that "there is in fact an application to file in the Record of Appeal out of time". At the hearing Mr. Kabonga submitted that the real crux of the matter was that no record of proceedings was m ade available to the Appellants even RS of 12 as they sought hard to obtain it. He told the court that the Appellants humble request was that the Appellant be allowed to file the Record of Appeal and comply with other requirements. He referred to what he described as a leading case on delay, the case of Finance Bank v Monokandilos 141 in which the High Court allowed a delay of 10 years and ordered the parties to proceed on merit. He also placed reliance on the Mwambazi Case (supra). He stated that the case before Court was very serious because the Appellant is claiming a huge sum of money from the Respondent and the case should therefore, not be defeated at the interlocutory stage Mrs. Kambobe on behalf of the Respondent replied by saying that if this case was a serious matter as stated by counsel for the Appellant, counsel would have shown and exhibited more serious efforts to show its pro-activeness in protecting the Appellant's interest. She pointed out that the Appellants arguments in opposition were cou ched as though the Appellant is applying for an extension of time and asking the Court should grant them the discretion to apply out of time. She opined that th e Appellant simply reacted to the application to dismiss the action for want of prosecution and came late in the day as the Appellant s howed absolutely no interest in pursuing this matter which they h ad described as a serious matter. She submitted that there has been unreasonable delay and improper conduct on the part of the Appellant and closed by stating that this court cannot be guided by the High Court case of Finance Bank v Monokandilos (supra) as the Supreme Court has already provided guidance on this issue. R6 of 12 We have considered the arguments advanced by the parties as well as the authorities to which we have been referred. We shall begin by addressing the assertion in the Appellants arguments in opposition where on p age 4 it is stated as follows; "In the premises we beseech this honorable Court to allow the matter to be prosecuted as there is in fact an application to file in the record of appeal out of time". We have seen no such application pending hearing and if it indeed exists, counsel did not state when the application was filed. However, paragraph 11 of the affidavit in opposition which states that, "That I will be applying for leave to file the record of appeal out of time" probably provides the actual state of affairs being that, no application for such leave was filed and the desire to do so is purely in reaction to the Respondents application to dismiss the appeal for want of prosecution. It is trite that, as far as possible, matters must be heard on the merits. This principle has even been imported into the Constitution of Zambia, which at Article 118 (2) (e) 15 1 states that in exercising judicial authority, the courts shall administer justice without undue regard to procedural technicalities. The article was interpreted by the Constitutional Court in the case of Kapoko v People 16 1 where it opined as follows; 1. Article 118(2) (e) is a guiding principle of adjudication framed in mandatory terms. It is a basic truth applicable to different R7 o f 12 situations. The Article's beneficial value is achieved well if it is applied in an eclectic fashion depending on the nature of the rule before it. 2. Article 118(2) (e) is not intended to do away with existing 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. 3 . Whether a particular provision is a technicality may be determined from its form, its content and its application in the peculiar circumstances of the issue before the court. 4. The rules of procedure in criminal trials as a whole, are not in themselves technicalities and Article 118(2) (e) is not intended to tum them into technicalities that fall within its ambit. Sections 207 and 208 of the Criminal Procedure Code are necessary rules of procedure and not mere technicalities. The main thrust of the Appellants argument 1s that the delay was caused by circumstances quite beyond its control and when analysed correctly, it is suggested that the delay was caused by the Courts failure to provide a typed record of proceedings, inter alia, because the file was missing. The affidavit in opposition states that counsel did on numerous occasions try to obtain a record of proceedings from the High Court. He has provided no proof of the said efforts and did not even state when the said efforts were made and who he spoke to. He further states that the file could RS of 12 not be located for a period of time. It is not clear whether the file was eventually located and, if so, when it was located. The only document exhibited to substantiate the facts averred in the affidavit was exhibit VALK 1 which reads as follows; "There are no record of proceeding that needs to be typed. There is only an application to dismiss matter for want of prosecution which is coming up on 15th August so what need be filed is the Affidavit in Opposition." Kapuka Though bearing an official stamp of the Court of Appeal Civil Registry, VALK 1 is untitled and signed by a person called Kapuka wh ose position or rank is not stated but whom we know as a clerk of court. The document is not addressed to anybody in particular and above all makes no reference to any particular case or cause number. The material part of the document simply states as follows, "There are no proceeding that needs to be typed ...... ". What this means is quite unclear, but, by no stretch of imagination does it mean that the case record was lost, misplaced or unavailable. The Appellant has not provided any material supporting its claim that the record was m1ss1ng. I agree with counsel for the Respondent that the Appellants have approached this application as though it were an application for extension of time. The Appellants predicament is, however, quite understandable because satisfying the Court that its failure to prosecute the appeal was unintentional and beyond its control requires the same standard or reasons one would provide in an application for extension of time, when showing the court that that there is sufficient cause to grant the extension. R9 of 12 The point is that a valid and acceptable reason must be given for the delay. The case of Nahar Investments v Grind.lays Bank International Zambia Ltd (Supra) cited by the Respondent addressed this issue thus; "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 delay 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 ....... " The Constitutional Courts holding in the Kapoko case made it clear that Article 118(2) (e) (supra) is not intended to do away with existing RlO of 12 principles, laws and procedures, even where the same may constitute technicalities. The purpose of the article is to ensure that technicalities are not given undue regard. In the case of Access Bank (Z) Limited v Group Five/Zcon Business Park Joint Venture (sued as a firm) 17 1 the Supreme Court held as follows; " .... Matters should, as much as possible, be determined on their merits rather than be disposed of on technical or procedural points. This, in our opinion, is w hat the ends of justice demand. Yet, justice also requires that this court, indeed all courts, must never provide succour to litigants and their counsel who exhibit scant respect for rules of procedure. Rules of procedure and timeliness serve to make the process of adjudication fair, just, certain and even-handed. Under the guise of doing justice through hearing matters on their merit, courts cannot aid in the bending or circumventing of these rules and shifting goal posts, for while laxity in application of the rules may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules ..... " In casu, the Appellant h as failed to support its claim that the case record was lost or misplaced hence resulting in the Court failing to provide a record of the High Court proceedings and thereby crippling the Appellants a bility to prosecute this appeal by filing the record of appeal within the stipulated period. Rll of 12 Further, quite contrary to the advice provided in the Nahar Case (supra), counsel for the Appellant did n ot bother, for almost 10 months to apply for an extension of time and after the window within which to do so expired, still did not bother to apply for leave to file its application for an extension of time and has not done so to date. An application for leave would have b een a valid step in prosecuting the appeal. In reaction to the application to dismiss the m atter for want of prosecution the Appellant says that it n ow inte nds to apply for leave. The rules regarding the filing of records of appeal and applications for extension of time contained in the Court of Appeal Rules are clear. In the case of Linus Chanda v ZESCO 18 l this court said as follows; "Rules of Court must be obeyed and the court must therefore exercise it's power to grant extensions of time sparingly. We thus reiterate the warning we sounded in our Ruling in the case of Rachael Lungu Saka, Hi ldah Bwalya Chomba v Attorney General f9J; "We however, take this opportunity to warn parties and indeed the learned Advocates representing parties before this Court that in future where there is a dilatory conduct and deliberate noncompliance with the rules of procedure in particular CAR, the parties shall bear the consequences as we shall not hesitate to refuse applications as the case in casu and consequently dismiss the appeals" • R12 of 12 We conclude by echoing Denning W in the case of Revic i v Prentice Hall 1101 where he said, "nowadays we regard time very differently from the way they did in the nineteenth century. We insist on the rules as to time being observed. We have had occasion recently to dismiss many cases when people have not kept rules as to time." In the premises, the Appellant having failed to prosecute this appeal for a period close to 12 months and having failed to provide acceptable reasons for the failure to do so, we find that the delay in failing to prosecute this appeal is inordinate and the appeal is consequently dismissed. Costs awarded to the Respondents. Dated at Lusaka this 5 th day of September, 2019 = ~ == • ~ ....... • "c.s.,_ .. .. . . .... ... ... . .. . M. M. KONDOLO, SC COURT OF APPEAL JUDGE