Kalunga Chansa v Evelyn Hone College of Applied Arts and Commerce (CAZ/8/254/2017) [2019] ZMCA 398 (11 July 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: CAZ./8/254/2017 CORAM: Mchenga, DJP, Mulongoti and Lengalenga, JJA On 24th April, 2019 and 11th July, 2019. For the Applicant: Mr. P. Chileshe - Messrs Mbambara Legal Practitioners For the Respondent: Mr. J. M. Chimembe - Messrs JMC & Associates RULING LENGALENGA, JA delivered the Ruling of the Court. Cases referred to: 1. SINIM ENTERPRISES ZAMBIA LTD & ANOR v STANBIC BANK ZAMBIA LTD-CAZ/08/180/2017 2. RACHAEL LUNGU SAKA v HILDA CHOMBA & ANOR - CAZ/08/059/2017 3. ACCESS BANK (Z) LTD v GROUP FIVE/Z CON BUSINESS PARK JOINT VENTURE (SUING AS A FIRM) (2016) ZR 24 Rl 4. RAM AUERBACH v ALEX KAFWATA - SCZ APPEAL NQ 65 OF 5. SONNY MULENGA & ANOR v INVESTRUST MERCHANT BANK LTD (1999) ZR 35 6. ZAMBIA REVENUE AUTHORITY v POST NEWSPAPER - SCZ JUDGMENT NQ 18 OF 2016 7. D. E. NKHUWA v LUSAKA TYRE SERVICES LTD (1977) ZR 43 8. BONAR TRAVEL LTD v SUSA (1993 - 94) ZR 98 9. ZAMBIA REVENUE AUTHORITY v JAYESH SHAH (2001) ZR 60 Legislation referred to: 1. THE COURT OF APPEAL ACT, NQ 7 OF 2016 2. THE COURT OF APPEAL RULES - ORDER 10 RULE 2(8) 3. THE CONSTITUTION OF ZAMBIA (AMENDMENT) ACT, NQ 2 OF The Applicant brought this application by way of notice of motion to renew notice of application for extension of time within which to file the record of appeal and heads of argument pursuant to section 9(b) of the Court of Appeal Act, NQ 7 of 2016 and Order 10 Rule 2(8) of the Court of Appeal Rules. The said application is supported by an affidavit sworn by Kalunga Chansa, the Applicant herein. By the said application, the Applicant is challenging the ruling dated 16th February, 2018 delivered by the single judge of this Court. R2 The brief background to this application is that on 21st September, 2017 the Applicant herein lodged a Notice of Appeal and Memorandum of Appeal with an intention of challenging the decision of the Industrial Relations Division of the High Court. However, when the Applicant's advocates attempted to file the record of appeal and heads of argument, they were informed by the registry staff that they were out of time by about two days. Consequently, on 29th November, 2017 the Applicant's advocates filed an application for extension of time within which to file the said documents. However, when the application came up for hearing before the single judge, the Applicant's advocate was not in attendance as he claimed to have been unaware of the date of hearing. Unfortunately, since the reason for the non-attendance was not communicated to the single judge, he proceeded to hear the Respondent's application by which its advocates contended that the Applicant's application was brought under a wrong provision of the law, namely Order 7 Rule 1(1) of the Court of Appeal Rules, instead of Order 13 Rule 3(1) of the said Rules. R3 After considering the Respondent's application, the single judge of this Court by a ruling dated 16th February, 2018, struck out the Applicant's application on the ground that the same was brought under a wrong provision of the law. It is therefore the Applicant's contention that his application was brought pursuant to a correct provision of the law that was cited . Order 7 Rule 1(1) of the Court of Appeal Rules deals with interlocutory applications and provides as follows: "1(1) An interlocutory application under the Act shall be by notice of motion or summons in substantially Form III and Form IV, respectively set out in the First Schedule." Whereas Order 13 Rule 3(1) specifically deals with extension of time and provides as follows: "3(1) The Court may, for sufficient reason extend the time for- (a) making application, including an the application for leave to appeal; (b) bringing an appeal; or (c) taking any step in or in connection with an appeal." R4 It is the Applicant's contention that he complied with the Rules when he filed his application for extension of time within which to file the record of appeal and heads of argument under Order 7 Rule 1(1) to move the single judge to hear it. To support this argument, the Applicant relied on the case of SINIM ENTERPRISES ZAMBIA LTD & ANOR v STANBIC BANK ZAMBIA L TD1 in which this Court acknowledged the Applicant's use of summons to move the Court when it stated that: "Since this is an interlocutory application before a single judge of the Court, the Court has to be moved in accordance with Order 7 Rule l{i) Court of Appeal Rules by way of summons substantially in Form 4 of the First Schedule." The case of RACHAEL LUNGU SAKA v HILDA CHOMBA & ANOR2 was also relied on by the Applicant to fortify his argument that his application for extension of time was in compliance with provisions of Court of Appeal Act and Rules. The Applicant therefore prays that his application be granted. The Respondent filed an affidavit in opposition to the application and heads of argument. In the affidavit in opposition sworn by one Joseph Mwila Chimembe, Counsel seized with conduct of this matter on behalf of RS the Respondent, he averred that the Applicant's advocate has not exhibited any proof of steps that he took to secure the transcript of proceedings from the court within the stipulated sixty (60) days. He further averred that he believes that even if the time was extended, the appeal would be a mere academic exercise as it has no prospects of success as the issues being raised are already settled at law. In the Respondent's heads of argument, it is contended that it is not enough to allege that he requested for the transcript within the sixty (60) days, and that the effort made could have been shown by the Applicant's advocate exhibiting letters requesting for the transcript written to the Registrar of the court below. To support this argument, reliance was placed on the case of ACCESS BANK (Z) LTD v GROUP FIVE/Z CON BUSINESS PARK JOINT VENTURE (SUING AS A FIRM)3 where the Supreme Court stated that: "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 and timelines serve to make the process of adjudication fair, just, certain an even handed under the guise of doing justice through hearing matters on their merit. Courts cannot aid in bending or circumventing of these rules and shifting goal posts, while laxity in the application of the rules may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. A fairly well established corpus juris on R6 the effect of failure to comply with rules of court exist in this In the case of RAM AUERBACH v ALEX jurisdiction. KAFWATA4 , we pointed out that litigants default at their own peril since any rights available as of course, to a non defaulter are normally jeopardised." In the present case, Mr. Chimembe argued that upon realisation that the transcript was not forthcoming, it would have been prudent for the Applicant to file an application for extension of time before the lapse of sixty (60) days. On the other hand, it is the Respondent's contention through Counsel that an extension of time within which to file the record of appeal is futile and will prove to be a mere academic exercise as the exhibited grounds of appeal in the Notice of application for extension of time for filing the record of appeal and heads of argument filed on 29th November, 2017 have no reasonable prospects of success. He submitted that, therefore, in the exercise of this Court's discretion in granting of the extension of time, certain aspects of the appeal must be carefully considered. Mr. Chimembe submitted that the intended appeal has no prospects of success because the main bone of contention has already been the subject of numerous Supreme Court decisions and that thus the law on this matter is already settled and that this Court being bound by principles of R7 stare decisis and judicial precedents is unlikely to determine this matter any differently from the court below. To fortify his argument, he relied on the case of SONNY MULENGA & ANOR v INVESTRUST MERCHANT BANK L TD5 where it was held inter alia that: "In exercising its discretion whether to grant a stay or not, the court is entitled to preview the prospects of the proposed appeal." He further relied on the case of ZAMBIA REVENUE AUTHORITY v POST NEWSPAPER6 where the Supreme Court stated that: "We wish to emphasize that the prospects of success of the pending appeal, is a key consideration in deciding whether or not to stay execution of the judgment appealed against." In concluding his arguments, Mr. Chimembe submitted that in view of the cited cases and the arguments advanced by the Respondent, the Applicant has not proved that he had challenges in complying with the rules of this Court in filing the record of appeal within the stipulated time. He, therefore, prays that this Court dismisses the application with costs. In reply to the Respondent's contention that the application for extension of time should fail because the Applicant has not adduced R8 evidence of what efforts he made to try and get the transcript of proceedings, in the form of correspondence, Mr. Chileshe submitted that it is common knowledge that the courts are overburdened with such requests from litigants. He, therefore, urged this Court to take judicial notice of the fact that the courts below delay in availing transcript of proceedings to litigants in a number of cases. He further submitted that the Applicant's failure to file the record of appeal and heads of argument within the sixty (60) days period was not deliberate but technical. He submitted that the Applicant was under an innocent but mistaken belief that the deadline was 21st November, 2017 because the Notice of Appeal and Memorandum of appeal were stamped 21 st September, 2017 by the Court of Appeal Registry whilst the Deputy Registrar's stamp in the court below was 18th September, 2017. Mr. Chileshe further submitted that a delay of two days should not be considered fatal. It is his contention that Order 13 Rule 3 was included in the Court of Appeal Rules as it was envisaged that litigants may find themselves in situations where they are unable to file documents within the stipulated time frame due to circumstances beyond their control. R9 He submitted that no prejudice will be caused to the Respondent if the application is granted as the Respondent will be at liberty to file its heads of argument in response. With regard to the ACCESS BANK (Z) LTD case cited by the Respondent, he submitted that it does not apply to this case. He distinguished the present case from that case by arguing that a delay of two days due to a technicality cannot be said to be scant respect for rules of procedure and timelines on the part of the Applicant. To fortify his argument he relied on the cases of D. E. NKHUWA v LUSAKA TYRE SERVICES LTD7 and BONAR TRAVEL LTD v SUSA8 , where the Supreme Court, inter alia granted extension of time for taking steps in matters after the time has expired. He further relied on Article 118(2)( e) of the Constitution of Zambia (Amendment) Act NQ 2 of 2016 that requires the courts to administer justice without undue regard to procedural technicalities. He buttressed this argument by referring this Court to SINIM ENTERPRISES ZAMBIA LTD case that he earlier cited where a single judge of this Court when dealing with an application for extension of time stated that: "My understanding is that it is in the interest of justice that to defeat procedural lapses should not be invoked .. .. RlO applications or matters before courts of law unless the lapses went to the jurisdiction of the court or is likely to cause substantial injustice or prejudice to the opposite party. None of the aforestated has been put forward by the Respondent in aid of the preliminary issue." With regard to Mr. Chimembe's submission that the intended appeal has no prospects of success, Mr. Chileshe submitted that this Court would only be in a better position to appreciate the grounds of appeal once the record of appeal and heads of argument are allowed to be filed . He dismissed the authorities of SONNY MULENGA & ANOR v INVESTMENT MERCHANT BANK LTD and ZAMBIA REVENUE AUTHORITY v POST NEWSPAPER, as being irrelevant to this case as they deal with applications to stay pending appeal. He urged this Court to grant the application for extension of time to enable the appeal to be heard on the merits in the interest of justice and to condemn the Respondent in costs. We have considered the Applicant's application for extension of time within which to file record of appeal and heads of argument, the affidavit evidence, respective arguments by the parties hereto and authorities cited. At the outset, we wish to state that we noted from the affidavit evidence and the Applicant's arguments that he was out of time in filing the record Rll of appeal and heads of argument only by two days, as the time for the appeal started running from the time the Registrar of the Industrial Relations stamped the Notice and Memorandum of Appeal. We agree with Mr. Chileshe that a delay of two days due to a technicality should not be considered as an exhibition of scant respect for rules of procedure and timelines as envisaged by the Supreme Court in the ACCESS BANK (Z) LTD case. To support our position, we rely on the case of ZAMBIA REVENUE AUTHORITY v JAYESH SHAH9 where the Supreme Court held that: "Cases should be decided on their substance and merits where there has been only a very technical omission or oversight not affecting the validity of the process ..... the rules must be followed but the effect of a breach will not always be fatal if the rule is merely regulatory or directory." We also considered the fact that Article 118(2)( e) of the Constitution of Zambia (Amendment) Act requires courts to administer justice without undue regard to procedural technicalities. We noted that Mr. Chimembe further argued that the Applicant's intended appeal has no prospects of success and relied on the SONNY MULENGA and ZAMBIA REVENUE AUTHORITY v POST NEWSPAPER ' . R1 2 cases which dealt with an application for an order for a stay of execution of judgment. We must hasten to point out that the requirement for prospects of success of an appeal is contained in section 13 of the Court of Appeal Act and is applicable in applications for leave from decisions of this Court to the Supreme Court. Therefore, we are of the view that it would be unfair to attach that requirement to this application for an order for extension of time within which to file record of appeal and heads of argument. Furthermore, we find that a delay of two days cannot be considered to be inordinate, unreasonable and inexcusable. We, further, noted from the Respondent's arguments that there was no indication that there would be any prejudice likely to be caused to the Respondent if the application is granted. The Applicant herein has applied for an order for extension of time within which to file the record of appeal and heads of argument as aforestated. This Court has been clothed with jurisdiction to grant such orders and under Order 13 Rule 3(1)(c) of this Court's Rules, this Court may, for sufficient reason extend time within which a litigant can take any step in or in connection with an appeal. . ' • R13 We considered the reasons advanced by the Applicant for the delay in filing the requisite documents to proceed with his appeal and we find them to be sufficient in terms of Order 13 Rule 3(1)(c) of the Court Rules. In the circumstances, therefore, based on the reasons aforestated and the authorities cited, we find no reason why we should not allow the application. We, accordingly, allow the application and hereby direct the Applicant to cause the relevant documents to be filed within thirty (30) days from the date of this Ruling. Costs to be in the cause. C. F. R. Mchenga DEPUTY JUDGE PRESIDENT ... ~~'. ..... COURT OF APPEAL JUDGE F. M. Lengalenga COURT OF APPEAL JUDGE