Katenge Resources Ltd v Avarmma Mining Company Ltd and Ors (CAZ 8 78 of 2017) [2017] ZMCA 144 (28 November 2017)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/078/2017 HOLDEN AT LUSAKA (Civil Jurisdiction) ^APp^ Statul 2 8 NUV 2L)U khl I Instrument No. 6 Bi­ sections l'&sT Minerals Act No.~7 Of!2£ii ines And Large Scale Prospecting Licence No. 16199-HQ-LPL An Appeal against the Decision of the Hon. Minister of Mines and Minerals Development IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: AND BETWEEN: KATENGE RESOURCES LIMITED APPELLANT AND AVARMMA MINING COMPANY LIMITED ZCCM-INVESTMENTS HOLDINGS PLC ATTORNEY GENERAL 1STRESPONDENT 2nd RESPONDENT 3rd RESPONDENT Before Justice F. M. Chishimba in Chambers. For the Appellant : Mrs. P. C. Hampungani of Messrs Milner Katolo Paul Legal Practitioners For the lstRespondent : Mrs. K. M. Chileshe of Messrs Mweemba Chashi & For the 2ndRespondent : Mrs. J. Ndovi of Messrs John Kaite Legal Partners For the 3rdRespondent : N/A Practitioners RULING CASES REFERRED TO: -R2- 1. Finance Bank Zambia Limited Vs. Dimitrios Monokandilos Filandria Kouri (2012) Z. R. 484 LEGISLATION AND WORKS REFERRED TO: 1. 2. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 The Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia The application by the Appellant is for leave to extend the time within which to file the record of appeal. It was made pursuant to Order 13 Rule 3 and Order 10 Rule 2 of the Court of Appeal Rules as read with Section 37 of the Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia. The application was supported by an amended affidavit dated 27th September, 2017. According to the supporting affidavit a notice of appeal was filed on 29th March, 2017. The Appellant sought to appeal against a Judgment of the lower Court dated 15th March, 2017. Due to the delay in the compilation of the proceedings by the Court, the Appellant could not file the record of Appeal within the requisite time. Consequently the Appellant sought and was granted an extension of time within which to file the record of appeal. The -R3- extended time elapsed on 3rd July, 2017 which date was a public holiday. It was stated that it was discovered that the filing clerk at the Appellant’s advocates firm had not filed the record of appeal owing to the fact that he had a bereavement and had travelled. Counsel for the Appellant only discovered that the record of appeal was not filed after returning from a site visit. On 6th July, 2017 the 1st Respondent filed into Court an application to dismiss the appeal for want of prosecution. On the same day the Appellant filed an application for leave to further extend the time within which to file the record of appeal. By a Ruling dated 15th September, 2017 the Court dismissed the 1st Respondent’s application to have the matter dismissed for want of prosecution and directed the Appellant to make a proper application as the application for extension of time had been made after the lapse of the extended time. The 1st Respondent filed into Court an affidavit in opposition dated 2nd November, 2017. It was stated that the Appellant has failed to file its record of appeal and heads of arguments from the -R4- time it filed its notice of appeal in March, 2017. Further, that the Appellant had failed to file the record of appeal despite the court having extended time within which to file the record of appeal on two occasions. The Court was urged to dismiss the Appellant’s application with costs. In its affidavit in reply the Appellant stated that it has demonstrated to the Court that ‘circumstances’ made it difficult to file the record of appeal. Further, that the Respondents will not suffer any prejudice should the Court grant the sought order. In addition, that the record of appeal is currently ready for filing. When the matter came up for hearing Counsel for the Appellant while referring to the case of Finance Bank Zambia Limited Vs. Dimitrios Monokandilos Filandria Kouri I1) submitted that what constitutes inordinate delay is a question of fact to be resolved on the facts of each particular case. Counsel further argued that a day’s delay cannot amount to inordinate delay. In the above aforementioned ruling I had granted the Applicant herein leave to file the application for extension of time -R5- within which to file the record of appeal out of time within 14 days. The Applicant accordingly filed the application for extension of time. I have carefully considered the application by the Appellant for leave to extend the time within which to file the record of appeal. Order 13 Rule 3(1) (a) and Rule 3 (3) of the Court of Appeal Rules Statutory Instrument No. 65 of 2016 empowers the Court to extend the time for taking any step in connection with an appeal. Order 13 Rule 3 (3) of the Court of Appeal Rules specifically stipulates that; “The Court may for sufficient reason extend time for making an application, including an application for leave to appeal, or for bringing an appeal, or for taking any step in or in connection with any appeal, despite the time limited having expired, and whether the time limited for that purpose was so limited by the order of the Court, by these Rules, or by any written law.” The record will show that that the Appellant was granted an extension of 14 days within which to file the record of appeal out of time. It is not in dispute that the Appellant failed to file the record of appeal within the extended time. The extended time elapsed on 3rd July, 2017. The 3rd and 4th of July, 2017 were public holidays. The record will further show that on 6th July, 2017, the Appellant -R6- lodged an application for extension of time within which to file the record of appeal out of time. In my Ruling dated 15th September, 2017 I directed the Appellant to make a proper application for leave to file the record of appeal out of time as the same was not properly before the Court. Hence this application by the Appellant. The issue, in my view, is whether the delay by the Appellant in filing the record of appeal is inordinate and prejudicial to the 1st Respondent. The record will show that the initial reason advanced by the Appellant for its failure to file the record of appeal is the fact that there had been a delay in compiling the record of proceedings in the court below. Further, after the Appellant failed to file the record of appeal by 3rd July, 2017 an application was made to extend the time within which to file the record of appeal. I am of the view that there was no inordinate delay by the Appellant to lodge an application to file the record of appeal out of time; albeit the initial application was not properly before the Court. I am of the further view that the Respondents would not be prejudiced should the Appellant be granted the sought order. -R7- For the foregoing reasons, I accordingly order that the Appellant do file the Record of Appeal together with the heads of arguments within 7 days from date hereof, failure to which the appeal shall stand dismissed for want of prosecution. Dated the 28th day of November, 2017. Hon. Mrs. Justice F. M. Chishimba COURT OF APPEAL JUDGE