Legal Resources Foundation Ltd v Norwegian Ministry of Foreign Affairs (CAZ 8 314 of 2017) [2018] ZMCA 381 (8 June 2018)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/8/314/2017 HOLDEN AT LUSAKA (Civil Jurisdiction) OF APPS^4 BETWEEN: LEGAL RESOURCES FOUNDATION LIMITED cwiLREGiSTRnx^pLICANT ... ~ AND NORWEGIAN MINISTRY OF FOREIGN AFFAIRS RESPONDENT Before the Hon. Mrs Justice J. Z. Mulongoti in Chambers on the 8th day of June, 2018. For the applicant: For the respondent: Mr. Mwamba, Simeza Sangwa & Associates Mr. Bwalya, Solly Patel, Hamir & Lawrence RULING Cases referred to: 1. Chisanga Mushili Mulenga v. Zesco Limited SCZ/8/49/2015 (unreported) 2. Rachael Lungu Saka v. Hilda Bwalya Chomba and Attorney General CAZ/08/059/2017 Legislation referred to: 1. The Court of Appeal Rules 2016, Statutory Instrument No. 65 of 2016 This is the applicant’s application for extension of time pursuant to Order XIII rule 3 (3) of the Court of Appeal Rules (CAR). At this stage, it is necessary to say a little about the background leading to this application. On 11th October, 2017, the High Court passed a ruling -Rl- setting aside the applicant’s originating process under cause number 2013/HP/1447 for irregularity which left the applicant aggrieved. The High Court did not grant the applicant leave to appeal. However, the applicant proceeded to lodge an appeal without leave. When the applicant realised its mistake, it went back to the High Court and obtained an ex parte Order for Leave to Appeal dated 3rd November, 2017. The applicant subsequently lodged a fresh appeal on 13th November, 2017. After filing the Notice and Memorandum of Appeal, the applicant failed to file the Record of Appeal within the 60 day period prescribed by the Rules of this Court. The applicant has now applied for extension of time. The application is captioned ‘Summons for Leave to File Notice of Application for Extension of Time Out of Time pursuant to Order XIII rule 3 (3) of the Court of Appeal Rules, 2016’. The application is supported by an affidavit captioned ‘Affidavit in Support of Summons for Leave to File Record of Appeal Out of Time’ sworn by Jeffery Chimankata, an advocate in the firm representing the applicant. The gist of the affidavit is that the applicant could not obtain the transcript of proceedings from the High Court as court officials repeatedly advised the applicant’s counsel that they were having challenges reading the judge’s handwriting. He also deposed that the application for extension of time was not made within 21 days after expiry of the 60 day period but maintains that the delay in failing to do so is not deliberate or as a result of laxity on counsel’s part. The respondent has opposed the application. To that effect, the respondent filed an affidavit on 19:h April, 2018, deposed by the respondent’s counsel, Steven Bwalya. The main ground of objection is that the applicant has not provided any documentary evidence to support its averment as regards the -R2- reason for the delay that it engaged the court officials in an attempt to access the transcript of proceedings from the High Court. Thus, the applicant has not provided sufficient reason for the delay of about 100 days from the time the Appeal was lodged. It is further deposed that the action in the High Court was commenced in 2013 and the respondent has ceased operations in Zambia and has since disposed of its properties. In support of the application, the applicant’s counsel has filed skeleton arguments. It is submitted that this Court has discretion to grant the leave sought to extend time as provided by Order XIII rule 3(3) CAR. Counsel reiterates that the reason for the delay is legitimate and relies on the case of Chisanga Mushili Mulenga v. ZESCO Limited1 as authority. In addition, counsel argues that the delay is not inordinate in that counsel acted promptly to apply for extension of time when the preparation of the transcript of proceedings went beyond 21 days after the expiry of 60 day period within which the record should have been filed. Further, that no prejudice will be occasioned on the respondent if the application is granted. The respondent’s counsel filed written submissions in response to the applicant’s arguments quoting various authorities and Rulings of this Court, in extensio, which I have taken note of. The gist of his arguments is that the applicant has not demonstrated reasonable excuse for having failed or delayed to file the Record of Appeal and Heads of Argument within the prescribed period as required by Order XIII rule 3 (3) CAR. The reasons cited in the Affidavit in Support would not be perfectly termed as sufficient to warrant the Court granting the order sought. That the applicant failed to act promptly when it failed to apply for enlargement of time before the expiiy of 60 days when it realised that it could not beat the deadline. It -R3- also failed to apply for extension of time within 21 days after the 60 day period lapsed. A cumulative 101 days elapsed from the time the applicant filed its Appeal to the time it made this application. It is submitted that the applicant has consistently flouted the Rules of this Court and urged the Court not to aid the applicant as a defaulting litigant in view of the indication by this Court in Rachael Lungu Saka v. Hilda Bwalya Chomba (Sued as Administratrix of the estate of the late Jean M Chomba)2 not to entertain such applications. At the hearing, the applicant’s counsel, Mr. Mwamba, informed the Court that the application was for extension of time within which to file the Record of Appeal and Heads of Argument out of time pursuant to Order XIII rule 3(3) CAR. It is submitted that the Court has discretion to enlarge time when the applicant shows that there is sufficient reason for doing so. He referred the Court to the case of Rachael Lungu Saka v. Hilda Bwalya Chomba (Sued as Administratrix of the estate of the late Jean M Chomba).2 That the applicant has shown sufficient reason for failing to file the Record within time which is that it failed to obtain the transcript of proceedings on time. In addition, this Court and the Supreme Court have emphasised the need for matters to be heard on the merits. Therefore, the matter cannot be defeated by mere technicality but should be heard by this Court because the appeal raises novel issues that require the Court to pronounce itself on. In response, the respondent’s counsel, Mr. Bwalya, has relied on the Affidavit in Opposition and Skeleton Arguments filed on 10th May, 2018 which he augmented orally. Counsel submits that the applicant has consistently failed to comply with the Rules of the Court that would have facilitated a prompt prosecution of the Appeal. This is evident from the -R4- Order under which the application is made, that is, Order XIII rule 3 (3) CAR. He has argued that the real issue is whether the reason advanced by the applicant is sufficient to persuade the Court to exercise its discretion to extend time. Counsel contends that the applicant has not provided material or reasons which are sufficient to persuade the Court to make an extension of time. Further, that the applicant has not explained why it failed to make the application within 21 days after the 60 day period lapsed. In reply, Mr. Mwamba submitted that the Supreme Court in Chisanga Mushili Mulenga v. Zesco Limited, held that failure to obtain the transcript of proceedings is a valid reason for the court to extend time. I have carefully considered the application and submissions by counsel. As earlier alluded to, the summons for the application indicates that this is an application for leave to file a notice of application for extension of time pursuant to Order XIII rule 3 (3). Meanwhile, the affidavit in support states that it is in support of summons to file the Record of Appeal out of time. The summons is clearly wrongly headed. At the hearing, the applicant’s counsel indicated that the application is for extension of time to file the Record of Appeal and Heads of Argument. The respondent’s counsel also defended the application as though the summons is for leave to file the Record of Appeal and Heads of Argument out of time. Order XIII rule 3 (3) under which the application is made provides 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, -R5- 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 summons seems to suggest that the present application is for leave to make the application for extension of time within which to file the Record of Appeal out of time as contemplated in the first part of the rule cited which permits the Court to extend time for making an application. However, it is clear from the affidavit evidence and arguments before me that the intended application is for leave to file the Record of Appeal and Heads of Argument out of time which is equally envisaged in the latter part of the rule. I will therefore consider the application on the basis that it is for an Order to extend the time within which to file the Record of Appeal and Heads of Argument as stated by counsel at the hearing and argued by both parties. The cardinal issue this application raises is whether the reasons advanced by the applicant are sufficient to warrant an order for extension of time under Order XIII rule 3 (3) CAR. It is clear that under that rule, the grant or refusal to extend time is discretionary. Of course this discretion must be exercised judiciously. Thus, in order for this Court to extend the time within which the applicant can file the Record of Appeal and Heads of Argument, the applicant must demonstrate that there is some material or sufficient reasons to compel this Court to exercise its discretion in its favour. There is no clear cut definition of what sufficient reason is. Every matter must be considered on its merit having regard to the circumstances surrounding it. In this case, the applicant’s reason for failing to comply -R6- with the rules is that the transcript of proceedings was prepared late such that the Record of Appeal could not be filed within the prescribed period. I am of the considered view that the reason advanced is sufficient. As ably argued by Mr. Mwamba, on the strength of the case of Chisanga Mushili Mulenga v. Zesco Limited1, failure to obtain the transcript of proceedings is a valid reason for the Court to extend time. I have also taken note of the facts deposed in the affidavit in support that the applicant’s counsel made follow ups with court officials to obtain a copy of the transcript of proceedings. I agree with Mr. Bwalya that when counsel realised that he was unable to obtain the transcript of proceedings and file the relevant documents within the prescribed period, he ought to have applied for enlargement of time. The record shows that the Appeal was lodged on 13th November, 2017. The Record of Appeal should have been filed on or about 12th January, 2018 but this was not done and no application for enlargement of time was made before the lapse of the 60 day period. Thereafter, the applicant had another opportunity within 21 days, after the expiry of the 60 day period to apply for extension of time but did not do so. The 21 day period lapsed on or about 2nd February, 2018. After the lapse of 21 days, the applicant had an opportunity to apply under Order XIII rule 3 (3) by giving sufficient reason why it failed to file within the 60 day period then the 21 day period. Thus, the applicant is well within its rights to apply for extension of time after the lapse of 21 days in accordance with Order XIII rule 3 (3) CAR, the only rider being that the applicant must show sufficient reason for the delay in order to persuade the Court to exercise its discretion to extend time. -R7- I have already determined that the reason advanced is sufficient. I have further perused the Notice and Memorandum of Appeal. The issues contained in the Grounds of Appeal are novel such that it is necessary for the Court to pronounce itself on those issues. In view of the foregoing, I find that the reasons advanced by the applicant for the delay in filing the Record of Appeal is sufficient to warrant this Court to extend time in accordance with Order XIII rule 3 (3) CAR. Therefore, the applicant’s application is successful. Accordingly, I order that the applicant shall file the Record of Appeal and Heads of Argument within 45 days from the date of this Ruling. The costs of this application shall be in the cause. Delivered at Lusaka this 8th day of June, 2018. J.z. Mulongoti Court of Appeal Judge -R8-