Lenard Kayanda v Ital Terrazo Limited (In receivership) (APPEAL NO.125/2016) [2020] ZMSC 172 (6 October 2020)

lN THE SUPREME COURT OF ZAMBIA . :• ~--.. HOLDE_N AT LUSAKA (Civil Jurisdiction) . .. - .. ·! '. ~= . ' .. :_ ' .. :p.., ... • 1:-.. · -· • ~ ..... O fi OCT 2020 BETWEEN: LENARD KANY ANDA AND APPELLANT ITAL TERRAZO LIMITED (IN RECEIVERSHIP) RESPONDENT Coram: Musonda, DCJ, Kaoma and Kajimanga, JJS on 6 th October, For the Appellant: In Person For the Respondent: Mr. C. M. Sianondo - Malambo and Company JUDGMENT Kaoma, JS , delivered the Judgment of the Court. Legislation referred to: 1. Supreme Court Rules, Cap 25, Rules 12(1) and (2), 48(1) and (4), 54, and 58(5) 2. The Supreme Court (Amendment) Rules, 2012 (Statutory Instrument No. 26 of 2012) 1. Background Facts 1.1 On 7th May, 2019 when the appellant's appeal was called for hearing, the appellant informed the Court that he was appearing in person because his counsel had just abandoned him although they had not filed an order or a notice of withdrawal of advocates. However, he indicated that he was ready to proceed in person. 1.2 Before we could hear the appeal, we had to deal with a preliminary issue raised by counsel for the respondent that the appellant had J2- filed the record of appeal outside the 60 days stipulat~d by Rule 54 of the Supreme Court Rules-, Cap 25 without leave'of the court. 1.3 The appellant had conceded that there was no leave obtained to file the record of appeal out of time but he alleged that he was not aware and that he was hearing it 1n court. Counsel for the respondent then invited the court to dismiss the appeal, for the reason that it was incompetent. 1.4 However, given the claim by the appellant that his counsel had just abandoned him, the court allowed him to withdraw the record of appeal with a view to apply for leave before a single Judge, within a period of 30 days to file the record of appeal out of time. The court awarded the costs to the respondent. 2. Application before the Single Judge and Decision 2.1 On 20th May, 2019 the appellant applied before a single judge of this Court for leave to file his record of appeal out of time. The single judge heard the application on 24th May, 2019 and delivered an extempore ruling dismissing the application, with costs. 2.2 The single Judge gave two reasons, first, that there was inordinate delay by the appellant to file his application for leave; and secondly that he sat on his rights and the issue of his lawyers was not a reason for her to exercise her discretion in his favour. 3. This Motion and arguments by the parties J3 3.1 On 10th June, 2019, the appellant filed this motion seeking to set aside the ruling of the single Judge and for the Court to grant him leave to file the record of appeal out time. In the affidavit in support of notice of motion, he explained the circumstances that prompted him to apply for leave to file the record of appeal out of time. 3 .2 The appellant's main argument in support of the motion was that he applied for leave to file the record of appeal out of time based on our decision of 7th May, 2019 and that he based his application on Rule 12(1} of the Supreme Court Rules. 3.3 The respondent filed an affidavit and arguments in opposition on 3 rd February, 2020. The main contention was that since the appellant failed to file the record of appeal within the requisite 60 days, he was required, in terms of Rule 12(2) of the Supreme Court Rules, to apply for extension of time within 21 days after the end of the 60 days, before filing his application before the single Judge. 3.4 Alternatively, the appellant ought to have applied for leave of this Court before filing an application to extend the time within which to file the record of appeal after the Court allowed him to withdraw the appeal on 7 th May, 2019. 4 Preliminary objection by the respondent 4.1 On 10th September, 2020, the respondent filed a notice to raise a preliminary objection to the hearing of the motion on the ground that the motion was improperly before this Court as there was no leave otn:ained .. before filing the same as the application was outside the time stipulated by Rule 12 of the Supreme Court Rules. The respondent relied on the affidavit in opposition to the motion. 4.2 In his oral submissions before us, counsel for the respondent further contended that the motion was incompetent in light of Rule 48(4) of the Supreme Court Rules as the appellant filed the motion outside the 14 days period stipulated in Rule 48(1). 4.3 On 29th September, 2020, the appellant filed skeleton arguments in opposition of notice to raise preliminary objection to the hearing of the motion. He contended largely that the objection mounted by the respondent based on Rule 12(2) of the Supreme Court Rules was misconceived as the Court on 7 th May 2019 granted him 30 days within which to file the application for leave. 4.4 In his oral reply to the arguments by counsel for the respondent around Rule 48(4) of the Supreme Court Rules, the appellant acknowledged that he ought to have filed the motion within 14 days of the decision of the single Judge and that he was out of time. 5 Our decision on the preliminary objection 5.1 The issue we have to decide is whether this motion is improperly before us as argued by the respondent. We agree with the appellant that given the order we made on 7 th May, 20 19 granting him 30 days within which to apply for leave before a single judge to file the JS record of appeal out of time, there was no need for him to move the single Judge under Rule 12(2) before filing the application. 5.2 As we said above, the appellant applied before the single Judge for leave to file his record of appeal out of time on 20th May, 2019, which was within the permissible 30 days. In any case, counsel for the respondent had made the same argument before the single judge but she did not consider it a bar to the appellant's application, which she considered on merit. ~ 5.3 However, the issue does not end there. In terms of Rule 48(4) of the Supreme Court Rules, the motion ought to have been filed within fourteen ( 14) days of the decision of the single Judge declining leave. The Supreme Court (Amendment) Rules, 2012 (Statutory Instrument No. 26 of 2012) amended Rule 48(1) of the Supreme Court Rules to insert a fourteen days time limit. It provides in part: ( 1) Applications to a single judge shall be made by motion or summons, within fourteen days of the decision complained of which shall state the grounds of the application, and shall if necessary be supported by affidavits ... (Underlining ours for emphasis only) 5.4 Rule 48(4), which was not amended provides in part: (4) Any person aggrieved by any decision of a single judge who desires to have such decision varied, discharged or reversed by the Court under paragraph (b) of section four of the Act, shall in like manner file before the hearing by the Court three extra copies of the proceedings, ... (Emphasis again ours) JS record of appeal out of time, there was no need for him to move the single Judge under Rule 12(2) before filing the application. 5.2 As we said above, the appellant applied before the single Judge for leave to file his record of appeal out of time on 20th May, 2019, which was within the permissible 30 days. In any case, counsel for the respondent had made the same argument before the single judge but she did not consider it a bar to the appellant's application, which she considered on merit. ~ 5.3 However, the issue does not end there. In terms of Rule 48(4) of the Supreme Court Rules, the motion ought to have been filed within fourteen (14) days of the decision of the single Judge declining leave. The Supreme Court (Amendment) Rules, 2012 (Statutory Instrument No. 26 of 2012) amended Rule 48(1) of the Supreme Court Rules to insert a fourteen days time limit. It provides in part: ( 1) Applications to a single judge shall be made by motion or summons, within fourteen days of the decision complained of which shall state the grounds of the application, and shall if necessary be supported by affidavits ... (Underlining ours for emphasis only) 5.4 Rule 48(4), which was not amended provides in part: (4) Any person aggrieved by any decision of a single judge who desires to have such decision varied, discharged or reversed by the Court under paragraph (b) of section four of the Act, shall in like manner file before the hearing by the Court three extra copies of the proceedings, ... (Emphasis again ours) Jl · " 6.2 In the event, the appeal that has survived this far, only on the notice of appeal, is also dismissed. 6 .3 We would have awarded costs to the respondent. However, learned counsel for the respondent courageously informed us that the appellant is not in a position to pay awarded costs, which counsel has readily given up, and so, we should not burden him with .n,t£_:)Mf\t iv.,~ another order for costs. We commend counsel for this r-''f:@!rt.tty, which , ) is very rare at the Bar. Therefore, we make no order as to costs. M. MUSONDA DEPUTY CHIEF JUSTIC ----·!.~1.~orviA~-- suPREME COURT JUDGE C~~GA SUPREME COURT JUDGE