National Pension Scheme Authority v Metraclark (Zambia) Ltd and Ors (CAZ 8 80 of 2016) [2018] ZMCA 399 (10 April 2018)

IN THE COURT OF APPEAL FOR ZAMBIA CAZ/08/ 80/ 2016 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: NATIONAL PENSION SCHEME AU'rttORITY APPELLANT AND METRACLARK (ZAMBIA) LIMITED HANDY AIR CONDITIONING LIMITED CHARLES PHIRI 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT Before the Hon. Mrs Justice J. Z. Mulongoti in Chambers on the ,.^./zL?^day of.....2018. For the appellant: Ms R. Mutete, In-house counsel For the 1st respondent: For the 2nd respondent: For the 3rd respondent: Mr. K. Musabandesu, M & M Advocates N/A N/A RULING Cases referred to: 1. Access Bank Ltd v. Group Five/ ZCON Business Park Joint Venture (Suing as a firm) (SCZ/8/52/2014) 2. Allen v. Sir Alfred McAlpine & Sons Limited (1968) 1 All E. R 543 3. Dipak Kumar Patel and Yakub Patel v. David Kangwa Nkonde (Selected Ruling No. 33 of 2017) 4. Danmore Mulima v. Zambia Revenue Authority (SCZ No. 16 of 2014) Legislation & Works referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 2. Halsbury's Laws of England, vol. 37, 4^ edition. -Rl- This ruling relates to the 1st respondent’s application to dismiss the appellant’s appeal for want of prosecution pursuant to Order X rule 7 of the Court of Appeal Rules (CAR). At this stage, it is necessary to say a little about the background leading to this application. The appellant lodged an appeal to this court on 4th November, 2016 against the ruling of the High Court of 11th October, 2016. From 4th November, 2016, the appellant took no step to prosecute the appeal. The next activity on the case from the time the appeal was lodged was a search conducted by the 1st respondent’s advocates on 5th February, 2018. On 12lh February, 2018, the 1st respondent applied to have the appeal dismissed for want of prosecution which is the application before me now. The application is by summons and a supporting affidavit sworn by the appellant’s counsel, Keith Paul Musabandesu. He deposed that the appellant filed a notice of appeal on 4th November, 2016 and failed to file the record of appeal and heads of arguments within 60 days as required by Order X rule 6 CAR. That he conducted a search and the results showed that the appellant had not filed the record of appeal and heads of argument and there was no application to extend time. There was no affidavit in opposition filed by the appellant. At the hearing, the appellant was represented by Ms Mutete while the 1st respondent was represented by Mr. Musabandesu. There was no appearance by the 2nd and 3rd respondents. In arguing the application, Mr. Musabandesu relied on the affidavit in support of the application. He submitted, viva voce, that the appellant has -R2- clearly sat on its rights. The failure to file the record of appeal within 60 days as required by the rules is inexcusable and the delay is inordinate. The 1st respondent should not be denied the enjoyment of the fruits of its judgment. He referred to the case of Access Bank Ltd v. Group Five/ ZCON Business Park Joint Venture (Suing as a Firm)1 at page 24 to 33 to the effect that although matters should, as much as possible, be determined on their merits rather than be disposed of on technical or procedural points, the ends of justice also require that this court, indeed all courts, must never provide succour to litigants and their counsel who exhibit scant respect for rules of procedure as rules of procedure and timeliness serve to make the process of adjudication fair, just, certain and even-handed. He prayed that the court dismisses the appeal with costs and discharges the stay that was granted in the High Court pending appeal. In response, Ms Mutete argued that while the rules have not been strictly complied with, it is imperative that the appellant be heard. She submitted that the Access bank case cited by Mr. Musabandesu also mentions that the court should consider not dismissing cases on procedural points. The appellant has a meritorious appeal such that it would be highly unjust if it is not given an opportunity to present its case. She urged the court to exercise discretion in favour of the appellant in light of the fact that there is a pending application for extension of time and only condemn the appellant in costs. In reply, Mr. Musabandesu referred to the Tom Olick case where Sichinga, JA, said that applications for extension of time should be made timely in accordance with the rules and not when the respondent has moved to dismiss the appeal. -R3- I have considered the affidavit in support of the application and the oral submissions by counsel. The application is made pursuant to Order X rule 7 CAR which stipulates that- If an appeal is not lodged within the time stipulated under rule 6, the respondent may make an application to the Court for an order dismissing the appeal for want of prosecution, or alternatively, for such other order with regard to the appeal as the respondent may require. This provision gives the court discretion to dismiss an appeal for want of prosecution on the respondent’s application, the 1st respondent in this case. For the considerations to be taken into account when exercising such discretion, the learned authors of Halsbury's Laws of England, vol. 37, 4th edition at paragraph 448 state that- The power to dismiss an action for want of prosecution, without giving the plaintiff the opportunity to remedy his default, will not be exercised unless the Court is satisfied: (i) that the default has been intentional and contumelious (e.g. by disobedience to a peremptory Court order or by abuse of process); and (ii) that there has been prolonged or inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between them and a third party. -R4- The Supreme Court in Dipak Kumar Patel and Yakub Patel v. David Kangwa Nkonde3, held, inter alia, that a dismissal for want of prosecution imputes inordinate delay, absence of diligence or interest to proceed with an action and the application to dismiss on this ground ought to be supported with cogent evidence. In dismissing the appeal, Malila, J had this to say- Having reviewed the affidavit evidence before us and the submissions of the parties, we are satisfied that the applicants/ appellants manifested an intolerable level of laxity and the rankest indifference in prosecuting their action in the lower court and in dealing squarely with the appeal as well as the attendant motions and applications in this court. It was a proper matter to have been dismissed as it was. In addition, in the English case of Allan v. Sir Alfred McAlpine & Sons Limited2, the Court of Appeal held, inter alia that- When delay in the conduct of an action is prolonged or inordinate and is inexcusable, the natural inference in the absence of a credible excuse, and there is substantial risk by reason of the delay that a fair trial of the issues will no longer be possible or that grave injustice will be done to one party or the other or to both parties, the Court may in its discretion dismiss the action straight away. In order to exercise this discretion justly, the Court will consider the circumstances of the particular case, and among other factors, whether the blame is really the defendant's. Further, in Danmore Mulima v. Zambia Revenue Authority4, the Supreme Court held that the court must consider the circumstances of -R5- the particular case and among other factors, whether the blame is really the party's before concluding that failure to appear before the Court has been intentional and/or contumelious. In view of the authorities cited, it is clear that this Court has power to dismiss an action for want of prosecution and the deciding factors are that there must be intentional or contumelious disregard of the relevant rules and prolonged or inordinate delay in prosecuting the appeal. I note that the application to dismiss the appeal for want of prosecution was filed on 12th February, 2018. The attendant summons were endorsed as returnable on 14th March, 2018 at 08:30 hours. The 1st respondent filed an affidavit of service disclosing that the appellant was served with the application on 27th February, 2018. The appellant then on 13th March,2018 filed an application for leave to apply for extension of time pursuant to Order 13 rule 3 sub rule (3) CAR a day before the date fixed for the hearing of the application to dismiss the appeal. As ably argued by Mr. Musabandesu, the appellant sat on its rights. There was laxity and contumelious disregard of the relevant rules on the appellant’s part in prosecuting the appeal until the 1st respondent applied to dismiss it. I find that the application by the appellant to seek leave to extend time is an afterthought and made too late in the day. The appellant had 60 days within which to file the record of appeal from 4th November, 2016. The record should have been filed on 3rd January, 2017 which is the date when the 60 day period lapsed. After the expiry of that period, the appellant still had a second chance to apply for leave to file the record of appeal within 21 days in accordance with Order XIII rule 3 sub rule 2 CAR. Even after the 21 day period which ended on or about -R6- 24th January, 2017, the appellant still had an opportunity to apply for extension for sufficient reason pursuant to Order XIII rule 3 sub rule 3 CAR. However, the appellant sat back and took no steps to prosecute the appeal. The appellant went to sleep for over a year and only woke up when they were served with the application to dismiss the appeal for want of prosecution. The appellant did not even file an affidavit in opposition to explain its position, opting instead to file an application for extension of time. To compound the situation, this is an appeal against a ruling of the Commercial Court, a fast track court. I find that the delay by the appellant in taking any steps to prosecute the appeal is inordinate and inexcusable. 1 am of the considered view that the appellant is to blame for the laxity. The only reasonable inference to be drawn from the appellant’s conduct is that is not desirous of prosecuting the appeal. In addition, the delay by the appellant in prosecuting the appeal means that the respondents are being deprived the enjoyment of the fruits of their judgment which is unjust. I, therefore, find that is an appropriate case for which I can exercise discretion to dismiss the appeal for want of prosecution in accordance with Order X rule 7 CAR. i Accordingly, the 1st respondent’s application is granted. The appellant’: appeal is dismissed with costs to the 1st respondent to be taxed failing agreement. Delivered at Lusaka this ./jQ^day of 2018. J. Z. Mulongoti Court of Appeal Judge -R7-