Alfred Kulondola and Ors v Zamanita Limited (CAZ/08/130/2021) [2022] ZMCA 159 (23 June 2022)

AND ZAMANITA LIMITED RESPONDENT Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 23rd June 2022 For the Appellants: For the 1st Respondent: Mr. B. Banda of Legal Aid Board Ms. M. Kapotwe of Messrs Corpus Legal Practitioners RULING Legislation referred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 of 2016 Cases ref erred to: 1. DE Nkuwa V Lusaka Tyre Services Limited (1977) ZR 43 2. Kalyengu Kapepe & Others V Clayton & Another SCZ 8 292 of 2017 3. Nahar Investment Limited V Grindlays Bank International Zambia Limited (1984) ZR 81 (SC) 4. Oswald Chulu V Moses Muteteka & the Electoral Commission of Zambia SCZ/8/ 051/2013 5. Allen V Sir Alfred Mcalpine & Sons Limited (1968) ALL ER 543 6. Philip Mutantika & Mulyata V Kennth Chipungu SCZ Judgment No. 13 of 2014 7. Development Bank of Zambia and Mary Ncube (Receiver) V Christopher Mwanza and 63 others SCZ/ 8/ 103/ 08 8. Blair Freight International Limited V Credit Africa Bank Limited SCZ Appeal No. 2009 of 1997 Rl 9. Edward Chilufya Mwansa and 194 others V Konkola Copper Mines, Appeal No. 99 oj2015 10. Twampane Mining Co-operative Society Limited V G & M Storti Mining Limited (2011) ZR 18. This is a ruling on the Appellants application brought on 31 st May 2022 for an order for leave for extension of time within which to file the record of appeal and heads of argument. It was brought pursuant to Order VII Rule 1 of the Court of Appeal Rules 1 . The application is supported by an affidavit filed into Court on 31 st May 2022 and sworn by one Bentry Banda, an Advocate of the High Court for Zambia in the employ of Legal Aid Board, the Advocate seized with conduct of the matter on behalf of the Appellants. The gist of the contents of the affidavit in support is that a Notice of Appeal was filed into Court on 5th April 2021 as shown on exhibit marked 'BBl '. However, the Appellants have been unable to file the record of appeal and heads of argument within the stipulated period of sixty days as prescribed by law owing to counsel's failure to obtain proceedings from the lower court. The delay in processing the proceedings was among other reasons caused by the Covid-19 guidelines which limited staff in the typing pool coupled with the high volume of works and back log in the trial court. Counsel deposed further that a copy of the proceedings are now in his possession having come into his possession on 24th May 2022 R2 and that he is ready to file the same into court. Counsel submitted that the failure to comply with the Rules of Court was not deliberate and urged the Court to grant an extension of time to file the necessary documents. In opposing the application, the Respondent filed an affidavit in opposition filed into court on 20th June 2022 and sworn by one Mulenga Kapotwe, an Advocate of the High Court for Zambia in the employ of Messrs Corpus Legal Practitioners, the Advocates seized with conduct of this matter on behalf of the Respondent. The gist of her affidavit is that the Notice and Memorandum of Appeal were filed into Court on 6th April 2021 and not 5 th April 2021 as the Appellants avers. That the said Notice had not been served on them as Respondent's counsel and that they were therefore unware that the Appellants had filed the same into Court. The deponent further highlighted that the sixty day period within which the Appellants were required to file their Record of Appeal and Heads of Argument elapsed over one year ago on 3 rd June 2021 and that this delay of over a year to obtain a transcript of proceedings from the High Court is unusual and inordinate. She deposed further that the Appellants had not provided documentary evidence revealing the reasons for their non compliance with the Rules, nor had they shown that their non compliance was occasioned by the delay in obtaining the record of proceedings from the High Court. R3 The deponent contended that the Appellants had had sufficient time within which to file the necessary documents but neglected and/ or ignored to do so in over a year. Further, that the Respondent has been prejudiced by the Appellants' failure to serve the Notice of Appeal and the Memorandum of Appeal upon it and therefore was not aware of the pending proceedings before the Court and consequently unable to take necessary steps opposing the appeal. The deponent also stated that the Appellants had failed to prosecute their appeal within 2 years of the date of judgment. The deponent further stated that the Appellants had failed to seek an extension of time within which to file the documents before 3 r d June 2021 and sat on their rights to prosecute the appeal. That further , the Appellants had not shown_ sufficient cause why the application for extension of time should be granted. The deponent urged the Court to dismiss the application for extension of time to file the Record of Appeal and Heads of Argument. The application was heard on 21 st June 2022. Both Counsel for the Appellants and Respondent were in attendance. Counsel for the Appellants relied on the affidavit in support but did not file any arguments. In opposing the application, the Respondent's Counsel relied on the affidavit in opposition and List of Authorities and Skeleton Arguments both filed into Court on 20th June 2022 . R4 The contention of the Respondent in their arguments is that the Appellants having filed a Notice of Appeal against the Judgment of the High Court on 5 th April 2021 were required to file their Record of Appeal and Heads of Argument within 60 days from that date. The sixty day period elapsed on 3 rd June 2021, but that the Appellant failed to file the Record of Appeal within the timeframe allowed for doing so. The Respondent submitted that the Court is, by virtue of the provisions of Order XIII Rule 3 of the Court of Appeal Rules , empowered for sufficient reason, to grant an extension of time for making an application, bringing an appeal or taking any steps in connection with an appeal. Counsel argued however that in an application for extension of time, the Court's discretion is informed by sufficient reason and that an applicant must provide an explanation for failing to file a Record of Appeal within the prescribed time. The Court's attention was drawn to the case of D. E Nkhuwa V Lusaka Tyres Services Limited1 where the Supreme Court guided that the granting of an extension of time within which to appeal is entirely in the discretion of the Court, but that such discretion should not be exercised without good cause. Counsel for the Respondent argued that the Appellants have not shown sufficient reason to warrant the Court exercising its discretion to grant them an extension of time within which to file their Record of Appeal. RS The Court's attention was drawn to the cases of Kalyangu Kapepe and Others V Clayton and Another2 , Nahar Investment Limited V Grindlays Bank International Zambia Limited3 and Oswald Chulu V Moses Muteteka and the Electoral Commission of Zambia4 . In these cases, the Supreme Court guided that where the rules of Court specify time limits to take certain steps, non-adherence by litigants to do so elicits perilous grounds. Where cogent reasons exist for non-compliance, the litigant must promptly apply for an extension of time to comply and furnish Court with sufficient reasons for bringing application late. They further guided that Appellants have a duty to make prompt applications for enlargement of time. The Respondent further submitted that the application filed a year after the lapse of time for filing the Record of Appeal shows a lack of seriousness and laxity on the part of the Appellants. Further, that the delay is inordinate and inexcusable. Counsel relied on the case of Allen V Sir Alfred Mcalpine & Sons Limited5 , where the Court held that "when delay in the conduct of an action is prolonged or inordinate and is inexcusable ... or that grave injustice will be done ... the Court may in its discretion dismiss the action." Lastly, Counsel for the Respondent requested the Court to consider whether the appeal should be dismissed for want of prosecution in line with Order X Rule 6 of the Court of Appeal Rules which requires the Appellant to lodge an appeal within sixty days after filing R6 the Record of Appeal. Counsel argued that the use of the word "shall" is a mandatory prescription and does not confer any power on the Court to exercise discretion. Reliance was made to the case of Philip Mutantika V Mulyata and Kenneth Chipungu6 where the Court held that the use of the word "shall" confers mandatory provisions and therefore not regulatory as they do not give the court discretionary power. The Court was urged to dismiss the application for its inordinate delay and not permit the Appellants to benefit from their inertia and failure to comply with the Rules of the Court. The Court's further attention was drawn to the cases of Development Bank of Zambia and Mary Ncube (Receiver) V Christopher Mwanza and 63 others7 SCZ/8/ 103/08, Blair Freight International Limited V Credit Africa Bank Limited8 and Edward Chilufya Mwansa and 194 others V Konkola Copper Mines9 • Counsel concluded by arguing that the Appellants had not been vigilant in prosecuting this appeal and implored the Court to dismiss the application with costs. I have carefully considered the affidavit evidence and the skeleton arguments of the respective parties. The application before me is for leave for extension of time within which to file the Record of Appeal and Heads of Argument. R7 The application was made pursuant to Order VII Rule 1 of the Court of Appeal Rules, 2016 which provides: "(1) An interlocutory application shall be by notice of motion or summons in substantially Form 111 or Form IV, respectively, set out in the schedule. (2) An interlocutory application may be heard and determined by a single Judge except that the decision or order made on an interlocutory application shall not operate so as to prejudice the Court from giving a decision on a case if the Court considers just". The foregoing illustrates that a single judge is empowered to hear and determine interlocutory applications and that such applications shall be made by motions or summons. The application is therefore brought properly before this Court. The correct provision on the question of the Court granting an extension of time to do any act is Order XIII Rule 3 ( 1) of the Court of Appeal Rules which provides that: '3(1) The Court may, for sufficient reason extend the time for- (a) making an application, including an application for leave to appeal; (b) bringing an appeal; or (c) taking any step in or in connection with an appeal. R8 By the above provision, the Court is empowered to extent time for taking any steps. Sub rule (2) provides further that: "An application to the Court for extension of time in relation to a judgment or the date of expiration of the time within which the application ought to have been made, shall be filed in the Registry within twenty-one days of the judgment or such time within which the application ought to have been made, unless leave of the Court is obtained to file the application out of time." The provision of sub rule (1) and (2) of Rule 3 of Order XIII shows that an Appellant has in the first instance 60 days to file the Record of Appeal and Heads of Argument and after the expiry of sixty days, they have another twenty-one days. That notwithstanding sub rule 3 of Rule 3 of Order XIII of the Court of Appeal Rules, allows an Appellant a further opportunity to seek an extension of time for sufficient reasons. It provides that: "(3) 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, R9 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 foregoing provision illustrate that the Court has discretion to extend time when furnished with sufficient reason. In the present case, the Appellants filed a Notice of Appeal on 6 th April 2021 intending to appeal against the Judgment of Mwansa, J of the Industrial Relations Division of 16th July 2020. In accordance with Order X Rule 6 of the Court of Appeal Rules, the Record of Appeal ought to have been filed within sixty days of lodging the Notice of Appeal. The Notice of Appeal having been filed on 6 th April 2021 , the Record of Appeal and Heads of Argument were to have been filed by 3 rd June 2021. However, the Appellants did not file the requisite documents on time. Instead they have brought this application for extension of time to file the same on 31 st May 2022, a period of 362 days after the expiry of sixty days. This delay is inordinate. The reasons advanced by the Appellant's Counsel for failing to comply is that there has been delay in obtaining the record of proceedings from the High Court due to Covid-19 guidelines in place. Counsel for the Respondent disputed this contention and argued that the Appellant's Counsel had failed to demonstrate that the delay has indeed been on account of delays in the High Court R 10 Registry. Counsel argued further that the Appellants had failed to exhibit letters to the Court requesting for the proceedings. The Appellants have had ample time to lodge their appeal but sat on their right to prosecute the appeal within the stipulated time frame. In view of the foregoing, I am not satisfied with the reasons advanced by the Appellants Counsel for the delay in filing the Record of Appeal and the heads of Argument. I am also not convinced that Counsel has been diligent in pursuing the High Court Registry for over a year to obtain the record of proceedings. It is evident that. As aptly argued by the Respondent's Counsel, there has been inordinate and inexcusable delay in prosecuting this appeal by the Appellants. The laxity on the part of the Appellants was at their own peril as indicated in the Twam.pane Mining Co-operative Society Limited VG & M Storti Mining Limited10 . The Judgment in this case was delivered on the 16th July 2020, almost two years ago. Allowing the Appellants' application to extend time to lodge the appeal almost 2 years after the High Court case was concluded is unjust. It will also prejudice the Respondent who was unaware of these appeal proceedings and under the belief that the matter had concluded. There must be finality and an end to litigation. R 11 The application for extension of time is accordingly denied. Each party is to bear their own costs of this application. Dated at Lusaka this 23rd June 2022 . ~ P= COURT OF APPEAL JUDGE . A. Sharpe-Phin R 12