Sipalo v Mundia (ZR 105 (HC)) [1966] ZMHC 18 (12 October 1966)

SIPALO v MUNDIA (1966) ZR 105 (HC) HIGH COURT RAMSAY J 12th OCTOBER 1966 Flynote and Headnote [1] Civil procedure - Appeal - Decision of Registrar - Applica�on for extension of �me - No special summons required. In an appeal from a decision of the Registrar, an applica�on for an extension of �me may be heard on the hearing of the appeal, without a special summons being taken out for that purpose. [2] Civil procedure - Appeal - Decision of Registrar - Time for appeal. An appeal to a judge in chambers, from a decision of the Registrar, should be by no�ce in wri�ng to atend before the judge within seven days of the decision complained of. The no�ce should, strictly, be filed within five days a�er the decision. [3] Civil procedure - Appeal - No�ce of Appeal - Time for filing - Time runs during vaca�on. In reckoning the period for filing a no�ce of appeal �me runs during the vaca�on. [4] Civil procedure - Appeal - No�ce of appeal - Time for filing - Enlargement of �me - Court's discre�on. The court has a discre�on to enlarge �me in order to avoid injus�ce to the par�es. [5] Civil procedure - Appeal - No�ce of appeal - Time for filing - Enlargement of �me - Court's discre�on - Must be grounds for exercise. Where the court has discre�on to enlarge �me for a procedural step, it will not exercise that discre�on in favour of the applicant unless there is some material on which the discre�on can be exercised. Cases cited: (1) Gibbons v London Financial Association (1897), 4 CPD 263. (2) In re Beldan's Patent [1911] 1 Ch. 63. (3) Ratnam v Cumarasamy [1964] 3 All ER 933; [1965] 1 WLR 8. (4) Atwood v Chichester (1878), 3 QB D. 722. Rules construed: Zambia: High Court Rules (Cap. 3, subsid.), order 2, rules 1 (3), 2, 4, 5 order 3, rule 3; order 27, rule 10 (1); order 40A, rule 3 (4). England: Supreme Court (England) Rules, order 54, rule 21. A Mitchley, for the applicant Cunningham, for the respondent 1966 ZR p106 RAMSAY J [Editorial Note:] Appeals from the Registrar, Deputy Registrar or District Registrars 1. Aten�on has been drawn to the fact that doubt appears to exist as to the proper procedure for appeals from decisions of the Registrar, Deputy Registrar or District Registrars under order 27, rule 10 (1) of the High Court Rules. This direc�on is issued for the avoidance of such doubt. 2. The no�ce in wri�ng must be to atend before the judge in chambers on a day named in the no�ce within seven days of the decision complained of. The no�ce of appeal should be served (unless otherwise ordered) at least one clear day before the day of hearing. Mere lodgment of the no�ce within seven days of the decision appealed against does not comply with the rule. This interpreta�on of the rule conforms with the prac�ce notes to the RSC, order 35, rule 9 and order 54, rule 21. 3. Similarly on appeals from decisions of an Assistant Registrar under rule 10 (2) of order 27, the no�ce in wri�ng to atend before the Registrar must be returnable for a day within seven days from the decision appealed against. Editorial Note: Some of the points in this judgment are covered by a Prac�ce Direc�on of 8th February, 1963, to which, it would appear, the learned judge was not referred by counsel This prac�ce direc�on reads as follows: Judgment Ramsay J: On 4th August, 1966, the learned Deputy Registrar heard an applica�on by the defendant in the original ac�on for certain further and beter par�culars of the plain�ff's statement of claim and of his reply, and on 9th August, 1966, he delivered decision dismissing the applica�on. On 5th October, 1966, the defendant filed a no�ce of appeal returnable before a judge in chambers on 11th October, 1966. The no�ce also contained an in�ma�on that there would also be an applica�on for an extension of �me within which to appeal. The High Court Rules, order 2, rule 2, provide that par�es may, by consent, enlarge or abridge any of the �mes fixed for taking any step, or filing any document, or giving no�ce, in any suit, and that where such consent cannot be obtained, either party may apply to the court or a judge for an order to effect the object sought to have been obtained with the consent of the other party. [1] It might, therefore. have been expected that there would have been an applica�on for extension of �me before the filing of the No�ce of Appeal, but it is stated in the Annual Prac�ce, 1966, at p. 1406 in a note to Rules of the Supreme Court, order 54, rule 21, that the �me may be enlarged by the court or a judge, on the hearing of the appeal, without a summons being taken out for that purpose. (Gibbons v London Financial Association [1].) I therefore heard the applica�on for an extension of �me. 1966 ZR p107 RAMSAY J [2] Order 27, r.10 (1) of the High Court Rules, omi�ng the last sentence as inapplicable, is as follows: ' Any person affected by any decision, order or direc�on of the registrar may appeal therefrom to a judge at chambers. Such appeal shall be by no�ce in wri�ng to atend before the judge without a fresh summons, within seven days a�er the decision, order or direc�on complained of, or such further �me as may be allowed by a judge or the registrar. Unless otherwise ordered there shall be at least one clear day between service of the no�ce of appeal and the day of hearing.' This rule directs that the atendance shall be before the judge within seven days a�er the decision complained of, and as at least one clear day's no�ce is to be given to the other side, it follows that the no�ce of appeal should be filed within five days a�er the decision. The rule is prac�cally word for word the same as Rules of the Supreme Court, order 54, rule 21, which I have referred to above, except that the �me allowed there to atend before the judge is five days, and Gibbons v London Financial Association is also authority for this statement in the Annual Prac�ce at p. 1406: ' If the list is full, or no judge is si�ng, or from any other official cause the appeal cannot be heard within the �me, it may be heard later without extension of �me. But the party appealing must take all the steps necessary to have the appeal heard within the five days, otherwise it will be out of �me.' The facts in Gibbons' case were that the master made a certain order on 7th April; an appeal summons was taken out against it on 10th April, but as no judge was si�ng at chambers un�l 17th April, it was made returnable within the four days which apparently was the period then prescribed. The Divisional Court held that, as the appellant was not in default at all and had made the summons returnable at the first minute when it would be of use, it was unjust not to allow the appeal from the judge's refusal and the �me was accordingly enlarged. I understand it has been the prac�ce in the High Court here to hear an appeal against a registrar's decision without an enlargement of �me if the no�ce of appeal is filed within the seven days (though five should have been the correct period). Mr A. O. R Mitchley therefore submits that the no�ce should have been filed by Tuesday, 16th August, that as the court offices were not open on Saturday, 19th, or Sunday, 20th August, and that as the 22nd August was the last date of the Trinity Si�ngs, he was only asking for an extension of �me of four effec�ve days. Order 2, rule 1 (3) of the High Court Rules, provides that where the limited �me is less than six days, Saturdays, Sundays and public holidays are not to be reckoned as part of the �me. The limited �me under order 27, rule 10 is seven days. There are only five effec�ve days in this period, so on this submission what Mr Mitchley is asking for is not an extension of only four effec�ve days but that the �me allowed should be almost doubled. 1966 ZR p108 RAMSAY J His submission is, however, based on a belief that �me does not run during the vaca�on. But the High Court Rules, order 2, rule 4 provides: ' Summonses may be issued and pleadings may be amended, delivered or filed during the last eleven days of the Michaelmas and Christmas vaca�ons respec�vely, but pleadings shall not be amended, delivered or filed during any other part of such vaca�ons unless by the direc�on of the court or a judge.' And rule 5 is as follows: ' Save as in the last preceding rule men�oned the �me of the Michaelmas and Christmas vaca�ons in any year shall not be reckoned in the computa�on of �mes appointed or allowed in accordance with these rules for amending, delivering or filing any pleadings unless otherwise directed by the court or a judge.' [3] There is no men�on of appeals, in these two rules, and, in the Rules of the Supreme Court, order 3, rule 3, states: ' Unless the court otherwise directs, the period of the long vaca�on shall be excluded in reckoning any period prescribed by these rules or by any order or direc�on for serving, filing, or amending any pleading.' In Re Beldan's Patent [2], it was held that this wording did not apply to a no�ce of appeal. I am told that the prac�ce in the High Court Registry is not to file any papers other than those in the causes and maters detailed in order 40A, rule 3 (4). It appears to me that, if this is so, the prac�ce is wrong, and that, apart from the amending, delivering and filing of pleadings �me runs during the vaca�ons. It follows, therefore, that the no�ce of appeal is seven weeks out of �me. The fact that seven days is the period allowed not only for the filing of the no�ce of appeal but also for the hearing before the judge shows that the rules are designed to cut out procedural delays in bringing a case to trial. Here the no�ce was at least six days out of �me before the beginning of the vaca�on, and it is now seven weeks out of �me. [4] The court, however, has a discre�on to enlarge the �me with a view to the avoidance of injus�ce to the par�es. Mr Mitchley has submited that the delays have been due to misunderstandings and to his absence from Zambia. He also states that irreparable damage will be done to his case if the extension of �me is not granted. This assumes that, if the appeal is heard, it will be successful; and this by no means follows. It seems to me that the defendant is in a more difficult posi�on than he would have been if the appeal were allowed, but I do not consider that irreparable damage will be done to his case if I refuse to hear the appeal, nor that the appeal would be prac�cally certain to succeed if I heard it. [5] I adopt the following extract from the opinion of the Privy Council in Ratnam v Cumarasamy [3]: ' The rules of court must, prima facie, be obeyed, and, in order 1966 ZR p109 RAMSAY J to jus�fy a court in extending the �me during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discre�on. If the law were otherwise, a party in breach would have an unqualified right to an extension of �me which would defeat the purpose of the rules which is to provide a �metable for the conduct of li�ga�on.' The opinion goes on to deal with the material which was before the court below, and it con�nues: ' The principle for which the appellant's counsel contended was that the applica�on should be granted unless to do otherwise would result in irreparable mischief. This was said to be extracted from the judgment of Bramwell, LJ, in Atwood v Chichester [4], when he said: "When si�ng at chambers I have o�en heard it argued that when irreparable mischief would be done by acceding to a tardy applica�on, it being a departure from the ordinary prac�ce, the person who has failed to act within the proper �me ought to be the sufferer, but that in other cases the objec�on of lateness ought not to be listened to, and any injury caused by the delay may be compensated for by the payment of costs. This I think is a correct view. " ' Their Lordships note that these observa�ons were made in reference to a case where the applica�on was to set aside a judgment by default, which is on a different basis from an applica�on to extend the �me for appealing. In the one case the li�gant has had no trial at all; in the other he has had a trial and lost. Their Lordships do not regard these observa�ons as of general applica�on.' In the instant case I have considered the material which is before me, which could jus�fy the gran�ng of an extension of �me. I have considered it, I do not think it sufficient to jus�fy such an extension and in the exercise of my discre�on, I refuse to grant an extension of �me. Order accordingly 1966 ZR p110