Sipalo vMundia [1966] ZMHC 9 (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 - Application for extension of time - No special summons required. In an appeal from a decision of the Registrar, an application for an extension of time 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 notice in writing to attend before the judge within seven days of the decision complained of. The notice should, strictly, be filed within five days after the decision. [3] Civil procedure - Appeal - Notice of Appeal - Time for filing - Time runs during vacation. In reckoning the period for filing a notice of appeal time runs during the vacation. [4] Civil procedure - Appeal - Notice of appeal - Time for filing - Enlargement of time - Court's discretion. The court has a discretion to enlarge time in order to avoid injustice to the parties. [5] Civil procedure - Appeal - Notice of appeal - Time for filing - Enlargement of time - Court's discretion - Must be grounds for exercise. Where the court has discretion to enlarge time for a procedural step, it will not exercise that discretion in favour of the applicant unless there is some material on which the discretion 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. Attention 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 direction is issued for the avoidance of such doubt. 2. The notice in writing must be to attend before the judge in chambers on a day named in the notice within seven days of the decision complained of. The notice of appeal should be served (unless otherwise ordered) at least one clear day before the day of hearing. Mere lodgment of the notice within seven days of the decision appealed against does not comply with the rule. This interpretation of the rule conforms with the practice 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 notice in writing to attend 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 Practice Direction of 8th February, 1963, to which, it would appear, the learned judge was not referred by counsel This practice direction reads as follows: Judgment Ramsay J: On 4th August, 1966, the learned Deputy Registrar heard an application by the defendant in the original action for certain further and better particulars of the plaintiff's statement of claim and of his reply, and on 9th August, 1966, he delivered decision dismissing the application. On 5th October, 1966, the defendant filed a notice of appeal returnable before a judge in chambers on 11th October, 1966. The notice also contained an intimation that there would also be an application for an extension of time within which to appeal. The High Court Rules, order 2, rule 2, provide that parties may, by consent, enlarge or abridge any of the times fixed for taking any step, or filing any document, or giving notice, 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 application for extension of time before the filing of the Notice of Appeal, but it is stated in the Annual Practice, 1966, at p. 1406 in a note to Rules of the Supreme Court, order 54, rule 21, that the time 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 application for an extension of time. 1966 ZR p107 RAMSAY J [2] Order 27, r.10 (1) of the High Court Rules, omitting the last sentence as inapplicable, is as follows: ' Any person affected by any decision, order or direction of the registrar may appeal therefrom to a judge at chambers. Such appeal shall be by notice in writing to attend before the judge without a fresh summons, within seven days after the decision, order or direction complained of, or such further time 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 notice of appeal and the day of hearing.' This rule directs that the attendance shall be before the judge within seven days after the decision complained of, and as at least one clear day's notice is to be given to the other side, it follows that the notice of appeal should be filed within five days after the decision. The rule is practically word for word the same as Rules of the Supreme Court, order 54, rule 21, which I have referred to above, except that the time allowed there to attend before the judge is five days, and Gibbons v London Financial Association is also authority for this statement in the Annual Practice at p. 1406: ' If the list is full, or no judge is sitting, or from any other official cause the appeal cannot be heard within the time, it may be heard later without extension of time. 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 time.' 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 sitting at chambers until 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 time was accordingly enlarged. I understand it has been the practice in the High Court here to hear an appeal against a registrar's decision without an enlargement of time if the notice 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 notice 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 Sittings, he was only asking for an extension of time of four effective days. Order 2, rule 1 (3) of the High Court Rules, provides that where the limited time is less than six days, Saturdays, Sundays and public holidays are not to be reckoned as part of the time. The limited time under order 27, rule 10 is seven days. There are only five effective days in this period, so on this submission what Mr Mitchley is asking for is not an extension of only four effective days but that the time allowed should be almost doubled. 1966 ZR p108 RAMSAY J His submission is, however, based on a belief that time does not run during the vacation. 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 vacations respectively, but pleadings shall not be amended, delivered or filed during any other part of such vacations unless by the direction of the court or a judge.' And rule 5 is as follows: ' Save as in the last preceding rule mentioned the time of the Michaelmas and Christmas vacations in any year shall not be reckoned in the computation of times 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 mention 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 vacation shall be excluded in reckoning any period prescribed by these rules or by any order or direction for serving, filing, or amending any pleading.' In Re Beldan's Patent [2], it was held that this wording did not apply to a notice of appeal. I am told that the practice in the High Court Registry is not to file any papers other than those in the causes and matters detailed in order 40A, rule 3 (4). It appears to me that, if this is so, the practice is wrong, and that, apart from the amending, delivering and filing of pleadings time runs during the vacations. It follows, therefore, that the notice of appeal is seven weeks out of time. The fact that seven days is the period allowed not only for the filing of the notice 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 notice was at least six days out of time before the beginning of the vacation, and it is now seven weeks out of time. [4] The court, however, has a discretion to enlarge the time with a view to the avoidance of injustice to the parties. Mr Mitchley has submitted 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 time 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 position 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 practically 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 justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a timetable for the conduct of litigation.' The opinion goes on to deal with the material which was before the court below, and it continues: ' The principle for which the appellant's counsel contended was that the application 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 sitting at chambers I have often heard it argued that when irreparable mischief would be done by acceding to a tardy application, it being a departure from the ordinary practice, the person who has failed to act within the proper time ought to be the sufferer, but that in other cases the objection 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 observations were made in reference to a case where the application was to set aside a judgment by default, which is on a different basis from an application to extend the time for appealing. In the one case the litigant has had no trial at all; in the other he has had a trial and lost. Their Lordships do not regard these observations as of general application.' In the instant case I have considered the material which is before me, which could justify the granting of an extension of time. I have considered it, I do not think it sufficient to justify such an extension and in the exercise of my discretion, I refuse to grant an extension of time. Order accordingly