Waco Africa (Division of Construction & Industrial Maintenance Services Limited) v Kenson Mitawa (APP NO 2023/HN/IR/38) [2024] ZMHC 319 (15 July 2024)

IN THE HIGH COURT FORZAMBIA APP NO 2023/HN/IR/38 INDUSTRIAL/LABOUR DIVISION HOLDEN AT NDOLA (LABOUR JURISDICTION) . BETWEEN: WACO AFRICA (Division of Construction..&-lffd APPLICANT Maintenance Services Limited) trial ~,G't;0~~r~~~,~~4/s1,, Q I 5 JUl 2025 ~ n1v1ci--· -, AND KENSON MITAWA RESPONDENT Before:The Honourable Mr. Justice D. Mulenga this 15th day of July, 2025. For the Applicant Mr. E. S Lilanda of Messrs Mulenga · Mundashi Legal Practitioner For the Respondent Mrs. L. T. Chilinda of Messrs James & Doris Legal Practitioners RULING Cases referred to: 1. Bata Shoe Company Limited v Damiano Mtabilika (2010) Z. R.44 2. Eric Mwanza & Two Others v Sebastian Saizi Zulu CAZ/08/2019 3. Golden Lotus Insurance Company Limited v Zesco Limited CAZ/08/266/2022 4. Nkhuwa v Lusaka Services Limited (1997) Z. R 43 5. Savenda Management Services Limited v Stanbic Zambia Limited SCZ Appeal No. 002/2017 1.0 INTRODUCTION 1.1 The Applicant herein was the Respondent in the main cause and the Respondent was the complainant. They shall be referred to herein as the 'Applicant' and the 'Respondent'. 1.2 The ruling herein is on the Applicant's application filed on 7th April, 2025 for an order to extend time within which to file the notice of Appeal and memorandum of Appeal, against the final judgment of my learned brother Hon. Mr. Justice E. L. Musona delivered on 31st January, 2025. 1.3 The application is made pursuant to Rule 47 of the Industrial Relations Court Rules, Chapter 269 of the laws of Zambia. It is supported by the affidavit sworn by the Applicant's learned Counsel, list of authorities and skeleton arguments. 1.4 The application is opposed by the Respondent and to that effect, the Respondent filed an affidavit in oppos1non sworn by learned Counsel for the Respondent Mrs L. T. Chilinda, list of authorities and skeletons argument. The Applicant filed the affidavit in reply on 2nd May, 2025. 2.0 THE APPLICANT'S APPLICATION AND ARGMENTS 2.1 The kernel of the Applicant's application is that the judgment was delivered on 31 st January, 2025, however, the same was initially scheduled to be delivered by the court on 1st November, 2024. Judgment was not delivered on the scheduled date, nonetheless, the Respondent served the judgment on the Applicant on 17th March, 2025. 2.2 It is the Applicant's contention that at the time the Respondent served the judgment, it was 14 days after the expiration of the thirty (30) days in which to file the appeal. On reliance on rule 4 7 of the Industrial Relations Court Rules, chapter 269 and the Supreme Courts' decision in the case of Bata Shoe Company Limited v Damiano Mtabilika 1 submitted that the application is properly before this court, as rule 4 7 deals with extension or acknowledgement of time for any act prescribed under the rules or ordered by the court. 2.3 The Applicant also submitted and relied on the court of Appeal decision of Eric Mwanza & Two Others v Sebastian Saizi Zulu2 that this court (as a High Court) has jurisdiction to deal with applications for extension of time within which to file the notice of Appeal and memorandum of Appeal. 2.4 The Applicant submitted that when the court is deciding whether or not to grant an application for extension of time in which to file the notice of Appeal and memorandum of Appeal, it has to take into account whether there is good cause for granting the extension, the circumstances and reasons for delay, length of the delay and whether the other party will suffer prejudice if the application for extension is granted. 2.5 The Applicant also expressed the view and placed reliance on the case of Golden Lotus Insurance Company Limited v Zesco Limited3, that every litigant who is aggrieved by a judgment of the High Court has a right to appeal to the court of Appeal. The Applicant maintained that the reason for delay to file the notice of Appeal and memorandum of Appeal has been demonstrated vide the affidavit evidence that the Respondent's advocates only served the copy of the judgment on 17th March, 2025, the same was 14 days after the thirty (30) days period of appealing had lapsed. 3.0 THE RESPONDENT'S OPPOSITION AND ARGUMENTS 3.1 The gist of the Respondent's opposition to the application is that the Respondent as the Complainant in the main cause is not obligated under any rule to serve the judgment on the Applicant as its advocate was in court when the judge set a date for delivery of judgment, therefore, had a duty to follow up on the delivery of judgment. 3.2 The Respondent contends that the Applicant has not provided material basis upon which the court could be moved to grant leave to appeal. Further, that if the application is allowed, the Respondent will be prejudiced as the appeal is intended to rob the Respondent of his right to enjoy the fruits of his judgment. 3.3 The Respondent submits that it is trite that the grant of leave to appeal out of time and/or extension of time is in the discretion of the court. The said discretion should be exercised judiciously and not arbitrarily. It should be based on sufficient and compelling cause. Reliance is placed on the case of Nkhuwa v Lusaka Services Limited4, where it was held that the court will not exercise its discretion to extend time without good cause. 3.4 The Respondent made reference to the case Savenda Management Services Limited v Stanbic Bank Zambia 5 and argued that the advocates for the Applicant was present in open court when the court gave the date of delivery of judgment and uplifting the same. Therefore, the Applicant's excuse regarding lack of service of the copy of the judgment is legally untenable. 3.5 It is the Respondent's position that the Applicant made no serious effort to comply with the timeline within which to lodge an appeal as provided for by order 10 rule 3(5) of the court of Appeal rules, Statutory Instrument no. 65 of 2016. Reference was made to the case of Eastern and Southern African Trade and Development Bank v Finsbury Investments Llmited6 , in which a delay of one day was held to be inordinate in the absence of sufficient explanation. 3.6 The Respondent maintained that the application must be dismissed with costs. 4.0 CONSIDERATION AND DECISION 4.1 I have considered the parties arguments and submissions. The issue for determination is whether the application for extension of time within which to file the notice of Appeal and memorandum of Appeal against the judgment dated 31 st January, 2025, to the court of Appeal, should be granted. 4.2 Perusal of the court record shows that on 14th October, 2024 the court set 1st November, 2024 as the date of delivery of judgment. There is no doubt that judgment was not delivered on the scheduled date but on 31 st January, 2025. 4.3 The Applicant's position is that it was not aware of the delivery of the judgment until the 17th March, 2025 when it was served by the Respondent. At the date of service of judgment the period within which to file the appeal had expired 14 days before. It is the Respondent's argument 1n opposition to the application that there is no legal obligation on the Respondent to serve the copy of the judgment on the Applicant. 4.4 I opine that it is crucial in this application to appreciate on who is the obligation to effect service of legal process or copy of judgment, in this court. Rule 10 of the Industrial and Labour Relations Court rules, chapter 269 of the laws of Zambia (hereafter referred to only as 'Industrial Relations Court rules'), as regards service of notice of complaint provides:- 10. On receipt of a notice under rule 9, the Registrar shall register the notice in the court register and endorse the registration number thereon and seal the notice with the court's seal, and shall return a sealed copy of the notice to the complainant and serve a sealed copy thereof on any person from whom any relief is claimed (and on any other person considered by the court to be a proper party to proceedings), and every such person shall be respondent to the complaint. Further, as in respect to the Respondents answer rule 11(2) provides:- 11.(2) A respondent who desires to answer a complaint shall within the time appointed under sub-rule (1), deliver to the court an answer in or substantially in accordance with, form Industrial Relations Court 10 contained in part B of the schedule, settling out his answer to the complaint, and the Registrar shall serve a copy of such answer on every other party to the proceedings. 4.5 It can be seen from the foregoing rules of the Industrial Relations Court, that the obligation to effect service of legal process is on the Registrar and not the party filing the same into court. 4.6 Turning to the disposal of the complaint stage, rule 12 of the Industrial Relations Court rules, provides: 12. The Registrar shall as soon as practicable, give to every party to the proceedings notice of the arrangements made by the court for hearing the complaint. 4. 7 Clearly, the procedure in this court is that the obligation to effect service of legal process which includes copies of the judgment on the parties is on the Registrar. There is no obligation on the parties to effect service. 4.8 It is therefore, the considered position of this court that when the court did not deliver judgment on the scheduled date 1st November, 2024, the Registrar of the court should have issued and served on both parties the notice of subsequent date of delivery of judgment, the same being 31st January, 2025. Perusal of the court record herein shows that there was no such notice of delivery of judgment issued to the parties by court registry. 4.9 Against that backdrop it is clear that the Applicant was not aware of the judgment until the same was served on it by the Respondent. The Applicant has therefore presented sufficient cause for the delay in lodging its notice of appeal and memorandum of appeal. I find this to be a proper application to exercise my discretion to allow the application. The application for extension of time in which to file the notice of appeal and memorandum of Appeal is hereby granted. 4:10 The Applicant should file the notice of Appeal and memorandum, of Appeal to the court of Appeal within twenty one (21) days from the date hereof. 4.11 Each party shall bear their own costs. Delivered at Ndola this 15 th day of July, 2025. Hon. Jus · ce D. Mulenga HIGH COURT JUDGE