Zambia State Insurance Corporation Ltd v Yousuf Adam Patel (Trading as Karachi Stree Shopping Centre) (APPEAL NO. 40 of 1990) [1991] ZMSC 57 (23 April 1991)

IN THE SUPREME COURT OF ZWBIA APPEAL NO. 40 of 1990 HOLDEN AT LUSAKA (Civil Jurisdiction) ZAM3IA STATE INSURANCE CORPORATION LIMITED Plaintiff v YOUSUF ADAM PATEL (TRADING AS KARACHI STREE SUPPING CENTRE) Respondent ' >1 ♦ CORAM: Gardner, AJ. S., Sakala and Chaila, JJ. S., 23rd April, 1991. Mr. M. M. Mundashi, Zambia State Insurance Corporation Ltd. appeared for the appellant Mr. Y. A. Patel of Nyangulu and Co. appeared for the respondent JUDGMENT Gardner, AJ. S., delivered the judgment of the court. Cases referred to:- (1) Mutwale v Professional Services Limited (1984) Z. R. 72 This is an appeal from a ruling of a High Court appellate judge refusing to grant leave to appeal out of time from a decision of a deputy registrar. The facts of the case are that the appellant is the owner of a building consisting of business premises occupied by the respondent. The appellant allegedly required the premises for the use of its staff, and accordingly it served notice on the respondent and subsequently issued the writ in this case demanding possession of . the premises for its staff. After the issue of the writ the appellant took out a summons under Order 13 for a summary order for possession. This summons was supported by an affidavit to the effect that the premises were required for the use of the appellants staff, and there was an affidavit in opposition sworn by the respondent to the effect that there had been previous proceedings when he had applied for the grant of a new tenancy .../J2 ... and the High Court judge had ruled that she had no jurisdiction to hear the application for a new tenancy neither had she jurisdiction to grant an order for possession to the appellants in this case. The affidavit in opposition went on to say that the respondent had never defaulted in any way in connection with the terms of the lease and that he had no alternative accommodation to go to. The affidavit also indicated that the respondent would seek to prove that the appellant had no approved plans for the proposed occupation of the premises by its staff and to this reason the appellant would be unable to prove that they required the premises for such occupation. At the hearing before the deputy registrar of the summons for judgment, before the merits of that application could be considered, the respondent's advocates raised a preliminary point that, as a result of this court's ruling in the case of Mutwale v Professional Services Limited (1) the court had no jurisdiction to hear the application for possession because no state consent had been obtained prior to the lease to the respondent. The learned deputy registrar ruled that, despite the fact that notice to quit had been served, reposession of the property formed part of the terms of contract, consequent!)', as the contract was unenforceable in terms of our judgment in the Mutwale case, no order of possession could be made. In fact this ruling, of course, meant that the respondent , and all others like him where there has been no state consent to their leases, would be able to remain in possession of the property for the rest of their lives. It is against this ruling and the ruling of the appellate judge that because the appellant was out of time in its appeal the appeal-must not fail .• that the appellant now appeals. At the outset of this appeal we placed the onus of the advocates for the respondent to indicate why the two decisions which are the subject of this appeal should not be set aside?' . ~ Mr. Patel on behalf of the respondent argued that in this case not only had there been a delay of 47 days over and above the 7-days the time allowed by the Rules for an appeal against a deputy registrar's decision, but also there .had been a mala fides in the conduct of the case by the advocates for the appellant in that, although one reason for causing their delay in appealing was that they said they had received the decision of the deputy registrar late, another reason was that the advocate having the conduct of the case on behalf of the appellant had been sick. Mr. Patel pointed out to us there were two affidavits filed in support of the application-to appeal out of time. The first was sworn on 30th of August, 1990 and stated that the reason for the delay was the late receipt of the decision of the deputy registrar. There was then an affidavit in opposition dated the 14th of September, 1990 in which it was argued that despite the excuse of the late receipt of the deputy registrar's decision the appeal was still well out of time. Mr. Patel pointed out that then on the 9th of October, 1990 a further affidavit in reply was put in by the appellant's advocates in which, in addition to the late receipt of the deputy registrar's decision, the advocate stated for the first time that he had been ill with malaria and had been unable to instruct others in the matter. This argued Mr. Patel, gave rise to doubts about the bona fides of the excuse and that amounted to mala fides. In this respect we would say immediately that we do not accept that a mere doubt about bona fides is enought to indicate mala fides, and, in this particular case, although we are not called upon to make a finding about the exact facts of the advocate's illness, we are satisfied that the lack of mention of that excuse in the first affidavit did not amount even to a suspicion of mala fides. For those reasons we will dismiss the suggestion that the application of the appellant should not be entertained because of mala fides. As to the question of delay, this court has discussed the question of delay on a number of occasions and certainly where appellants have been out of time for appeal there have been cases where time linits have been strictly .imposed. We have always pointed out, however, that before trial, where there is some excuse for delay,.it is better that cases should come to trail so that justice may be done rather than that strict adherence to procedure should prevent the hearing of such cases. We reiterate that principle in this case and have to say that having regard to the excuse put forward for the appellant we find that the delay was not inordinate and does not debar the appellant from the relief sought. We now come to deal with the merits of the case. Mr. Patel argued that the affidavit in opposition to the Order 13 summons .indicated that the respondent had a defence to the application for possession in that he alleged that he would be able.to say at the trial that the appelalnt could not prove a genuine intention ,.../J4 .... to use the premises for its own staff. Mr. Mundashi in reply, whilst not accepting that such a defence would succeed, very properly indicated that in his view there was a triable issue in this case and it would be proper for the case to come to trial. It appears, therefore, that this would have been an appropriate case, had it not been for the preliminary point raised by the respondent, for leave to defend to have been granted to the respondent. For the reasons which we have given the appeal is allowed. The order of the deputy registrar that the court had no jurisdiction to hear the case is set aside and so is the order of the judge refusing leave to appealjput of time against such order. The respobent will be granted leave to defend. A summons for directions must be taken out by the appellant and the case must proceed to trial. Costs of this appeal and in the court below to the appellant. B. T. GARDNER ACTING SUPREME COURT JUDGE E. L. SAKALA SUPREME COURT JUDGE I' ‘ ‘ . M. S. CHAILA SUPREME COURT JUDGE