Sipambuleki v Ng'andu (Appeal No.91/2021) [2023] ZMCA 225 (31 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN ATNDOLA ( Civil Jurisdiction) BETWEEN: ABRAHAM SIP AMBULEKI AND DANNY MWANACHIMBENGU NG' ANDU Respondent CORAM: Chishimba, Sichinga on 24 and 31 August 2023 and Sharpe-Phiri, JJA For the Applicant: For the Respondent: Mr. B. Mwelwa and Mr. B. Phiri of Messrs Phiri and Partners . Absent Mwelwa, RULING SHARPE-PHIRI, JA, delivered the Ruling of the Court Legislation referred to: 1. The Court of Appeal 2. The Court of App eal Rules, Act No. 7 of2016 SI No. 65 of 2016. to: Authorities referred 1. Rachael Chomba) Lungu Saka v Hilda Bwalya Chomba CAZ/08/05/2017 (Sued as Administrator of the late J. M 2. ZCON Construction CAZ/08/151/2021, Company Limited No. 6 of2022 Appeal and Others v Access Bank Limited, Rl 1.0 INTRODUCTION 1.1 This is our ruling on two renewed brought applications by the Applicant, firstly for an order for extension of time within which to file an application for leave to appeal to the Supreme Court against the judgment of this Court of 2 June 2023 and secondly, for an order for stay of execution of the said judgment. 1.2 The applications have been brought by Notice of Motions dated 30 June 2023 made pursuant to the various provisions of the Court of Appeal Act, Court of Appeal Rules and the White Book, which will be below. elaborated 2.0 BACKGROUND 2.1 The brief background of the matter as can be discerned from the depositions in the affidavit in support of notice of motion filed on 30 June 2023 and deposed by Benzu Phiri, Advocate for the Applicant is that his law firm was instructed to take up this matter on 1 June 2023. 2.2 Following their retention, they conducted a search and on the record begun to study the proceedings in both the High Com1 and this Court to appreciate full history of the matter and attendant legal issues after to prepare which they proceeded a notice of motion for an order for extension of time in which to file an application for leave to appeal to the Supreme Court. R2 2.3 They realized that the time had lapsed for appealing they the judgment were instructed to appeal against but were aware that an application for extension of time can be brought to the Court, hence this application. 3.0 ARGUMENTS IN SUPPORT OF MOTION 3.1 The Applicant of filed skeleton arguments on 30 June 2023 in support the applications be contending therein that the extension of time should allowed appeal on the basis that the applicant's has reasonable prospects of success as provided for under Section 13 (3) (c) of CAA. 4.0 HEARING OF THE MOTION 4.1 The applications were heard on 24 August 2023. The Applicant was represented by Mr. Mwelwa and Mr. Phiri of Messrs Mwelwa Phiri and Partners. The Respondent was not present or represented at hearing and there was no affidavit in opposition on record. 4.2 Mr. Mwelwa relied on the skeleton arguments and affidavit in support of the application already on record. He argued that bringing the application for leave to appeal out of time was not deliberate but was as a result of receiving instructions late from their client. Counsel contended further that their delay was further exacerbated by the need to study the history and proceedings of this matter in both courts. He urged us to grant their applications. R3 5.0 DECISION OF THIS COURT 5.1 We have carefully considered the affidavit evidence, the arguments of Counsel for the Applicant and the relevant rules in relation to the two applications before us. There are two applications before us brought pursuant to Section 13(1) and (4) of the Court of Appeal Act (CAA) as read together with Order 7 Rule 1(1) and Order 13 Rule 3 of the Court of Appeal Rules (CAR) and Order 45 Rule 11 of the Rules of the Supreme Court of England, White book (1999 Edition). 5.2 We will begin by addressing the application for an order for extension of time within which to file leave to appeal to the Supreme Court against the judgment of this Court of2 June 2023. 5.3 In bringing this application, the Applicant relied on Section 13(1) of the CAA as read together with Order VII Rule 1(1) and Order XIII Rule (3) of the CAR. 5.4 Section 13(1) of the CAA provides that, 'an appeal from a judgment of the Court shall lie to the Supreme Court with leave of the Court.' Further, Section 13(2) of the CAA provides that 'an application for leave to appeal, under subsection (1), shall be made within fourteen days of the judgment. 5.5 The significance of the provisions above is that a person aggrieved by a decision of this Court must obtain leave of the Court to appeal to the Supreme Court and such application must be brought within fourteen days from the date of the judgment. R4 5.6 The record reveals that the Applicant is desirous to appeal to the Supreme Court of Zambia against the judgment of this Court of 2 June 2023. However, the application for leave to appeal was not filed within the requisite timeframe. The question for consideration in this application is whether this court should grant an order for extension of time within which to file an application for leave to appeal to the Supreme Court. 5. 7 In dealing with this issue of whether to exercise our discretion outside the time prescribed for doing an act, we have reviewed the provisions Order XIII Rule 3(1) of the CAR provides that 'the Court may, for sufficient reason extend the time for- (a) making an application, including for leave to an application appeal,· (b) bringing an appeal,· or (c) taking any step in or in connection with an appeal. 5.8 From the foregoing prov1s1on, this Court is empowered to exercise wide discretion regarding the granting of leave and the time within which an appeal can be filed. It does not stipulate the circumstances when such discretion may be exercised outside the time for filing an appeal, save to state that such power may be exercised for sufficient reason. 5 .9 To consider an application for leave out of time, the Applicant seeking leave must provide sufficient and satisfactory reasons as to why the application was not brought within the time prescribed for doing so. RS The affidavit evidence reveals that following delivery of judgment on 2 June 2023, the Applicant instructed counsel on 16 to lodge an appeal June 2023. When the Advocates received these instructions, they then proceeded to conduct a search on the record that they and discovered were out of time to appeal. Hence, they brought this application on 30 June 2023 for an extension of time to file the for leave to application appeal. 5.10 A review of the affidavit evidence shows that counsel for the Applicant has endeavoured to explain what transpired from when he was retained to act in this matter. However, the Applicant has not provided any explanation whatsoever for not instructing counsel to lodge an appeal on time. As stated, the onus is on the Applicant to provide sufficient reasons and satisfactory as to why the application was not brought within the time prescribed for doing so. Yet, the Applicant has failed to do so. 5.11 We have previously stated our position on this subject in the case of Rachael Lungu Saka v Hilda Bwalya Chomba (Sued as Administrator that it is of the late J. M. Chomba) where we clarified fundamental to adhere to rules of procedure in the administration and dispensation of justice. 5.12 We have also repeated this position in the case of ZCON Construction Company Limited and Others v Access Bank Limited where we refused to allow the appeal to be brought out of time because a patty required more time to study the judgment subject of the intended appeal. R6 5 .13 The rules of procedure are prescribed by statute, and in this instance, the appeal ought to have been brought within 14 days from date of judgment. A party disregarding the rules of this Court must face the consequences and sanctions that follow. Based on the foregoing, and the failure of the Applicant to demonstrate satisfactory and convincing reasons to allow the application, we see no basis for granting the application for an extension for leave to of time to file an application appeal to the Supreme Court. The application according fails. 6.0 CONCLUSION 6.1 This motion for an extension of time for leave to appeal being unsuccessful, there is no basis for the application for stay of execution of the judgment of 2 June 2023. The application for stay equally fails. 6.2 Turning to the question of the costs of these motions, we make no order as to costs, as the Respondent has not taken any steps in both applications and did not attend court. F. M. Chishimba COURT OF APPEAL JUDGE � D. L. Y Sichin a, SC COURT ot' APPE L JUDGE -- N. A. Sharpe-Phin A� f2:= COURT OF APPEAL JUDGE R7