Ali Camara v CS Property Limited (APPLICATION NO. 46/2023) [2023] ZMCA 375 (17 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPLICATION NO. 46/2023 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ALI CAMARA AND APPLICANT CS PROPERTY LIMITED RESPONDENT CORAM: SIA VWAPA, JP, NGULUBE AND CHEMBE, JJA. On 13t h November, 2023 and 17th November, 2023. For the Applicant No appearance For the Respondent : No app earance RULING NGULUBE JA, delivered the Ruling of the Court. Legislation referred to: 1. 2. The Court of Appeal Act Number 7 of 2016 The Court of Appeal Rules, Statutory Instrument No. 65 of2016 1.0 INTRODUCTION 1.1 This is the a pplicant's Notice of Motion to vary/ discharge/ reverse the Ruling of a s ingle Judge of t his Court and renew an a pplication fo r exten s ion of time pursuant to section 9(b) of the Court of Appeal Act Number 7 of 2016 and Order X Rule 2(8) of the Court of Appeal Rules, 2016. 1.2 Th e Notice of Motion is premised on two ground s which are that- 1. The Honourable single Judge of this Honourable Court misdirected himself in law and fact, when he granted the applicant leave to file an affidavit in reply and skeleton arguments, on or before 22nd June, 2023 and stated that his Ruling would be delivered within two weeks after the applicant had filed his affidavit in reply and skeleton arguments, he proceeded to render his ruling on 19th June, 2023, dismissing the applicant's application for extension of time within which to file his record of appeal. 2 . The learned single Judge erred in law and fact in exercising his discretion in the manner that he did. 2.0 BACKGROUND 2.1 In the affidavit in support of the motion, the applicant deposed that he was dissatisfied with a Judgment of the High Court that was delivered on 4 April, 2023 and launched an appeal to this Court, filing a Notice of Appeal and Memorandum of Appeal on 11 April, 2023. -R2- 3.0 ARGUMENTS IN SUPPORT 3 .1 On 9 May, 2023, the applicant's Advocates and the respondent's Advocates filed Consent Summons and a Consent Order, to a llow the applicant to file the record of a ppeal out of time . The Consent Order was signed by the Court on 1 7 May, 2023 but was not served on his Advocates nor was it put in their pigeon hole. 3.2 After the 14 day p eriod within which th e a pplicant should have filed his record of a ppeal had elapsed and after following up with the single Judge's marshal the applicant's a dvocates wer e informed that the consent order had since been signed by the single Judge. Due to the time constraint, the applicant's Advocates made an application for extension of time within which they could file the record of a ppeal. 3 .3 On 16 June, 2023 wh en the matter came up for the h earing of the application, the applicant's Advocates sought an a djournment to file an affidavit in reply s ince they had just been served with the respondent's affidavit in opposition and skeleton arguments . The applicant's Advocates were granted an adjournment to 22 June, 2023, wh en th e learned single Judge would render his Ruling. 3.4 However , on 19 June, 2023, before the applicant's Advocates even filed their affidavit in reply and skeleton arguments, the single -R3- Judge rendered his Ruling and dismissed the applicant's application for extension of time. 3.5 The respondent did not file an affidavit in opposition to the motion. 4 .0 ANALYSIS AND DECISION OF THE COURT 4 .1 We have considered the motion, the grounds of appeal in support of the said motion and the Record. 4 .2 Of particular interest is the consent order that was endorsed by the court on 17 May, 2023. It allowed the applicant to file the record of appeal and heads of argument within fourteen days from the date of the order. However, prior to the expiry of the fourteen days within which the applicant should have filed his record of appeal and heads of argument, the learned single Judge rendered a Ruling, dismissing the applicant's application for extension of time within which to file the record of appeal and h eads of argument, stating that the applicant had failed to provide sufficient material upon which the Court could grant th e application. 4.3 However, in the Consent Order that the learned single Judge endorsed on 17 May, 2023, the single Judge ordered that- -R4- ''the applicant shall file the record of appeal and heads of argument within fourteen days of the date of this order." 4.4 It was therefore a misdirection for the single Judge when he rendered a Ruling dismissing the applicant's application for extension of time because he went contrary to what he ordered in the Consent Order that he endorsed earlier. 5.0 CONCLUSION 5. 1 This Motion accordingly succeeds. We here by reverse the Ruling of the single Judge and we order that the applicant files his record of a ppeal and heads of argument within 14 days of the date of this Ruling. M. J . SIAVWAPA JUDGE PRESIDENT P. C. M. NGULUBE COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE -RS-