Andrea Porro v Grant Andrew Cooke and ors (2018/HP/2208) [2022] ZMHC 104 (6 April 2022)

IN THE HIGH COURT OF ZAMBIA 2018/HP/2208 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (G'ivil Jurisdiction) BETWEEN: ANDREA PORRO AND GRANT ANDREW COOKE CHRISTOPHER COOKE HOWARD COOKE 1 sT DEFENDANT 2ND DEFENDANT 3RD DEFENDANT BEFORE THE HONOURABLE LADY JUSTICE P. K. YANGAILO, IN CHAMBERS, ON THE 6TH DAY OF APRIL, 2022, AT 14:00 HOURS. For the Plaintiff Mr. J. Njovu - /'v!essrs. Mwenye & Mwitwa For the Defendants: Mr. B. Mukatuka - Messrs. Robson Advocates. Malipenga & Co. RULING CASES REFERRED TO: J. Twampane Miriiny Cooperative Society Limited u E. and M. Storti Mining Limited - SCZ ,Jud(pnent no. 20 of 201 J; 2. Palata bwestment Limited and Others v Burl a.n.d Sirtfield Limited and Others (1985) All E. R. 517; 3. Stanley Mwa.m/Jazi v Morester Fcmns Limited (1977) Z. R. 108; and 4. Lur19u 11 Kalikeka {Appeal No. 114/2013) /2014/ Zl'o'/SC 37. Rl l P age LEGISLATION REFERRED TO: 1. The High Cowt Act, Chapter 2 7, Volume 3 ofthe Laws of Zambia; a nd 2. The Rules oft he S upreme Court of England, 1999 Edition, London Si.oeet & Max.well. INTRODUCTION 1. 1 This Ruling is in respect of an Appeal by the Defendants against the Ruling of the Learned District Registrar, made on 25th November, 2021, dismissing the Defendants' application for leave to appeal to a Judge in Chambers, on the basis that the Defendants did not adhere to the rules of Court and that the application to appeal out of time was not made promptly. BACKGROUND 2. 1 The background to this appeal, as can be gleaned from the record, is that on 18th March, 2019, the Defendants filed an application to dismiss this action for want of cause of action and irregularities. In reaction to this application, the Plaintiff filed a Notice of Motion to raise preliminary issues on 26th April, 2019 . 2.2 The issues raised by the Plaintiff related to the Defendants' Affidavit in Support of the application to dismiss this action, which was deposed to by one Bin\vell Mukatuka, Counse l for the Defendants. The Plaintiff had issue \vith the said Affidavit, which h e felt contained , inter alia, contentious and extraneous matters. The Plaintiff further felt t hat the said Affidavit did not con tain a statement of R21 P age facts and circumstances to which the deponent deposed either of his own personal kno-wledge or from information which he believed to be true. 2 .3 The preliminary issues raised by the Plaintiff were considered and determined by the Learned Deputy Registrar, Honourable L. Ng'ambi, on 4 th December, 2019. In the Ruling delivered on 20th February, 2020, the Deputy Registrar upheld the preliminary issues raised by the Plaintiff and dismissed the Defendants' application. 2.4 The Defendants did not appeal against the Deputy Registrar's Ruling and this Court scheduled the matter for status conference on 18th March, 2020. On the return date, the Defendants sought an adjournment on the basis that they intended to appeal against the Ruling of the Deputy Registrar, which application was not granted and the Court proceeded to issue an Order for Directions, which to date the Defendants have disregarded. 2 .5 On 28th April, 2020, the Defendants applied before this Court for leave to appeal out of time, when such an application should have been made before the Deputy Registrar who delivered the Ruling that they are dissatisfied with. They were guided to make the application before the appropriate Court and subsequently, were granted leave to appeal before a Judge in Chambers on 3 rd June, 2020, by the Deputy Registrar. R3 I Page 2.6 The Defendants did not file the necessary Notice of Appeal before this Court and again made an application before the Deputy Registrar on 27t h July, 2021, for leave to appeal out of time, which application was denied by Ruling of the District Registrar delivered on 25 th November, 2021. 2.7 It is against this backdrop t hat the Defendants filed a Notice of Appeal on 1st December, 2021, wherein they stated that they were dissatisfied with the Ruling of the Learned District Registrar made on 25 th November, 2021. THE HEARING 3.1 I scheduled the hearing of the appeal to 24 t h March, 2022. On the return date on 24 th March, 2022, the Court at the request of the Plaintiff, ordered both the Plaint iff and the Defendants to file \vritten submissions, upon which this Court would render its Ruling. The Plaintiff filed his \'.rritten submissions on 28 th March, 2022. However, the Defendants did not file any submissions. SUBMISSIONS 4.1 By the Plaintiff's Skeleton Arguments and List of Authorities, in Opposition to the Notice of Appeal before a Judge in Chambers, filed on 28 th :tvlarch, 2022, the Plaintiff's Counsel submitted that the rules of this Cour t are very clear on the time within which a party ought to appeal against a decision of the Deputy Registrar to a R4 I P age Judge in Chambers. Counsel cited Order XXX, Rule 10 (1) of The High Court Rules' and subm itted that a party has seven (7) days within which to appeal against a decision of the Registrar. 4.2 Counsel further submitted that the Defendants have had a slacked attitude towards the prosecution of their alleged appeal . To fortify this submission, Counsel contended that the Notice to Appeal ought to have been filed seven days from 20t h February, 2020, when the Ruling was ren dered. Counsel went on to state that the record showed that the Defendants were additionally granted leave to appeal out of time on 3 rd June, 2021. However, the Defendants did not file their notice of appeal but rather made an application for leave to appeal before a Judge in Charge on 27th July, 2021 , on the basis that they ·were not aware of the order of the Court dated 3 rd June, 2021, granting the m leave to appeal out of time. 4.3 Counsel further submitted that the Defendants had failed to act on time twice and this shows that th ey are not desirous to prosecute the matter but have engaged in a series of applications for leave to appeal out of time, which actions indicate that the Defen dants do not intend to defend the matter and are ,vasting the Court's time. 4.4 Counsel cited Order 59, Rule 4 (17) of The Rules of the Supreme Court2 , which provides that where an RS I Page application for an extens ion of time to a ppeal is sought, it must be made p romptly. Based on the foregoing, Counsel submitted that the Defen dants h ave at both times delayed in taking action towards pursuing their app eal, which delay has been inordinate without any excu sable rea son. In suppor t of the foregoing, Counsel cited the case of Twampane Mining Cooperative Society Limited v E. and M. Storti Mining Limited'. 4. 5 Furth ermore, it was subm itted by Cou nsel that the Learned District Registrar \'las on firm grou nd when it declined to grant the Defendants' application for leave to appeal out of time. In support of this submission, Counsel cited the case of Palata Investment Limited and Others v Burt and Sin.field Limited and Others2 , wh er e it was held as follows: - "In cas e s where the delay was very short and there was an acceptable excuse for the delay, as a general ru le the appellant should not be deprived of his right of appeal and so no ques tion of the merits of the appeal will rise. We wish to emphasize that the discretion which fell to be exercised is unfettered and should be exercised flexibly with regard to the facts of the particular case. No doubt in some cases it may be material to have regard to the merits of the appeal, because it may be wrong, and indeed may be unkindness to the appe llant himself t o extend his t ime for appealing after he has allowed the R6 1 Page time to elapse, to enable him to pursue a hopeless appeal ... " 4.6 Counsel contended that the intended appeal has no prospects of success as the Defendants have not s h o\\rn the grounds upon which the appeal is a nchored. It was further contended that the Notice of Appeal filed on 1st December , 202 1, does not even s h ow the grounds on which the appeal is premised. Counsel cited the case of Stanley Mwambazi v Morester Farms Limited3 wh ere it was held as follows: - " ... on the other hand it would be poi ntless to allow an extension for an appeal which has no hope of any success. " 4.7 Based on the foregoing, it was submitted that this Court is mandated to consider the prospects of s uccess of the appeal when considering this applicalion. Counsel further submitted that as there were no grou nds, it was clear that the a ppeal has no prospects of success. CONSIDERATION AND DECISION OF THE COURT 5.1 I have seriously considered this appeal, logether \vith the Ruling by the Learned District Registrar, dated 25th November, 202 1. I h ave also considered the Skeleton Arguments filed on behalf of the Plaintiff and the authorities cited, for which I am grateful lo Counsel for the Plaintiff. R7 I P age 5.2 In determ ining this appeal, I am guided in my a pproach by the Supreme Court Judgment of Lungu v Kalikeka4 , wherein it was held as follows: - "In Darlington v. Mitchell Construction Company Limited cited by Mr. Mu mba, Evans Ag, J, applying Evans v. Bartlam stated that a Judge who hears an appeal from a Registrar must exercise his judgment and discretion anew and independently as though the matter came before him for the fi.rst time though he must give the weight it dese rves to t he Registrar's dec ision. This is the correct position even today." (Court's emphasis) 5.3 As earlier stated in paragraph 2 above, on 3 rd Jun e, 2021, the Defendants were granted leave to appeal out of time against the Ruling of the learned Dep uty Regis trar dated 20th February, 2020, wherein the Plaintiffs preliminary issues were upheld and the Defendants' application to dismiss this action was dismissed. Th e Defendants did not proceed to appeal again st th e said Ruling and alleged that this was becau se they were not aware of the Order of the Court. In s tead of filing a Notice of Appeal, the Defendants pr oceeded to make another application on 27 th July, 2021, seeking leave to a ppeal to a Judge in Chambers. In oppos ition to the said application, the Plaintiff conte n ded that the Defendants were obligated to file their intended appeal as s oon as leave of Court was granted on 3 rd June, 2021, but neglected to do so within RSI Page the period prescribed by law. The Plaintiff further contended that the Defendants were aware that the Court had granted the application for leave to appeal out of time on 3 rd June, 2021, but proceeded to file an application to appeal to a Judge in chambers on 27ch July, 2021. 5.4 By the learn ed District Registrar's Ruling of 25th November, 2021 , the Defendants' application for leave to appeal to a Judge in Chambers was declined on the basis that the Defendants did not adhere to the rules of Court and that the application to appeal out of time was not made promptly. It is this Ruling that is the subject of this appeal. 5.5 I note from the onset and as rightly pointed out by the Counsel for the Plaintiff in his Skeleton Arguments that besides filing a Notice of Appeal wherein the Defendants stated that they were dissatisfied with the Ruling delivered by the Learned District Registrar on 25 th November, 202 1 and intended to appeal, the Defendants did not file any grounds on ·which their appeal is anchored. This position leaves the Court with no basis on which to consider the Defendants' appeal against the Ruling of 25t h November, 2021. 5.6 In the interest of ensuring that all matters in controversy between the parties are completely and finally determined, I shall proceed to consider the Defendants' appeal by R9I Page rev1e\\11ng the Ruling of the Learned Deputy Registrar of 25t h November, 2021, in order to establish whether the Learned Deputy Registrar erred in law and in fact when s h e dismissed th e Defendants' application for an order of appeal to a Judge in Chambers. My decision to proceed in this manner is fortified by Section 13 of The High Court Act1 which provides as follows : - "In every civil cause or matter which shall come in dependence in the Court, law and equity shall be administered concurrently, and the Court, in the exercise of the jurisdiction vested in it, shall have the power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies or reliefs whatsoever, interlocutory or final, to which any of the parties thereto may appear to be entitled in respect of any and every legal or equitable claim or defence properly brought forward by them respectively or which shall appear in such cause or matter, so that, as far as possible, all matters in controversy between the said parties may be completely and finally determined, and all multiplicity o f legal proceedings concerning any o f such matters avoided; and in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail. " (Court's emphas is) 5. 7 On my analysis of th e Ruling of the District Registrar dated 25thNovember, 2021, it is clear that th e basis of her refusal RlO I P age to grant the application to appeal to a Judge in Ch ambers was based on the Defendants' failure to adhere to the rules of Court and inability to promptly appeal out of t ime. 5.8 Order XXX, Rule 10 (1) of The High Court Rules1 provides as follows: - "A person affected by any decision, order or direction of the Registrar may appeal therefrom to a Judge in Chambers. Such appeal may be by notice in writing to attend before the Judge with fresh summons, within seven days after 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." (Court's emphasis) 5 .9 The forego ing authority which was also cited by the District Registrar in the Ruling subject of this appeal, clearly prescribes the manner in which a person affected by a decision of the Registrar should proceed to appeal. The said provision prescribes 7 days within which a Notice to Appeal against a decision of the Registrar should be filed. 5. 10 From the facts on record, on 3 rd June, 2021 , the Defendants were granted leave to appeal out of time against the Ruling dated 20 th February, 2020. This is a n indication that the Defendants had initially failed to adhere lo the prescribed 7 days within which a party ought Rlll Page to file a notice of appeal following a decision of the Registrar. 5.11 Further, after the grant of leave to appeal out of time on 3 rd June, 2021, the Defendants did not p romptly file a Notice of Appeal on the basis th at they were not aware of the said Order granting them leave to appeal out of time. However, the facts on r ecord show that when the matter came up for hearing on 17t h June, 2021 , t h e Defendants were informed that the Deputy Registrar had granted them leave to appeal out of tim e on 3 rd June, 2021. Never th eless, instead of promptly filing a Notice of Appeal thereafter, the Defendants sat on their rights and proceeded to make another application for leave to appeal to a Judge in Chambers on 27 th July, 2021. 5.12 In the case of Twampane Mining Cooperative Society Limited v E . and M. Storti Mining Limited1 cited above, the Supreme Court held as follows: - "The Court will not grant an extension of time to appeal where the applicant sat on its rights by not appealing w ithin the prescribed period and/o r by not filing its application for exte nsion of time promptly." 5.13 On the strength of the foregoing authority and the facts highlighted above, I find that the Learned District Registrar was on firm ground when she declined to grant the order for leave to appeal to a Judge in chambers on the Rl2 I P age basis that the Defendants did not adhere to the rules of Court and that the application to appeal out of time was not made promptly. 5. 14 I therefore uphold the Ruling of the Learned District Registrar of 25th Novem ber, 2021 , in its en tirety. 5.15 Costs are for the Plaintiff to be taxed in default of agreement. 5. 16 Leave to Appeal is here by granted. SIGNED, SEALED AND DELIVERED AT LUSAKA, ON 6TH DAY OF APRIL,2022 ~A lLO HIGH COURT JUDGE R13J Page