Angela Sabe Siamuzwide v Stephen Jere and Anor (CAZ/08/268/2019) [2020] ZMCA 236 (10 September 2020)

IN THE COURT OF APPEAL FOR ZAMB Z/O8/268/2019 HOLDEN AT LUSAKA COUR (Civil Jurisdiction) BETWEEN: . 'fi 1 ; --;;_ ~~ l)t}j 20. ts'rRy 2 7, LUSA ANGELA SABE SIAMUUZWIDE APPELLANT AND STEPHEN JERE SUNDAIH MBWELENGE SIAMUUZWIDE 1st RESPONDENT 2 nd RESPONDENT Before The Honourable Mrs. Justice P. C. M. Ngulube in Chambers. For the Appellant: B. Phiri, Nlessrs Linus E. Eyaa & Partners For the Respondents: M. Kasaji, Messrs C. L. Mundia & Company RULING Cases referred to: 1. Simeza Sangwa and Associates and 4 others v O 'dys Works Limited SCZ/8/402/2012 2. Stanley Mwambazi v Morester Farms Limited (1977) ZR 108 (SC) Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No 65 of 2016 2. The Supreme Court Practice, White Book 1999 Edition. R2 Introduction 1. This is the appellant's application for an order for leave to file an application for leave to file the appellant's record of appeal and heads of arguments out of time. Background 2. The brief background of this application is that on 15th August, 2019, the Court below delivered a judgment wherein the appellant's action was dismissed for multiplicity of action. Being dissatisfied with the Judgment, the appellant filed a notice of motion and memorandum of appeal on 29th August, 2019. Main Application 3. The application is supported by an affidavit sworn by Angela Sabe Siamuuzwide the appellant herein. She averred that 60 days have passed from the time she filed the notice of appeal and the memorandum of appeal and that she has not yet filed the record of appeal and heads of argument. She further avers that the further 21 days period provided by the law within which to file an application for extension of time or to file the Record of Appeal and Heads of Argument out of time has also expired and she has yet to lodge her record of appeal and heads of argument. She avers that the delay has R3 been necessitated by the fact that the record of proceedings by the court below is yet to be prepared. The deponent urged this court to grant her the application as the delay has not been due to her fault and that she has not blatantly disregarded the rules of this Court. 4. At the hearing of the application on 9th June, 2020, the respondent's Counsel informed the court that he was not ready to proceed as they were served with the appellant's application late. He however indicated that they would file the respondent's affidavit in opposition and arguments in opposition. It has been almost three months since but the respondent's counsel has not filed the affidavit in opposition. My view 5. I have considered the application before me, together with the supporting affidavit. Order 13 Rule 3 of the Court of Appeal Rules empowers this Court on sufficient reason to extend time for making an application, including an application for leave to appeal, or for bringing an appeal, or for taking any step in or in connection with any appeal, despite the time limited having expired. 6. In casu, it is not in dispute that the appellant filed a notice of appeal and memorandum of appeal and that she is out of time to file the record of appeal and heads of argument. The appellant has told the court that R4 she has been unable to file these documents due to the fact that the record of proceedings of the court below is not yet ready. 7. In the case of Simeza Sangwa and Associates and 4 others v O'dys Works Limited1 the Supreme Court held that; "the court shall have power on sufficient reason to extend time for making any application for leave to appeal or bring an appeal or taking any steps with any appeal notwithstanding that the time limited may have expired, and whether the time was so limited by the rules of a court or by any written law". 8. In the case of Stanley Mwambazi v Morester Farms Limited2 it was held that; (ii) It is the practice in dealing with bona fide inter-locutory applications for courts to allow triable issues to come to trial despite the default of the parties; where a party is in default, he may be ordered to pay costs, but it is not in the interests of justice to deny him the right to have his case heard. (iii) For this favourable treatment to be afforded there must be no unreasonable delay, no mala fides and no improper conduct on the action on the part of the applicant. RS It is indeed trite law that for the court's discretion to be exercised, there must be justifiable reasons and no unreasonable delay as well as absence of improper conduct on the part of the applicant. I note that the delay in the appellant's compliance with the rules of this Court is as a result of the delay by the court in preparing the record of proceedings whose contents are an integral part of the record of appeal. There being no objection by the respondent and the delay being no fault of the appellant, I will exercise my discretion and grant the appellant the application sought. The appellant is hereby granted 14 days within which to file the record of appeal and heads of arguments. Costs will be in the cause. Dated this the 10th day of September, 2020. Rl~O~o_ HONOURABLE MRS JUSTICE P. C. M NGULUBE COURT OF APPEAL JUDGE.