Antelope Wholesale Merchants Limited v David Nchiteshani (NOM 59/2018) [2019] ZMCA 402 (25 April 2019)

• 1 IN THE COURT OF APPEAL OF ZAMBIA NOM 59/2018 HOLDEN AT LUSAKA i(Civil Jurisdiction) BETWEEN: ANTELOPE WHOLESALE MERCHANTS LIMITED APPELLANT AND DAVI. D NCHITESHANI RESPONDENT CORAM: CHASH:I, LENGALENGA AND SIAVWAPA, JJA On 15th March 2019 and 25th April 2019 FOR THE APPELLANT: M. C. KAOMA FROM KMG CHISANGA ADVOCATES FOR MR J. NYIRONGO OF NYIRONGO AND COMPANY FOR THE RESPONDENT: MR B . KATEBE OF KITWE CHAMBERS RULING SIAVWAPA, JA, deliv,er1ed the Rolin;g ,of the Court. L,egislatiion Cited: 1. Court of Appeal Rules of 2016 Thi.s ruling is on a Notice of Motion arising from the ruling of a single Judge of the Court delivered on 13th December, 2018. The Applicant, who is the Respondent in the intended appeal to this Court, filed a writ of summons and an affidavit in support before a single Judge of the Court seeking an order to dismiss the appeal for want of prosecution. The Respondent herein had also filed a summons for an extension of time within which to file record of appeal and heads of Argument pursuant to Order XIII rule 3 (2) of the Rules of the Court on 6 th November 2018. The single judge considered the two applications together. The learned single Judge considered the arguments in respect of both applications and by her ruling dated 13th December, 2018 dismissed both applications. The learned single Judge, in dismissing the application to dismiss the appeal for want of prosecution found that the Notice and Memorandum of appeal were filed on 17th and not 3 rd August 2018 as submitted by the Applicant. She based her finding on the definitions of Registrar and Court in the interpretation section of the Court of Appeal Act as referring to the Registrar of the Court and the Court of Appeal respectively. Having so found, the learned single Judge concluded that the effective date of the filing of the Notice and Memorandum of Appeal was the date on which the two documents were received in the Court of Appeal registry, in this case, the 17 th August 2018. In that case, the learned single Judge found that the sixty day period expired on 19th October 2018, while the summons to dismiss the R2 appeal for want of prosecution was filed on 10th October 2018, nine days before the sixty days expired. For the above stated reasons, the learned single Judge ruled the summons to dismiss the appeal for want of prosecution to have been filed prematurely and dismissed it accordingly. As regards the summons to file Record of appeal and Heads of argument out of time, the learned single Judge found that the same should have been made within 21 days of the judgment appealed against. With the judgment having been delivered on 6 th June 2018, the learned single Judge computed the 21 days to have expired on 28 th June 2018 by reason of which the Appellant needed to seek leave to file application for extension of time within which to file Record of Appeal and heads of Argument. The learned Judge accordingly found the application for extension of time to have been irregular for want of leave and set it aside but left it open to the Appellant to seek leave of the Court. The Respondent, dissatisfied with the ruling of the learned Judge has renewed his application for an order to dismiss the appeal for want of prosecution before this Court advancing the same arguments as those before the single Judge. The Appellant filed an affidavit in opposition to the Respondent's notice of motion wherein it rehashed the submissions before the learned single Judge and added that it had renewed an application R3 for leave to apply tor an extension of time within which to file the record of appeal on 131th February, 2019. The Appellant further submits that the ruhng of the learned single Judge was delivered on the 13it11 of December, 2018 and the instant application was filed on 27 th December,2018 as such it was after the 14 days within which to renew such an application had elapsed and is therefore improperly before us . In the alternative, the Appellant submits that this application ought to be dismissed and allow the application for an order for leave to make an application for extension of time in which to file the record of appeal to proceed accordingly before a single Judge. We shaH begin by addressing the issue raised by the Appellant as it argues that the instant appeal is improperly before us. Order X Rule 2 ,(9) of the Court o f Appeal Rules provides that an application involving the decision of an appeal to this Court shall be made in accordance with the provisions of sub-rule 1 We only need to state 1n this regard that there was a misapprehension of the c ited rule. We are clear in our minds that the rule relates to situations where the Court has determined an appeal from the Court below and an application arises out of that decision. In this case, the decision of the single Judge is not a decision of an appeal. Consequently., sub-rule 1 does not apply. The rules do not fix a time within which a renewed application from the decision of a single Judge to the Court should be filed pursuant to IR4 ... section 9 {b) of the Court of Appeal Act. The argument therefore lacks merit as the application is properly before us. The issue before us, as was before the single Judge is whether or not the Notice and Memorandum of Appeal were filed on 3 rd or 17th August 2018. The two dates appear on the documents with the former being when the same were lodged in the High Court and the latter being the date of lodging in the Court of Appeal. The question then, is does filing of the Notice and Memorandum of Appeal happen in the High Court Registry or in the Court of Appeal Registry? As stated earlier in this ruling, the learned Judge placed full reliance on the interpretation section of the Act to determine that the Registrar and the Court mean the registrar of the Court and Court m.eans the Court of Appeal. We however, note that section 2, the interpretation section of the Act starts with the following phrase; "In this Act, unless the context otherwise requires -:" That phrase makes two statements firstly, that the interpretations of words in that section relates to the Act only. Secondly, where the context of use within the Act requires a different interpretation, the one in the interpretation section will be discarded. The first distinction to be drawn therefore, is that the Rules are not part of the Act although made pursuant to the Act and secondly, even if the Rules were part of the Act, the words would have to be R5 . ' interpreted in the context they are used in the relevant orders and rules. Having said that, we n ow turn to the relevant rules that deal with the lodging of Appeals to extrapolate the meaning of the words 'Registrar' and 'Court' in context. Order X rule 3(5) of the Court of Appeal Rules states that: ''The notice of app,eal and mem o ra:ndum of appeal shall be ,e:ntitl,ed in the p.r,oceedings from which it is intended to appeal and shall be filed with the Registrar within thirty \days afler t he judg 1ement a ppealed against." Order X Rule 9 sub rules ( 12) and ( 15 ) ref er to the Registrar in the Court below. F,orm . XVII and Form XVIII for the Notice and Memorandum of Appeal respectively also state clearly that the Registrar referred to in relation to the Notice of Appeal and memorandum to appeal is the Registrar of the High Court. It is therefore, clear that in the context of filing of the Notice and Memorandum of Appeal pursuant to Order X, Registrar refers to the Registrar of the High Court. The Registrar of the Court of Appeal simply receives the documents filed in t he Court below. We accordingly find that the date of filing of the Notice and Memorandum of Appeal in this case was 3 rd August 2018 and as such the Respondent's filing of summons to dismiss the Appeal for want of prosecution was not premature as the sixty days within which the Appellant ought to have filed the Record of Appeal and Heads of Arguments expire d on 3 r d October 2018. H6 As regards the application by the Appellant to seek an order for extension of time within which to file the Record of Appeal and heads of Argument, we agree with the single Judge that the application lodged by the Appellant on 6 th November 2018 was irregular as it was made outside the 21 days and therefore, required leave of the Court. Following the ruling by the single Judge delivered on 13th December 2018, the Appellant filed an application seeking leave for an order to apply for extension of time within which to file Record of Appeal out of time. The said application has not been heard. We therefore, remit the record to the single Judge to hear and determine the said application. Costs will be in the cause. J. CHASHI COURT OF APPEAL JUDGE F. M. LENGALENGA COURT OF APPEAL JUDGE M. J. SIAVWAPA COURT OF APPEAL JUDGE R7