Florite Limited v Robert Kunda Chimambo (SCZ/8/144/2002) [2003] ZMSC 184 (10 January 2003)

SCZ/8/144/2002 2001/HP/0438 Appellant \ AND ROBERT KUNDA CHIMAMBO Respondent BEFORE THE HONOURABLE MR JUSTICE PETER CHITENGI IN CHAMBERS AT LUSAKA THIS 10TH DAY OF JANUARY, 2003. For the Appellant Mr. M. M. Mundashi of Messrs Mulenga Mundashi & Company For the Respondents Mr. D. 0. Sakala of Messrs Mabutwe & Associates RULING This is an application to dismiss appeal for want of prosecution pursuant to Rule 55 Rules of the Supreme Court Cap 25 of the Laws of Zambia. The Affidavit in Support of this application reveals that the Judgment in this case was delivered on 21st June 2002. Thereafter the Appellant engaged into some alleged frivolous applications to stay execution of the Judgment. According to the Respondent by 3rd September, 2002 the Appellant should have filed the record of appeal. The Respondent then complained of the effects on his health and property of the Applicant's production activities. Mr. Mundashi, learned counsel for the Appellant, swore an Affidavit in Opposition. He explained that he had difficulties to have his R2 applications to review and stay execution of Judgment heard by the learned trial Judge. Later the Judge through his marshal told Mr. Mundashi's firm that he would not entertain the application to review. Later still, the learned trial Judge's marshal told Mr. Mundashi on 8 th July, 2002 that the learned trial Judge had signed the Order for Stay of Execution in his absence. As regards the filing of the record of Appeal, Mr. Mundashi explained the delay on none availability of the Judges notes in time. He had to make arrangements with the Judges marshal and secretary working with his (Mr. Mundashi's) staff to prepare the notes. By November 2002 the record was ready' and on 22nd November, 2002 he filed an application for leave to file record of appeal out of time. The Summons is pending return date. There was no willful failure to file the record of appeal within the time stipulated by the Rules of Court. Counsel relied on the Affidavits which I have carefully considered. On the Affidavit evidence before me I cannot say the Appellant has willfully failed to file record of appeal within the time stipulated by the Rules of Court or that he has been guilty of unforgivable delay. The delay in filing the record of appeal has been satisfactorily explained. I appreciate the Respondent's concerns but in the circumstances of this case those concerns cannot militate against this appeal being heard on its merit. In the event, I refuse the application to dismiss this appeal for want of prosecution. Costs in cause. DONE IN CHAMBERS ON THIS 10TH DAY OF JANUARY, 2003. SUPREME COURT JUDGE