Armaguard Security Limited v Nonde Mpanza (CAZ/08/555/2022) [2022] ZMCA 163 (27 December 2022)

,. ' ' • J IN THE COURT OF APPEAL FOR ZAMBIA AT THE LUSAKA DISTRICT REGISTRY HOLDEN AT LUSAKA - -----~ CAZ/08/555/2022 ( Civil Jurisdiction) BETWEEN: ARMAGUARD SECURITY LIMITED AND NONDE MPANZA Respondent Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 27 December 2022 For the Applicant: Ms. P. Phiri, In-house Counsel For the Respondent: No appearance Extempore Ruling Legislation referred to: Court of Appeal Rules, Statutory Instrument No. 65 of 2016 This is a ruling on two applications brought by the applicant ex-parte on 21 December 2022; namely an order for leave to appeal against the judgment of 22 April 2022 out of time and secondly for an orde r for stay of execution of all proceedings. The applicant filed an affidavit in support of the application sworn by Pumulo Phiri, an associate legal officer in the employ of the applicant. Rl Counsel gave a history of the background of the action being that the respondent had instituted an action in the High Court Industrial Relations Division by way of a Notice of Complaint on 5 May 2021 seeking benefits for the years worked with the applicant plus costs and other benefits. Having heard the matter, the Court below rendered its judgment in favour of the respondent and denied the applicant leave to appeal. Being dissatisfied with the judgment of lower Court, the applicant intends to appeal against the entire judgment of the lower Court and that they believe the proposed appeal is meritorious. Counsel further contended that a party desiring to appeal is requested to file a notice to appeal and memorandum to appeal within 30 days after the judgment appealed against. However, the applicant had not filed the appeal within the time prescribed. She stated that the delay in filling the appeal was occasioned by the fact that the directors of the company were out of the country and their legal department were therefore unable to obtain instructions. She added that the directors had returned to their home Country and were restricted from travel due to the covid restrictions plus email communications were not reachable. Counsel stated that the grant of leave to appeal would not in any way cause irreparable loss or unfairly prejudice on the respondent. She added that since an appeal does not operate as a stay execution of a judgment or ruling and urged this Court to grant a stay of proceedings in the Court below as the applicant would be severely prejudiced, if a stay was not granted. R2 The matter was heard before me ex-parte. I have carefully considered the affidavit evidence, the skeleton argum ents, and the relevant rules in relation to the two applications before me. I will begin by addressing the application for leave to appeal out of time against the judgment of the lower Court of 22 April 2022 . The issue for consider ation is whether this court should grant an order in favou r of the applicant for leave to appeal out of time . In dealing with this issue, I have reviewed the provisions of Section 12(2) of the Court of Appeal Act which provides on appeals that: '(2) A single judge of the Court may grant leave to appeal where an appellant is denied leave to appeal by the High Court or quasi-judicial body.' Similarly, the provision of the Court of Appeal Rules which dea ls with civil appeals provides at Order X Rule 4 (5) also provides that: '(SJ Where leave to appeal is refused, an application for leave to appeal to t he Court shall be made to a single judge.' R3 The foregoing provisions set out the jurisdiction of a single judge of the Court of Appeal to entertain an application for leave to appeal. Therefore, for the single judge to consider an application for leave to appeal, the same ought to have been denied leave by the High Court or a quasi-judicial body. This is the position in the present case. The lower Court declined to grant the appellant leave to appeal hence this application is properly before me. The second aspect is the timeframe for filing the application. Counsel for the applicant contends that the application for leave ought to have been filed within 30 days, the provisions on appeals under Order X Rule 3(5) of the Court of Appeal Rules provides that: 'The notice and memorandum of appeal shall be entitled in the proceedings from which it is intended to appeal and shall be filed with the Registrar within thirty days after the judgment appealed against.' The import of the foregoing provisions is that a person aggrieved by a decision of the High Court, or a quasi-judicial body must bring an application for leave to appeal to a single judge of the Court of Appeal within thirty days from the date of the decision complained of. The evidence before me shows the judgment sought to be impugned was delivered on 22 April 2022. R4 .. . . The timeframe within which to lodge the appeal expired on 6 May 2022, a period of over 7 months before the application was brought. The question therefore is whether this Court should grant an order for leave to file an appeal after a period of over 7 months. In dealing with this issue of whether to exercise my discretion outside the time prescribed for doing an act, I have reviewed the provisions of Order XIII Rule 3 ( 1) of the Court of Appeal Rules which provides as follows: '3(1) The Court may, for sufficient reason extend the time for- (a) making an application, including an application for leave to appeal; (b) bringing an appeal; or (c) taking any step in or in connection with an appeal.' The significance of the above provision is that a Court is empowered to exercise wide discretion regarding granting of leave and time within which an appeal can be filed. The provision does not provide precise circumstances when such discretion maybe exercised outside the time for filing an appeal, save to state that such power may be exercised for sufficient reason. RS I • To consider an application for leave out of time, the applicant seeking leave ought to provide sufficient and satisfactory reasons as to why the application was not brought within the time prescribed for doing so. Counsel for the applicant company has indicated that they did not file an appeal within the stipulated time as its directors were out of the country and were restricted from traveling to Zambia. Although Counsel has stated this, it is trite that the directors of a company need not personally be present in Zambia to file an appeal. The reason advanced by the appellant for failing to file an appeal in over 7 months from 22 August 2022 to 21 December 2022 is not convincing. Now with the advent of technology, it is not plausible that in-house Counsel of the appellant could not have reached the directors of the company in well over 7 months to obtain instructions to proceed with an appeal. I find a period of approximately 200 days of having failed to file an appeal, instead of the prescribed 30 is inordinate. "' Further, although Counsel argued that the respondent would not be prejudiced with an appeal being brought at this stage, I am of the contrary view that in fact the respondent will be prejudiced by this application and the uncertainty of the finality of the matter. In view of the foregoing, the application for leave to appeal out of time fails and I dismiss it accordingly. R6 Given that the application for leave to appeal out of time is unsuccessful, it follows that the application for a stay of proceedings also fails and I dismiss it. Both applications for leave to appeal out of time and for an Order for stay of proceedings accordingly fail. I make no order as to costs given t hat this was an ex-parte application. Dated at Lusaka this 27 December 2022. -- i\ ~ harpe-Phiri r COURT OF APPEAL JUDGE ~ R7