Bridget Liwanga and Ors v Nemchem International Limited (COMP NO/IRCLS/10/2016) [2023] ZMHC 88 (13 June 2023)

I Rl COMP NO/IRCLS/10/2016 IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LIVINGSTONE (Civil Jurisdiction) BETWEEN: FLORENCE AND 1ST COMPLAINANT 2ND COMPLAINANT 3RD COMPLAINANT 4TH COMPLAINANT 5TH COMPLAINANT NEMCHEM INTERNATIONAL LIMITED RESPONDENT Before the Honorable Mrs. T. S Musonda For the Complainants Mr. M. Mutam:f'ya Aid Clinic £or Women from Messrs. Legal For the Respondent : Ms. Norah Chishimba 0£ Messrs. MAK Partners RULING Legislation referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia 2. The Court of Appeal Act No. 7 of 2016 3. The Rules of the Supreme Court of England (RSC) -1999 Edition (White Book) 4. The Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia Cases referred to: 1. RDS Investments Lirni ted V Moonjelly Ouseph Josep, SCZ Appeal No.52 of 1998 2. Sayers V Clarke Walker, (2002) 3 ALL ER 490 3. Legal Resources . Foundation Limited V Norwegian Ministry of Foreign Affairs, (2018) ZMCA 381 4. D. E Nkhuwa V Lusaka Tyre Services Limited, (1977) Z. R 43 CamScanner 5. Na ar nves h I tments Limited V Grindlays Bank International (Zambia) Limited, (1984) ZMSC 1 6. Tembo V Sichembe & Others, SCZ/8/141/2014 7 . Chainama Hills Golf Club Limited v. Golf Consultancy and Tourism Limited{S) CAZ/08/19/2022 8. Mirriam Ban a d Z.mb a v. CFB Medical Centre Limited, CAZ/08/344/2022 9. Twampane Mining Co-operative Society Limited V Storti Mining Limited, S. C. Z Judgment No.20 of 2011 10. Wilson V Church (No.2), (1879) Ch D 454 INTRODUCTION 1. This is a combined Ruling on an Application for Leave to file an application for Leave to A:t:Jpeal and an appeal out of time and also an Order for stay of execution and stay sale of seized goods pending appeal. THE APPLICATION FOR LEAVE TO APPEAL AND LEAVE TO APPEAL OUT OF TIME 2. The Court was moved by way of Summons filed by the Respondent herein on 19 th December, 2017. The application was supported by affidavit of even date and skeleton arguments dated 13 th December 2022. 3. The application was opposed by way of an affidavit in opposition dated 21 st December 2022. THE RESPONDENT'S CASE IN SUPPORT OF THE APPLICATIONS 4. Counsel on behalf of the Respondent submitted that the Respondent would totally rely on the supporting affidavit and skeleton arguments filed before Court. 5. It was the Respondent's case that a Judgment was passed on 6th November in favour of the R2 CamScanner complainants. The said Judgment did not grant leave to appeal, hence the subject application for leave to appeal. 6. It was argued in the skeleton arguments that trial in this matter proceeded without affording the Respondent an opportunity to be heard and cross-examine the Complainants. 7. That the Court proceeded with trial despite Counsel for the Respondent having notified the Court about the reasons for his absence through a Notice to Adjourn. 8. Further that the Court ought to have considered the Notice to Adjourn al though filed at the 11 th hour pursuant to Order 3 Rule 2 of the High Court Rules, Chapter 27 of the Laws of Zambia which empowers this Court to make any interlocutory order which it considers necessary for doing justice. 9. It was argued that there was a possibility that the Court would have judged different if it had adjourned the case to a date when Counsel would be present. 10. It was argued relying on the case of RD~ Investments Limited V Moonjelly Ouseph Joseph (1) that the judgement rendered in this case was not on merit as only one party was heard, hence the application for leave to the Court of Appeal. 11. It was also argued in relatibn to the application for leave to appeal out of time that where it was impossible or even extremely difficult for parties to take procedural steps within the prescribed times, relief would be given where the Court was satisfied that the circumstances demanded so. 12. Reliance was made on the case of Sayers V ~larke Walker to consider fil where factors that a Court ought before granting the application sought were outlined. Among such factors are the interest of the R3 CamScanner administration of justice; whether the application for relief was made promptly; whether the failure to comply was intentional; whether there was good explanation for failure; and the extent to which the party in default had complied with the other rules, practice, court orders and any relevant pre-action protocols. 13. It was conceded that whilst there was inordinate delay in the application for leave to appeal out of time, it was in the interest of justice that the Respondent be granted leave to file the Appeal out of time, on the basis that the failure to appeal in time was not intentional as the application for leave to Appeal to the Court of Appeal to was never heard in the first place. Reliance was again placed on Order 3 Rule 2 of the High Court Rules in support of the argument that this Court had power to grant the Respondent leave to appeal out of time. Further, that the reason advanced for the failure to apply for leave to appeal out of time was a sufficient ground for the grant of the leave sought. 14. Support on the aforementioned argument was to be found in the case of Legal Resources Foundation Limited V Norwegian Ministry of Foreign Affairs (3) where it was held that there was no clear cut definition of what sufficient reason is. Therefore, every matter was to be considered on its merits having regard to circumstances surrounding it. 15. It was acknowledged in reference to the holding of the Supreme Court in D. E. Nkhuwa V Lusaka Tyre Services Limited(4) that the granting of an extension of time within which to appeal was entirely in the discretion of the Court and that such discretion was however not to be exercised without good cause. R4 CamScanner 16 . In c onclusion, this Court was called upon to grant the Respondent leave to appeal as well as leave to appeal out of time for the purposes of justice. THE COMPLAINANT'S CASE IN OPPOSITION TO THE APPLICATIONS 17. It was the Complainant's case that Counsel for the Respondent was given dates for hearing on almost four occasions. The matters were adjourned at the instance of Counsel on the said occasions. 18. On the material date, the Court proceeded with the matter and rendered Judgment on account of the numerous adjournments which were not unsubstantiated with any evidence. Hence the Court used its discretion and proceeded with the matter on 7 th November 2017. 19. Counsel for the Complainants in the oral submissions, argued that the Respondent had exhibited inertia regarding progress in their application. 20. Further no grounds of appeal had been exhibited or framed. The Respondent had accordingly not demonstrated any likelihood of succeeding on appeal. 21. There had thus been inordinate delay on the Respondent's part in presenting the application. Reliance on this argument was placed on the case of Nahar Investments Limited V Grindlays Bank International (Zambia) Lirni ted (5) where the Court stated that where unfair prejudice was caused to a Respondent because of inordinate delay, an Appellant could expect the appeal to be dismissed for want of Prosecution notwithstanding that he had a valid and otherwise perfectly acceptable explanation. 22. The Court was therefore called upon not to grant the leave sought by the Respondent. R5 CamScanner THE RESPONDENT'S CASE IN REPLY 23. Counsel for the Respondent in reply argued that the Respondent had been desirous to seek leave to appeal and filed the application within time soon after the delivery of the subject Judgment. 24. Counsel reiterated that the application was not heard and this could not be completely attributed to the Respondent. The record would show that the Court was sitting in sessions and had been aware of the existence of the Respondent's application. 25. Regarding the argument that there had been failure to exhibit grounds of appeal, it was argued in response that the affidavit in support demonstrated that the Respondent was not heard on the date when the Court proceeded with trial on 7 th November 2017. Counsel cited the case of Tembo V Sichembe & Others (6) in support of the argument that a decision made in the absence of a party was not a decision on merit and was likely to be set aside. 2 6. In this case the rendering of the subject Judgment where the Respondent was not heard rendered the appeal with a possibility of success. DETERMINATION OF THE APPLICATION FOR LEAVE TO APPEAL AND LEAVE TO APPEAL OUT TIME 27. I have considered the rival positions of the parties as set out in the affidavits, skeleton arguments and oral submissions. The application for leave to appeal 28. The Law regarding Civil Appeals is laid down in the Court of Appeal Act No.7 of 2016, in particular from Section 22 to Section 25. 29. Section 22 provides that: R6 CamScanner Subject to Section twenty-three, an appeal in a civil matter shall lie to the Court from a judgment of the High Court or a quasi judicial body. 30. Further, Section 23 sets out exceptions to the general rule under Section 22 cited above. It provides that: (1) An appeal shall not lie- (a) from an order allowing an extension of time for appealing from a judgment; (b) from an order of a judge of the Court giving unconditional leave to defend an action; (c) from a judgment given by the High Court in the exercise of it's appellate or review jurisdiction, without the leave of the High Court or, if that has been refused, without the leave of a judge of the Court; (d) from an order made with the consent of the parties or from an order as to costs only, which by law is left to ' the discretion of the court or quasi-judicial body, without the leave of the court or of the judge who, or quasi-judicial body which, made the order or, if that has been refused, without the leave of a judge of the Court; (e) from an order made in chambers by a judge of the High Court or by a quasi judicial body or from an interlocutory order or interlocutory judgment made or given by a judge of the High Court or by a quasi- R7 CamScanner judicial body, without the leave of that judge or quasi-judicial body or, if that has been refused, without the leave of a · judge of the Court, except in the following cases: (i) where the liberty of the subject or the custody of infants is concerned; (ii) where an injunction or the appointment of a receiver is granted or refused; (iii) in the case of a decision determining the claim of a creditor or the liability of any contributory, director or other officer under the Companies Act; (iv) in the case of a decree nisi in a matrimonial cause, judgment or order in an Admiralty action determining liability; or (v) in the case of an order on a special case stated under any law relating to arbitration; and (f) from an order absolu·i:e for the dissolution or nullity of marriage made by a judge of the High Court in favour of a party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree. 31. The Court of Appeal has interpreted the above sections in two decided cases with regard to appeals from the Industrial Relations Division of the High Court. 32. The first is the case of Chainama Hills Golf Club Limited v. Golf Consultancy and Tourism Limited(?) in which Judge Siavwapa e x plained that: RB CamScanner 4.1 The starting point io th t Soction 22 of the Court of Appoal Act providoo for an automatic right of appoal in civil matters. 4.2 The exceptions to the automatic right of appeal are set out in Section 23 of the Act. 4. 3 The Judgment intended to be appealed against does not fall in any of the categories set out in Section 23 of the Act. 4.4 It was therefore erroneous for the learned Judge to have purported to deny leave to appeal when such leave is not required by the party who is aggrieved by the Judgment ....... . 4 . 1 In view of what I have said all the Appellant needed to do was to file Notice and Memorandum of Appeal in the High Court within 30 days of the Judgment as prescribed by Section 25 of the Act. I 4.2 I note that the Judgment intended to be appealed against was delivered on 31 st December 2021 leaving the App~llant 5 days to the closure of the 30 day within which to file the Notice and Memorandum of Appeal. 4. 3 If this time will not be enough, the Appellant can make the appropriate application. 4.5 The application is therefore misconceived and dismissed accordingly. R9 CamScanner 33 . Th e se cond is the case of Mirriarn Banda Zimba v. CFB Modical Centre Lirni ted (8) in which Judge Siavwapa similarly explained that: Section 23 of the Court of Appeal Act stipulates the instances when an appeal to the Court will require leave of the Court below even though the intended Appellant is within the thirty days provided above...... ... A perusal of the above provision reveals that there is no requirement for leave to be obtained before a party can appeal from a judgment of the Industrial Relations division of the . High Court .... 34 . It is clear from the above authorities that a party that is aggrieved by a Judgment. in the Industrial Relations Division has an automatic right of appeal. Therefore , the applica tion for leave to appeal was not necessary as the law and authorities cited above demonstrate that there is no requirement for leave to appeal against decision emanating from the ·Industrial Relations Division of the High Court. 35. A party that fails to appeal within the prescribed time is merely required to seek leave to appeal of out of time. The application for leave to appeal out of time 36 . The principles governing leave to appeal out of time are settled . The successful party must demonstrate " sufficie nt cause" for not fili ng the appeal in time. Th e Supr e me Court in D. E. Nkhuwa V Lusaka Tyre Services Limited h e ld as fo llow s : CamScanner (i) The granting of an extension of the time within which to appeal is entirely in the discretion of the Court, but such discretion will not be exercised without good cause; and (ii) In addition to the circumstances of the delay and the reasons therefore which provide the material on which the Court may, exercise its discretion another most important factor is the length of the delay itself. 37 . The Supreme Court further stated at page 4 7 that: ...... The provisions in the Rules allowing for extensions of time are there to ensure that if circumstances prevail which make it impossible or even extremely difficult for parties to take procedural steps within prescribed times relief will be given where the Court is satisfied that circumstances demand it. It must be emphasized that before this Court is able to exercise its discretion to grant such relief there must be material before it on which it can act. 38. It is clear from the above authority that, while the discretion of this Court is unfettered, an Applicant is required to adduce material upon which the Court should e xercise its discretion. The Court's discretion must be exercised judiciously on proper analysis of facts and proper application of the law to the facts. 39. The Supreme Court in the case of Twampane Co-operative Society Limited V Storti Mining Limited (9) further guided as follows: 1. . ... Rll CamScanner 2 . . ... 3. Applications for extension of time should be , made promptly. 4. . ..... 5. It is important to adhere to Rules of Court in order to ensure that matters are heard in an orderly and expeditious manner. 6. Those who choose to ignore Rules of Court do so at their own peril. 40. The issue for determination is whether the Respondent has made out a case for the exercise of this Court's discretion to grant its application for leave to file an application for leave to appeal out of time. 41. The Complainants ground in opposition was solely grounded on the application regarding leave to appeal. No comment was made on the Respondent's skeleton arguments regarding leave to appeal out of time. 42. I do sympathise with the Complainants predicament as a successful party must enjoy the fruits of their judgment. They correctly argued so. 43. Judgment in this matter was delivered on 29 th November 2017. It is not disputed that the summons for leave to appeal were filed on 19 th December 2017. Indeed, as determined by this Court, leave to appeal was not necessary. The Respondent ought to have filed a Notice and Memorandum of Appeal within 30 days of the Court's Judgment as provided for in Section 25 of the Court of Appeal Act. 44. The reason given for failure to appeal within time is that the application for leave was never heard. It appears to me that the Respondent was under the erroneous impression that leave was required for leave Rl2 CamScanner to a p peal to t h e Court of App ea l . Th e sa id a pp lication wa s f il e d b e for e t h e l apse of 30 days wi t h i n which t h e au t oma tic appeal t o th e Cou rt of Ap peal must h a v e b ee n lodge d. 45 . Hav i ng r e vi e we d the re co r d, it i s my v ie w t h at the Respondent cannot be said to be respo nsi bl e f or th e i nordina te delay in the prosecution o f i t s appl i cation. 46. In all matters pending before a Court, it is e n t irely and absolutely the duty of the Court to fi x or gi v e date(s) for hearing the matter. 47. Therefore, whilst the Respondent in this matter could have followed up on dates if such an argument was to be taken, it was still wholly the responsibility of the Court to issue the date for the hearing of the application. 48. The peculia r circumstances of this case lead me to the conclusion that although the delay to apply for leave to appeal out of time is inordinate, the interest of justice will best be served by allowing the Respondent to appeal out of time. 49. I thus find the reasons given by the Respondent to explain its delay to file its appeal out of time within the time prescribed by this Court, reasonable under the circumstances. 50. Therefore, pursuant to Rule 55 of the Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia, which empowers this Court to make any such Order for the ends of justice, the Respondent is by this Ruling, granted leave to file its appeal out of time. CamScanner HE _ APPLICATI ON FOR STAY OF EXECUTION ANO TO STOP SALE OF SEIZED GOODS PENDING APPEAL 5 ... . T' e s ~ ons or s t ay of executio n of judgment pend in a eal da ed 19 th December 2017 was filed pursuan to Order 47(1) of the Rules of the Supreme Court , Whi te Book 1999 Edition. Th e summon s was suppor ed by an affi d a i t of e ve n date . 52 . =he app l icat i on was opposed by wa y of an aff i davi t in oppo sition dated 13 t h J uly 2022. THE RESPONDENT'S CASE IN SUPPORT OF THE APPLICATION 53 . I t wa s t h e Respondent's case tha t it was d iss a tis fied with t h e Judgment of the Cour t d e l.:.. v ered o n 29 th o v ember 2017. The Responde nt had s ince made an a p plication for leave to appea l to t e Cou r t o f Appeal. 54 . The Respondent argued tha t since the a ward ade by this Court was liquidated, ther e was a da ng er that t h e Complainant's would issue a Wr i t o f F.:..eri Fa cias before the appeal was heard. 55. In the event that th e Re sponde n t su cceeded o n a ppe a l and e x ecution wa s don e , th e r e was a l i keli hoo d th at the Complainants would not b e in a position to d eal with the refund since they we r e all not i n emp l oyme nt. The appeal would thus be rendered an acad e mi c exercise. 56. It was also the Respondent's pos i tion that the grant of the order sought would not prejudice the Complainants as the same was in the interest of justice as the Respondent had a right to appeal. THE COMPLAINANTS CASE IN OPPOSITION TO THE APPLICATION 57. It was t he Complainant's case that the order sought for stay of execution pending appeal was opposed on Rl4 CamScanner the basis that the Respondent and its Advocates had failed to appear before Court on several occasions. 58. Further, there was no appeal against the subject Judgment of this Court. 59. It was also the Complainant's case that the Respondent had never been heard on any application for leave to appeal and four years had passed since the delivery of the subject judgment. 60. In the absence of any appeal and leave to appeal, the Complainants were accordingly entitled to enjoy the fruits of the Judgment that was delivered in their favour. 61. Further, the Respondent's appeal was not likely to succeed and it sat on its rights to enable the Court of Appeal determine the matter. 62. The Complainants position was that they would . be prejudiced by the grant of the Order sought as they had suffered greatly from 2017 when the subject Judgment was delivered, and had not benefited from ~the fruits of the Judgment. 63. Counsel for the Complainants reiterated arguments set out in the affidavit in opposition and prayed that the stay of execution granted on 27 th February 2018 be discharged in the interest of justice. THE RESPONDENT'S CASE IN REPLY 64. Counsel for the Respondent in response argued that the grant of the stay of execution sought was dependent on this Court's decision on the application for leave to appeal to the Court of Appeal. 65. Counsel reiterated the Respondent's argument that the Court in the interest of justice allows the Respondent to be given an opportunity to be heard. Rl5 CamScanner DETERMINATION OF THE APPLICATION FOR STAY OF EXCEUTION AND TO STOP SALE OF SEIZED GOODS 66 . I ha v e considered the respective parties' cases 1.n support and in opposition to the application under consideration. 67. The only issue for determination is whether this Court should grant the Respondent's application for stay of execution and stop sale of seized good pending appeal. 68. Order 47 Rule 1(1) of the Rules of the Supreme Court, White Book pursuant to which the application under this head is anchored provides: (1) 'Where a judgment is given or an order made for the payment by any person of money, and the Court is satisfied, on an application made at the time of the judgment or order, or at any time thereafter, by the judgment debtor or other party liable to execution- (a) That there are special circumstances which render it inexpedient to enforce the judgment or order, or (b) That the application is unable from any cause to pay the money, then, notwithstanding anything in rule 2 or 3 , the Court may by order stay the execution of the judgment or order by writ of fieri facias either absolutely or for such period and subject to such conditions as the Court thinks fit. 69. The provisions of Order 47 Rule 1 (1) are self explanatory. 7 0 • The issue of stay of execution is solely under the discretion of the Court. Rl6 CamScanner 71. The rationale for a stay of execut1.'on pending appeal lies in what was stated in the case of Wilson v Church (10) : Where an unsuccessful party is exercising an unrestricted right of appeal, it is the duty of the Court in cases to make such orders for staying proceedings under a judgment appealed from as will prevent the appeal, if successful from being nugatory. 72. I have considered the circumstances of case in which the Respondent's application for leave to appeal al though erroneous, was never attended to from the time it was filed on 19 th December 2017. I have also exercised my discretion to grant the Respondent leave to appeal out of time for reasons already given above. 73. Pursuant to Rule 55 of the Industrial Relations Court Rules, I find that this is a case in which I can exercise my discretion to grant the Order sought. Having granted the Respondent leave to appeal out of time, it is my view that refusing to confirm the order sought for stay of execution and to stop sale of seized goods would defy all logic and render the Respondent's appeal before the Court of Appeal nugatory. 74 . In the result, the Respondent's application dated 19th Decemb er 2017 is successful. CONCLUSION 75. In conclu s ion I mak e the f ollowing Orders: ( i) h Te application for leave to appeal by way of Summons dated 17 th November 2017 was erroneous as there is no requirement for leave R17 CamScanner to be obtained before a party can appeal from a Judgment of the Industrial Relations division of the High Court. The application for leave to appeal is therefore dismissed. (ii) The Respondent is pursuant to Rule 55 of the Industrial Relations Court Rules granted leave to appeal out of time and shall file and serve the Notice and Memorandum of appeal within 21 days from the date herein. (iii) This Court Orders that execution of the Judgment of 29~ November 2017 and the sale of seized goods is hereby stayed pending the Respondent's appeal to the Court of Appeal. (iv) Costs shall be in the cause. DATED THIS 13TH DAY OF~ , 2023 ~ . --------------------- T. S. MUSONDA JUDGE l RlA CamScanner