Charles Laima v Pulse Financial Services Limited (T / A Entreprenuership Financial Centre) (APPLICATION NO.88/2024) [2025] ZMCA 41 (26 February 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPLICATION NO.88/2024 HOLDEN AT NDOLA ( Civil J urisdiction) CHARLES LAIMA AND CuuRf JJµ,,.-, / 1 2 6 F EB 2025 , ~~ PLICANT PULSE FINANCIAL SERVICES LIMITED (T / A Entrepreneurs Financial Centre) RESPONDENT Coram: Chashi, Makungu and Banda-Bobo, JJA On 19th and 26th February, 2025 For the appellant: In Person For the respondent: Mr. J. Shawa In-house Counsel RULING MAKUNGU JA, delivered the ruling of the Court. Cases referred to: 1. Stanbic Bank Zambia Limited v. Savenda Management Services Limited CAZ/ 08/ 040 of 2017. 2 . Patson Sakala v. Heinrich's Syndicate Limited & Heinrich's Beverages, SCZ Appeal No. 08/2026 3 . D. E Nkhuwa v. Lusaka Tyre Services Limited (1997) ZR 43 4 . Polythene Products (Z) Limited v. Zimba & Another (appeal 177 of (2015) 2018 ZMSC48 5. Twampane Mining Co-operative Society Limited v. E & M Storti Limited (2011) ZR 18 - 1 - Legislation referred t o: 1. The Court of Appeal Rules, S. I No. 165 of 2016 1.0 INTRODUCTION 1.1 This is an application for an extension of time within which to apply for leave to appeal to the Supreme Court. The applicant wishes to appeal against this Court's judgment delivered on 22 nd August 2024 in appeal number 192 of 2023 . 1.2 The grounds upon which the application is made, as stated in the Notice of Application are as follows: 1. That the applicant received a copy of the judgment several days after delivery and had little time to research and prepare the notice of motion for leave to appeal. That the applicant was under the impression that the period within which to launch an appeal was 30 days as opposed to 14 days. 2.0 AFFIDAVIT IN SUPPORT OF THE APPLICATION 2.1 In summary, the affidavit in support sworn by the applicant shows as follows : 2.2 In the judgment dated 22n d August 2024, leave to appeal was not granted. On 17th September 2 024, th e applicant attempted to file a notice for leave to appeal but h e was advised that he was out of - 2. time, in that the application ought to have been made within 14 days of the judgment. 2.3 That the delay is regrettable , but the applicant was of the mistaken view that he had 30 days from the date of judgment to appeal as the judgment was delivered in open court. That the motion is ready for filing as shown in exhibit 'CLl' attached to the affidavit. Further, that the appeal has a high prospect of success as shown in the draft notice of motion and memorandum of appeal. 3.0 AFFIDAVIT IN OPPOSITION 3.1 The affidavit in opposition filed on 15th October 2024, was sworn by Martha Msoni the Head of Legal/ Company Secretary of the respondent. 3.2 The gist of it is that, there has been an inordinate delay on the part of the applicant in filing this application. The judgment sought to be appealed against was delivered on 22nd August 2024, whilst the current application was filed on 26 th September 2024, 35 days after the judgment was delivered. -3- 3.3 Further the intended appeal has no prospects of success. The respondent would greatly be prejudiced if this application is granted as its right to enjoy the fruits of the judgment of the lower court and this court will be delayed. 4.0 APPLICANT'S HEADS OF ARGUMENT IN SUPPORT OF THE APPLICATION FOR EXTENSION OF TIME 4.1 In the applicant's heads of argument appearing on pages 40 to 41 of the record of motion, it is indicated that the basis of the application is Order XIII (3) (1) (a) (3) (4) (b) and 5 of the Court of Appeal Rules, 2016. 4.2 It is submitted that the prescribed procedure for bringing this application has been complied with. Further, the delay in bringing the application has been ably explained in the affidavit in support. 5.0 RESPONDENT'S ARGUMENTS IN OPPOSITION TO THE APPLICATION FOR EXTENSION OF TIME 5 . 1 The respondent filed a composite list of authorities and skeleton arguments in opposition to the motion for leave to appeal to the Supreme Court and to st ay execution of judgment on 15th October 2024 . - 4 . 5.2 We shall only pick out th e arguments relating to the application before us for extension of time within which to apply for leave to a ppeal to the Supreme Court, as it is the view that the outcome will determin e the fate of the application for a stay. 5.3 Counsel referred to Order 13 Rule 3(2) and (3) of the Court of Appeal Rules, 2016 which provide inter alia for applications for extension of time concerning a judgment or the time fo r bringing an appeal. 5.4 He further referred u s to the case of Stanbic Bank Zambia Limited v. Savenda Management Services Limited, 1 where it was stated that in determining an application for an extension of time within which to appeal, the court will have regard to the circumstances, reasons , and length of the delay. 5.5 He also referred to the case of Patson Sakala v. Heinrich's Syndicate Limited & Heinrich's Beverages,2 wherein it was held that: "The threshold for granting an extension of time under Order 13(3) of the Court of Appeal Rules is that the delay - 5 . should not be inordinate, and the reason being advanced for the de lay must be sufficient." 5.6 He went on to refer to the case of D. E Nkhuwa v. Lusaka Tyre Services Limited, 3 where it was held that: " ... The provisions in the rules allowing for extensions of time are there to ensure that if circumstances prevail that 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 can exercise this discretion to grant this relief there must be material before it on which it can act." 5. 7 On the reason for the delay advanced by the applicant, that h e was ignorant of the time prescribed by the Court of Appeal Rules as to when to file notice of motion for leave to appeal to the Supreme Court, counsel cited the case of Polythene Products (z) Limited v. Zimba & Another,4 where at page 9 of th e judgment the Supreme Court h eld that: - 6 . "Counsel and all litigants should be conversant with the provisions of the law, ignorance of the law is not a defence." 5.8 In light of the above-mentioned authorities, counsel submitted that the applicant has not complied with order 13 Rule 3(2) of the Court of Appeal Rules, 2016 which provide that where there is a long delay the applicant ought to apply to the court within 2 1 days from the date of judgment to file an application for extension of the time within which to file the required application. 5 . 9 Based on Order 13 Rule 3 (3) of the Court of Appeal Rules and the authorities cited, there has been an inordinate delay in filing the present application before court as it s hould have been filed within 14 days from the date of judgment but it was filed after 35 days . 5.1 0 Counsel submitted further that the reason advanced for the delay is insufficient. Ignorance of the law irrespective of whether one is a lay person or counsel is not a d efence as established in the Polythene Products case. 4 He concluded that as espoused in the case of Twampane Mining Co-operative Society Limited v. E & M Storti Mining Limited, 5 those who choose to ignore rules of - 7. cou rt do so at their peril. He th erefore prayed that the application for an extension of time be dismissed for lack of m erit with costs. 6.0 ANALYSIS AND DETERMINATION 6. 1 We h ave carefully con sidered the notice of application for an exten sion of time within which to apply for leave to appeal against this Court's judgment dated 22 nd August 2024. The application was made under Order XIII (3) (1) (a) (3) (4) (b) and 5 of the Court of Appeal Rules. 6.2 We have also looked at the affidavits in su pport and opposition to the application together with the heads of argument. 6 . 3 We sh all start by examin ing and determinin g wheth er th e application for an extension of time is properly before the Court. 6.4 Order XIII Rule 3(1) (a) provides as follows: "The Court may for sufficient reason extend the time for:- (a) making an application, including an application for leave to appeal." - 8 . 6 .5 Subrule (2) provides: "An application for extension of time in relation to a judgment or the date of expiration of the time with in which the application ought to have been made, shall be filed in the Registry within twenty one days of the judgment or such time within which the application ought to have been made unless leave of the Court is obtained to file the application out of time." 6.6 Sub rule (3) states: "The Court may for sufficient reason 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 an appeal, despite the time limited having expired, and whether the time limited for that purpose was so limited by the order of the Court, by these Rules or by any written law." 6. 7 Order 13 Rule 3 (b) provides that: - 9 . "An application to the Court for an extension of t i me under this rule shall (b) in civil cases, be substantially in form XIII set out in the First Schedule." 6.8 The a pplicant argued that the court Rules on applications for extension of time have been complied with. On the other hand the respondent's counsel conten ded that Order XIII Rule 3 (2) was not complied with as the applicant did not seek leave of court with in 21 days from the date of the judgment to file the current application. 6 .9 The record of motion does not contain any order to apply out of time. We therefore take it that no such leave was obtained. Order 13 Rules 3 (2) and (3) must be read together. This entails that without leave of court to apply for an extension of time out of time, sub-rule (3) will not take effect. As stated in the Twampane,5 case those who choose to ignore the Rules of Court do so at their own risk. 6.1 0 Furth er ignorance of the law is not a defence (see the case of Polythene Products (Z) Limited. 4 ) - 10 7.0 CONCLUSION 7 .1 All in all, the application is dismissed for incompetence with costs to the respondent to be taxed in default greement. Costs to be limited to out of pocket expenses. COURT OF APPEAL JUDGE ···············~ ············· C. K. MAKUNGU COURT OF APPEAL JUDGE ···········~ ·················· A. M. BANDA-BOBO COURT OF APPEAL JUDGE - 11