Dar Farms and Transport Limited v Bipin Vashi (NOM/40/2019) [2019] ZMCA 400 (16 August 2019)

IN THE COURT OF APPE HOLDEN AT LUSAKA (Civil Jurisdiction) BEWEEN: NOM/40/2019 DAR FARMS AND TRANSPORT LIMITED APPLICANT AND BIPIN VASHI RESPONDENT CORAM: CHISANGA J . P, MAJULA, NGULUBE, JJA On: 14th August and 16th August, 2019 For the Appellant: Ms. M. Siansumo, Messrs Malambo & Company For the Respondent: Mr. W, Chinua, Messrs Willa Muto/we and Associates RULING NGULUBE, JA delivered the Ruling of the Court. Legislation referred to: 1. The Court of Appeal Act, No 7 of 2016 2. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016. Introduction 1. This is a Notice of Motion to move this Court to determine whether the appellant's appeal is competent and whether this court has juris diction to entertain and hear the said appeal. The background to the dispute in t h is Appeal 2. The brief background of this appeal is that the respondent worked as an operations manager for the appellant in Livingstone until October, 2015, when his oral contract of employment was terminated. Following his termination of employment, he filed a complaint before the Industrial Division of the High Court. Along the way, the respondent applied for leave to amend the notice of complaint which the court duly granted. 3. On 7 th February, 2019, the respondent filed into court the amended notice of complaint. On the same day the appellant's advocates made an application before the Court for an order to set aside the order granting leave to amend the notice of complaint for irregularity. The said application was denied. 4. On 8th February, 2019 the appellant's advocate moved the court below on an application for leave to appeal to this Court against the Ruling of the lower Court and the said leave to appeal was granted on 12th February, 2019. Following this, the appellant filed a notice of appeal together with the memorandum of appeal before this Court on 7 th March, 201 9. 5. Before the appeal could be heard, the respondent moved this Court by way of notice of motion seeking this court's determination on whether the pending appeal was filed in accordance with the provisions of the law and whether this Court has jurisdiction to hear the said appeal. The arguments presented by the parties and decision ·by the court. 6. The parties filed affidavit evidence and skeleton argument which they relied upon at the hearing of the appeal. They also made verbal submissions to augment the skeleton arguments. We have considered the affidavit evidence, arguments along with the Ruling of the lower court. 7. The respondent contends that the appeal filed before this court does not comply with the provisions of the Court of Appeal Act and the Court of Appeal Rules. To support this argument, the respondent cited Order 10 rule 2 of the Court of Appeal rules 1 which is couched in the following terms- " An application to a single Judge shall be made by notice of motion or summons within fourtee.n days fro.m the date of the decision complain,ed of.''' 8. The gist of the respondent's argument is that the respondent filed the appeal after the 14-day time frame provided for in Orde.rl0 Rule 2 cited above. 9. In response to the respondent's claim, the appeHant contends that it had thirty days in which to lodge an appeal, having been granted leave to appeal on 12th February, 2019. That pursuant to this, the appellant lodged the notice and memorandum of appeal on 251th February, 2019. It 1s the appellant's contention that the respondent's argument that the notice of appeal and memorandum of appeal ought to have been filed within fourteen days of the decision as opposed to thirty days is misplaced. I 0. To support this argument, the appellant cited section 25 of the Court of Appeal Act 1 which provides that: Subject to section twenty-three, a person who intends to ap,peal to the Court from a judgment shall do so within thirty days of the jud.gm,ent 11. It was contended that according to section 2 of the Co'urt of Appeal Act 1, judgment is defined to include a decree ,1 ruling,1 order, conviction, sentence and decision. It was submitted that given this, it is clear that the appellant had thirty days from 12 th February, 2019 and that the appeal was filed within the required time frame. 12. ln further support of their argument, it was contended that Order 10 (2) of the Court of Appeal Rules2 being rehed on by the respondent is only applicable to applications to be made before a single judge of this court. In summation the appellant urged this Court to dismiss the notice of motion with costs to the appellant. 13. We have considered the record of appeal, affidavit evidence, skeleton arguments and oral submissions by counsel for both parties. The question before u s for determination is whether the pending appeal before this court was filed in accordance with the provisions of the law. Lodging of appeals before this Court is governed by part 5 of the Court of Appeal Act1. Section 25 of the said Act requires that civil appeals should be lodged within thirty days of the judgment. The Court of Appeal Act1 defines judgment as follows: "judgment includes decree, ruling, order, conviction, sentence and decision" 14. In addition, Order 10 Rule 3(5) of the Court of Appeal Rules2 provides that- "The notic.e of appeal 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. 15. In the matter before us, leave to appeal was granted on 12th February, 2019. What this entails is that the appellant had thirty days in which to file the notice of appeal and memora ndum of a ppeal. The appellant filed the notice of appeal and memorandum of appeal on 7 th March, 2019. 16. From the facts given, it is clear that the respondent wa.s granted leave to appeal on 12th February, 2019 and filed the notice of appeal and memorandum of appeal on 7 th March, 2019 v,rithin the 30-day time frame. 1 7. Order 10 Rule 2 relied on by the applicant is applicable to applications made before a single judge. Therefore, the pending appeal was filed in accordance with the provisions of the lav,1 and this court has jurisdiction to hear the said appea.l. Accordingly, the respondent's notice of motion is hereby dismissed with costs to the appellant, same to be taxed in default of agreement . ..................... ~~ -············ F. MCH~ A JUDGE PRESIDENT, COURT OF APPEAL ,. ...... --.-~ B : Ni (iJAJuiA ............... .. COURT OF APPEAL JUDGE P. C .. M NGULUBE COURT OF APPEAL JUDGE 6