kavartzis and Anor v Stanbic Bank (Zambia) Ltd (SCZ 8 231 of 2012) [2017] ZMSC 246 (9 January 2017)

IN THE SUPREME COURT FOR ZAMBIA SCZ/8/231/2012 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: DIMITRIOS KAVARTZIS ELAINE KAVARTZIS 1st APPLICANT 2nd APPLICANT AND STANBIC BANK (ZAMBIA) LIMITED RESPONDENT Coram: Phiri, Muyovwe and Malila, JJS On 15th October, 2014 and 9th January, 2017 For the Applicants: Major Hara of Messrs Mambwe, Siwila and Lisimba Advocates For the Respondent: Mr. B. Luo, Palan and George Advocates (standing in for Mr. Linyama of Messrs Eric Silwamba, Jalasi and Linyama Legal Practitioners RULING MUYOVWE, JS, delivered the Judgment of the Court Cases referred to: 1. Chansa Chipili, Powerflex (Z) Limited vs. Wellington Kanshimike, Wilson Kalamba (2012) Vol. 3 Z. R. 483 2. Stanley Mwambazi vs. Morester Farms Limited (1977) Z. R. 108 3. Zambia Revenue Authority V. Jayesh Shah (2001) Z. R. 60 4. Ruth Kumbi vs. Robinson Kaleb Zulu S. C. Z. Judgment No. 19 of 5. Nahar Investments Limited vs. Grindlays International Limited (1984) Z. R. 81 6. Clayton vs. Hybrid Poultry Farm Limited (2006) Z. R. 70 RI 7. Lusaka West Development Company Limited and B. S. K. Chiti (Receiver) and Zambia State Insurance Corporation vs. Turnkey Properties Limited (1989-1990) Z. R. 1 This is a Ruling on a Notice of Motion filed by the applicants following the dismissal of their appeal for want of prosecution by a single judge of this court. The application was filed pursuant to Section 4(b) of the Supreme Court Act of Zambia and Rule 48 (4) of the Supreme Court Rules Cap 25 of the Laws of Zambia. The background to this application is that the applicants filed a notice of appeal against the judgment of the lower court on 18th July, 2012. On the 18th October, 2012 the respondent filed an application to dismiss the appeal for want of prosecution. On the 13th November, 2012 a Consent Order was filed granting the applicants seven (7) days within which to file the record of appeal. On the 23rd September, 2013 the respondent's advocates made a search in the Registry only to discover that the applicants had not filed the record of appeal as ordered. On the 11th November, 2013 the respondent's advocates applied to dismiss the appeal for want of prosecution. According to the affidavit in support, on 19th November, 2016 the parties appeared before a single judge of this court and R2 the applicants were ordered to file an affidavit in opposition and an application for extension of time within which to file the record of appeal. On 28th November, 2013 the applicants' advocates filed an application for an order for extension of time within which to file record of appeal. On 26th December, 2013 the applicants' appeal was dismissed for want of prosecution. At the hearing of this matter, Mr. Luo, standing in for Mr. Linyama, relied entirely on the heads of argument filed herein. In the filed heads of argument, Counsel for the applicants relied on the affidavit filed in support of the Notice of Motion filed on the 23rd January, 2014 deposed by one Dimitrios Kavartizis. Counsel referred us to Section 4(b) and Section 48(4) of the Act. Counsel conceded from the outset that when a party is in breach of procedural rules, the court must exercise its discretion to grant such an application. In his bid to persuade us to grant this application, Counsel ran us through a number of authorities which we are alive to and these include Chansa Chipili, Powerflex (Z) Limited vs. Wellington Kanshimike and Wilson Kalamba; 1 Stanley Mwambazi vs. Morester Farms Limited;2 Zambia Revenue Authority V. Jayesh Shah3 and Ruth Kumbi vs. Robinson Kaleb Zulu.4 In the cases cited we emphasized R3 that depending on the circumstances, matters should as much as possible be dealt with on the merits and that each application would be dealt with taking into account the reasons for the default or breach of the rules. Counsel in citing the case of Ruth Kumbi vs. Robinson Kaleb Zulu4 emphasized, inter alia, the following excerpt from our judgment: "We therefore, agree, with Mr. Malambo, SC., that even in this case now before us, this Court has power or jurisdiction to look at the reasons the applicant had of not complying with the "Unless" Order, and can use its discretion to either grant her leave or reject her application for leave. The view we hold is that looking at the reasons in her affidavit in support to this application, and the affidavit deposed by Mr. Simuchoba, we hold the view that the reasons given for abridgment of time are persuasive enough for us to exercise our discretion to grant the applicant the abridgment of time in which to file her record of appeal. Coming to the second question, which is inter related to the first question, it follows from what we have afore stated in relation to failure to comply with an "Unless" Order that the applicability of Order 3/5/9 of the RSC 1999 edition and Rule 12 of the SCR depend on the reasons given by the applicant for applying for abridging of time. We hold the view that the application for restoration of the appeal can either be granted or rejected depending on the given circumstances of the case. Looking at the affidavit of Mr. Simuchoba and looking at Hon. Mwansa's affidavit in opposition we hold the view that there is no evidence before us as to how the judgment has been perfected. The appeal is capable of restoration. We order restoration of the appeal. We grant leave to the applicant to file the record of appeal within the period of 45 days. We award costs to the respondent." R4 Additionally, Counsel relied on Section 37 of the Interpretation and General Provisions Act Cap 2 of the Laws of Zambia which provides as follows: Where in any written law a time is prescribed for doing any act or taking any proceeding and power is given to a court or other authority to extend such time, then, unless a contrary intention appears, such power may be exercised by the court or other authority although the application for the same is not made until after the expiration of the time prescribed. In summing up, it was submitted that when an 'unless Order' has been made and there is failure to comply within the specified period, it does not mean that the court is deprived of jurisdiction or power to extend time for doing a specific act within a specific time. It was submitted that this is an appropriate case for us to reverse the Ruling of the single judge delivered on the 13th December, 2013 and allow the appeal to be heard. Major Hara, on behalf of the respondent, filed his heads of argument and entirely relied on the same. He began by citing Rule 12 which he submitted was followed to the letter in this case in that the applicants by Consent Order were given an extension of seven (7) days within which to file their record of appeal and yet they failed to comply with the Order. That the applicants lay back without taking any action until the respondent applied to dismiss the appeal for want of prosecution on the 11th November, R5 2013 which was more than a year from the 20th November, 2012 adding that the delay of one year plus was inordinate and inexcusable. Counsel relied on the case of Nahar Investments Limited vs. Grindlays International Limited5 where we said that litigants who sit back until there is an application to dismiss do so at their own peril. Relying further on the case of Clayton vs. Hybrid Poultry Farm Limited6 it was submitted that the applicants have not demonstrated that their appeal has merit. Counsel also referred us to the case of Lusaka West Development Company Limited, B. S. K. Chiti and Zambia State Insurance Corporation vs. Turnkey Properties arguing *7 _ that the applicants should not be allowed to back out of a consent agreement which they entered into knowingly and freely. That, therefore, this is not a proper case for us to overturn the Ruling of the single judge. We have considered the evidence on record, the ruling of the single judge and the submissions by Counsel for the parties. It is not in dispute that after being granted seven (7) days within which to file the record of appeal the applicants failed to do so. When the respondent filed the application to dismiss the appeal for want of prosecution, this is when the applicants woke R6 up from slumber. The applicants conceded that they filed their application for extension of time to file the record of appeal after the respondent had filed their application to dismiss the appeal. As pointed out by Counsel for the respondent, the applicants have not advanced any good reason for their failure to comply with the rules. We are alive to the plethora of authorities cited by the applicants in this Motion which give guidance to courts when dealing with matters of this nature. We have noted that the single judge relied on the Nahar5 case in which we stated the following: "We wish to remind Appellants that it is their duty to lodge Records of Appeal within the period allowed including any extended period. If difficulties are encountered which are beyond their means to control (such as the non availability of the notes of proceedings which it is the responsibility of the High Court) Appellants have a duty to make prompt application to the court for enlargement of time. Litigation must come to an end and it is highly undesirable that the Respondents should be kept in suspense because of dilatory conduct on the part of the Appellants. Indeed, as a general rule, Appellants who sit back until there is an application to dismiss their appeal, before making their own frantic application for an extension, do so at their own peril if the delay has been inordinate or if the circumstances of any individual case, it appears that the delay to appeal has resulted in the Respondent being unfairly prejudiced in the enjoyment of any judgment in his favour or in any manner, the dilatory Appellant can expect the appeal to be dismissed for want of prosecution notwithstanding that he has a valid and perfectly acceptable explanation." R7 In the case of Ruth Kumbi4 which has been relied on by the applicants, the reasons advanced by the appellant in that case were persuasive and this court exercised its discretion in favour of the appellant. In the case in casu, paragraph 18 of the affidavit in support deposed to by the 1st applicant states as follows- "that the delay is neither deliberate nor by design and that the applicants are desirous to pursue the appeal." The issue before us is whether the reason given by the applicants for their failure to comply with the Consent Order dated 13th November, 2012 is sufficient. Rule 12(1) of the Supreme Court Rules which states that: " The court shall have power for sufficient reason to extend time for making any application, including an application for leave to appeal, or for bringing any appeal, or for taking any step in or in connection with any appeal, notwithstanding that the time limited therefore may have expired, and whether the time limited for such purpose was so limited by the order of the court or by these Rules, or by any written law." The key words in Rule 12 are "for sufficient reason." We agree with Counsel for the respondent that the applicants have not given sufficient reason for not adhering to the Consent Order which granted them seven (7) days within which to file the record of appeal. In this case, we are looking at a delay of over a year. R8 Surely, this delay is inordinate and cannot be condoned. All issues considered, we find that we cannot fault the learned judge for relying on the Nahar5 case and for refusing to exercise his discretion in favour of the applicants. In the circumstances, we find that the application has no merit and it is dismissed accordingly. G. S. PHIRI SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE M. MALILA, SC SUPREME COURT JUDGE R9