First National Bank Limited v Diana Chintu Muyani Sikazwe and Ors (CAZ/8/348/2022) [2024] ZMCA 275 (30 January 2024)

., • IN THE COURT OF APPEAL CAZ/8/348/2022 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: uBLICo c OURT01-,. 3 0 JAN ?ll?ti L , . FIRST NATIONAL BANK APPELLANT AND 15 T RESPONDENT DIANA CHINTU MUYANI SlKAZWE AMON CHIKUWA 2N° RESPONDENT TOYOTA ZAMBIA LIMIUTED 31U> RESPONDENT MACFARLANES TRUCK AN:P CAR LIMITED 4TH RESPONDENT BEFORE: HONOURABLE M. M. KONDOLO SC, JA lN CHAMBERS I I For the Appellant and· the 3~d Respond'ent: Mr. P. Chomba of Messrs / Mulengd Mundashi Legal Practitioners \ \ ' I For the l111t Respondent: Mr. B. Zulu of Messrs G. M. Legal Practitioners For the ,2nd Respondent: Not Present For the 4 th Respondent: Mr. S. K. Mukuka of Messrs C. L. Mundia & Co. RULING CASES REFERRED TO: 1. Legal Resources Foundation Ltd v Norwegian Ministry of Foreign Affairs CAZ/8/214/2017 2. Leopold Walford Zambia Limited v Unifrieght ( 1985) ZR 302 SC • R2 of24 3. Flower & Another v CD Group Plc & Another CAZ/8/47 4. D. E. Nkhuwa v Lusaka Tyre Services (1977) ZR 5. Chfzyuka & Another v First Alliance Bank Ltd CAZ/8/ 183/2017 6. Sailaa Ngowani & 6 Others v Flamingo Farm Limited SCZ/5/2019 7. Rachel Lungu Saka v Hilda Bwalya Chomba Appeal No. CAZ/08/059/2017 8. Access Bank (Z) Limited v Group Five/Zcon Business Park Joint Venture (sued as a firm) SCZ/8/52/2014 9. Kapoko v The People (2016/CC/0023) 12016] ZMCC 6 10. Leopold Walford Zambia Limited v Unifrieght (1985) ZR 302SC STATUTES REFERRED TO l. The Constitution of Zambia. Chapter 1, Laws of Zambia 2. Court of Appeal Act No. 7, 2016, Laws of Zambia 3. Court of Appeal Rules, S. I. No.65 of 2016, Laws of Zambia 11. INTRODUCTION 11.1. The Plaintiff commenced an action in the High Court against the Appellant herein who was the l 8t Defendant. The 3rd and 4th Respondents were 2 nd and 3rd Defendants in the High Court. .. • R3 of24 11.2. The Appellant was granted leave to appeal out of time and on 20th August, 2022 filed a notice of appeal together with a memorandum of appeal. 11.3. The 4th and 3rd Respondents filed applications for leave to apply for extension of time within which to file notices of cross appeal on 6th April, 2023 pursuant to Order 13 Rule 3 (3) Court of Appeal Rules. 2016 (CAR) and on 28th July 2023 pursuant to Order 7 Rules 1 and 2 and Order 13 Ru.le 3 CAR, respectively. 11.4. Both parties filed affidavits and skeleton arguments in support of their applications. . 11.5. The two Applicants even though listed as Respondents share similar interests with the Appellant who seeks no relief against them. The cross appeals they seek to file intend to impugn the reliefs granted to the I st Respondent in the Judgment appealed against. 11.6. The 1st Respondent opposed both applications and filed affidavits in opposition and skeleton arguments to that effect. 11.7. I shall begin by considering the 4 th Respondent's application because it was filed earlier than the 3 rd Respondent's. • R4of24 12. 4°1 RESPONDENT•s CASE 12.1. Counsel representing the 4 th Respondent Ms. Mukuka deposed her client's affidavit and attested that when her firm was appointed they filed a notice of appointment on 23rd February, 2023. 12.2. She stated that upon perusing the record of appeal, the 3 rd Respondent wished to add to the grounds of appeal filed by the Appellant. 12.3. That due to change of Advocates and difficulties in accessing the records of the Court in Kitwe the 3 rd Respondent was unable to furnish Counsel with instructions within the time specified by the law to enable the filing of the cross appeal. 12.4. That the failure to comply was not meant to disrespect the Court and the 1st Respondent would not be prejudiced if the application is allowed. 12.5. Counsel submitted that Order 13 Rule 3 (1) (CAR) gives this Court power to extend time for sufficient reason. The case of Legal Resources Foundation Ltd v Norwegian Ministry of Foreign Affairs 111 was cited where this Court held that "sufjident cause" must be considered in the context of the circumstances surrounding a particular matter. • RS of24 12.6. It was submitted in that regard, that having shown that it was desirous of prosecuting this matter on the merits, the 4 th Respondent should be heard on the merits and that the matter not be decided on a technicality. Article 118 (2) of the Constitution was cited on the issue that Courts must not pay undue regard to procedural technicalities and the case of Leopold Walford Zambia Limited v Unifrieght 121 was cited where it held that the breach of a regulatory rule is curable. 12.7. At the hearing, Counsel stated that she would rely on the filed process. She reiterated that the 4 th Respondent was represented by different Lawyers in the High Court and Messrs C. L. Mundia & Co were appointed on 23rd February, 2023. She initially stated that they were served with the record of appeal and heads of argument on 23•d February, 2023 but immediately recanted stating that she was not sure when the record of appeal was served. 12.8. She further stated that the 4 th Respondent was not opposing the appeal and had only decided to follow this route because her client was named as the 4 th Respondent. 12.9. She further argued that the question of the Court considering the prospects of an appeal succeeding is not a factor in • R6 of24 determining an application to file a cross appeal. She submitted that the wording of the Court of Appeal rules implies that any Respondent has the automatic option to cross-appeal once in receipt of the record of appeal and heads of argument. 12.10. Counsel closed by saying that the 4th Respondent was not advancing fresh grounds as the grounds they wished to advance were already on record. That the 4th Respondent simply wants an opportunity to be heard at the hearing of this appeal. 13. RESPONDENTS, RESPONSE TO THE 4 th RESPONDENT'S SUBMISSIONS 13.1. Counsel for the 1st Respondent swore the affidavit in opposition and attested that the Appellant only filed the appeal after an application to appeal out of time was granted. 13.2. That if the 4th Respondent desired to appeal it should have done so when the judgement was passed in 2021. 13.3. That as at 2nd February, 2023 the 4th Respondent was still being represented by its Lawyers Messrs Mutemwa Chambers in relation to an application for assessment of damages. That the 4 th Respondent was aware of the status of the case both in this • R7of24 Court and the Court below but did not take any steps to prosecute the appeal. 13. 4. That the 4th Respondent has not shown why its current Lawyers who were appointed in February, 2023 took a further month before applying for an extension of time in April 2023. 13.5. It was submitted that there had been inordinate delay by the 4th Respondent before it applied for an extension of time and the only reason given for the delay is that there was a change of Advocates. 13.6. Further, that the 4th Respondent had not exhibited a draft memorandum of cross appeal thus preventing this Court from previewing the cross appeals prospects of success. 14. 3RI> RESPONDENT'S CASE 14 .1. In the 3 rd Respondents affidavit it was attested that during the High Court proceedings the Appellant was represented by its in-house Counsel whilst the 3rd Respondent was represented by Messrs Mulenga Mundashi Legal Practitioners (MMLP). 14.2. That after Judgment was delivered in favour of the 1st Respondent the 3rd Respondent began the internal review process for purposes of determining whether to appeal. • RS of24 14.3. In the meantime, MMLP were engaged by the Appellant to represent them in the appeal and they filed the notice of appeal and named the 3rd Respondent as such. That notwithstanding this fact, the Appellant has no express or implied claim against the 3rd Respondent. 14.4. That about 6 months later in May 2023, the 3rd Respondent's management resolved to appeal and re-engaged MMLP as its Advocates. 14 .5. That the delay in filing the cross appeal was on account of the 3 rd Respondent's internal approval process. 14.6. The 3 rd Respondent exhibited a copy of notice of the cross appeal it intends to file before this Court. 14.7.lt was submitted that this Court had power to grant this application under Order 13 CAR as well as by invoking its inherent jurisdiction. 14.8. Counsel cited the cases of Flower & Another v CD Group Plc & Another 131; D. E. Nkhuwa v Lusaka Tyre Services 141 and Chizyuka & Another v First Alliance Bank Ltd <61 on a party's right to apply for an extension of time after time has expired and on the Court's power to grant an extension of time where a party provides the Court material upon which to make such a • R9of24 decision by showing that particular circumstances made it impossible or extremely difficult to comply with the time requirement. 14. 9. It was further submitted that this Court has a duty to properly manage the proceedings before it to ensure justice in the matter and in the interests of justice to ensure that parties present their respective cases on the merits. 14 .10. Counsel emphasised that the cross appeal is not challenging the Appellant's arguments but targeting the Judgment and the 1st Respondent will not be prejudiced by this application because she has adequate time within which to respond to the cross appeal. 14 .11. Counsel then addressed the question of the possibility of a perception of bias considering that MMLP are now representing both the Appellant and the 3 rd Respondent. It was explained that the two parties do not have competing interests and the 3rd Respondent only sought to challenge the Judgment because it was named as a Respondent and it could only do that by filing a cross appeal. 14.12. At the hearing, Counsel for the 3 rd Respondent basically repeated the facts and arguments in the filed process. He re- RlO of24 emphasised that having been named as the 3rd Respondent, the 3 rd Respondent would now like to be heard in these appeal proceedings and that is why the 3 rd Respondent has filed this application for extension of time. 14.13. Counsel confirmed that MMLP represented the 3 rd Respondent in the High Court and it was notified of the Judgment but informed its Counsel that it would revert. 14.14. Counsel further informed the Court that MMLP was later engaged by the Appellant and the 3rd Respondent was never served with the record of appeal and heads of argument. 15. 1 •t RESPONDENT'S RESPONSE TO THE 3RD RESPONDENT'S SUBMISSIONS 15.1. Counsel for the }st Respondent noted that Order X Rule 11 (1) (a) CAR states that a respondent who intends to cross appeal must file a notice of cross appeal no more than 7 days after being served the record of appeal and, if late, such respondent can apply for leave of Court to file the cross appeal out of time. 15.2. Counsel urged the Court to consider that the real purpose of the application was to afford the 3rd Respondent the • • Rll of24 opportunity to appeal because it was aware of the Judgment but did not appeal at the time as it was awaiting internal processes to be concluded. 1S.3. It was pointed out that the Appellant was also late in filing the appeal but was granted leave to do so after making the appropriate application and filed its notice of appeal on 26th August, 2022. 15.4. That the Appellant served the record of appeal on the 3rd Respondent in October, 2022 but only decided to launch its cross appeal 8 months later in July, 2023. That the 3rd Respondent had provided no reason as to why its internal process lasted for over 2 years which demonstrated wilful and deliberate disobedience. 15.5.0n the issue of conflict of interest, it was submitted that Counsel should not take a brief even where there was the mere appearance of a conflict of interest such as in casu where the same Lawyer was representing both the Appellant and a Respondent in the same matter. 15.6. That the agenda's being pursued by the Appellant and the 3 rd Respondent were the same. R12 of24 15.7. Further, that MMLP represented the 3rd Respondent in the High Court but later switched to representing the Appellant in this Court and filed a record of appeal listing the 3 rd Respondent as a Respondent despite knowing full well that the Appellant had no issue with the 3rd Respondent as its only grievance with the Judgment was as it related to the 1st Respondent. 15.8. That MMLP should not be allowed to represent the 3rc1 Respondent because there was an appearance of conflict of interest. 15.9. The same arguments were presented at the hearing and it was submitted that granting this application is equivalent to more or less giving the Appellant a second bite of the cherry and this would prejudice the 1st Respondent's interests. 15.10. It was prayed that the application be dismissed with costs. 16. 3 rd RESPONDENT'S REPLY 16. 1. In reply, the 3 rd Respondent submitted that a detailed reason had been given for the delay in filing the notice of cross appeal. • R13of24 16.2. Counsel further submitted that the notice of cross appeal was never served on the 3rd and 4 th Respondents because they were only reflected on the record for completeness of the record. 16.3. That in the High Court, the 1st Respondent's claims against the Appellant, the 3rd and 4 th Respondents were similar and the Judgment collectively found the three parties to have been reckless. That the interests of the three parties are the same and that is why the cross appeals are substantially the same as the appeal. 16.4. It was repeated that there was no conflict of interest at all and submitted that the appeal had not yet been cause listed and it was in the interests of justice to allow the application and that costs be in the cause. 17. ANALYSIS AND DECISION 1 7 .1. I have considered the process and arguments filed and advanced by the parties. 17.2. Both the 3rd and 4 th Respondents moved the Court pursuant to Order 13 Rule 3 (3) CAR which allows for the filing of an application for leave to extend time after the time required for R14of24 an action has expired and after the 21-day grace period provided by Order 13 Rule 3 (2) CAR have both expired. 17 .3. Paragraph 4 of the affidavit in support states that Counsel on record was appointed on 23rd February, 2023 and that upon perusing the grounds of appeal and record of appeal the 4 th Respondent was desirous of putting forward additional grounds of appeal to those raised by the Appellant. In her verbal submissions counsel first indicated that the record of appeal was served on them on 23rd February, 2023 and almost immediately recanted and stated that she was not sure when it was served. 17.4. Two things are apparent from these facts; Firstly, regardless of Counsel's viva voce submissions, I find that the 4 th Respondent was aware of the appeal on or before 23rd February, 2022 because it could only give such instructions if it was aware of an appeal; Secondly, the purpose of the cross appeal was to add to the grounds of appeal filed by the Appellant. 17 .5. With regard to the 3rd Respondent, their Counsel on record MMLP, attested that they represented the 3rd Respondent in the High Court but did not receive instructions to appeal. R15 of24 They however received instructions from the Appellant who was the 1st Defendant in the High Court and filed a record of appeal after obtaining leave to file it out of time. According to paragraph 10 of the affidavit in support, the Appellant named the 3rd Defendant as 3rd Respondent in these proceedings even though the Appellant has no express or implied claim against the said 3rd Respondent. They accordingly informed the 3 rd Defendant that they had been engaged by the Appellant. 17.6. That they received instructions from the 3rd Respondent to appeal the Judgment sometime in May 2023. 17. 7. Counsel for the 3rd Respondent submitted viva voce that the 3 rd and 4 th Respondents were never served with the record of appeal because "they were only reflected as Respondents for completeness of record". 17 .8. To begin with, the statement is quite incorrect because Counsel for the 4 th Respondent indicated that the 4 1h Respondent was actually served with the record of appeal and I have made a finding that it was served on or before 23rd February, 2022. • R16 of24 17.9. Further, Counsel for the 3 rd Respondent did not bother to provide the date on when instructions were received from the 3rd Respondent. In an application regarding compliance with time requirements, the material dates are extremely important i.e. the date when the time expired and the date on which the application for leave was made. Added to that, the dates must be substantiated, otherwise the Court may find that it has not been provided with sufficient material upon which to exercise the discretion sought by the applicant. 17 .10. This case is somewhat complicated by the fact that there was no need for the Appellant to physically serve the record of appeal on the 3 rd Respondent because they were represented by the same lawyers. 17.11. The cardinal date is when MMLP received instructions from the 3 rd Respondent, as that is the date MMLP had authority to act on behalf of the 3rd Respondent to accept "service" of the record of appeal from the Appellant. That is the day when, in normal circumstances, the 7 days within which to file the notice of cross appeal would start running. .., R17 of24 17.12. The situation in casu was complicated by the fact that the Appellant and the 3 rd Respondent were being represented by the same Lawyers. This unusual and somewhat confusing situation is perhaps what the 1st Respondent referred to as a conflict of interest on the part of MMLP. 17.13. I take it that the actual date when instructions were issued was either deliberately withheld or the 3 rd Respondent and its Lawyers are simply unable to substantiate it. 1 7. I 4. The 3rd Respondent's failure to substantiate when it issued instructions to its Lawyers is quite grave especially in the context of the fact that its decision as to whether or not to participate in this appeal was hibernating somewhere in its corporate structure for a period of about two years. 17 .15. The fact of the matter remains that whatever the case, the 3 rd Respondent was out of time and the only reason given is that it was waiting for internal management approval. 17 .16. I wish to note that the record reveals a concerning attitude by the 3rd Respondent which seems to suggest that the parties to the appeal and the Court are subject to the 3rd Respondent's internal procedures. • R18 of24 17 .1 7. The 3 rd Respondent was represented in the High Court by Counsel who they have re-engaged. In my view, it was incumbent upon the 3 rd Respondent and its Lawyers to be mindful of the time limitations regarding appeals and cross appeals from the High Court. 17.18. This was clearly a matter to which the 3rd Respondent placed little or no urgency to the point where, instead of being an Appellant it was listed as a Respondent. This was purely on account of taking a laissez faire attitude towards complying with the time requirements set out in the rules. 17.19. Further, the 3rd Appellant has not explained how its "internal management approvaf' process works and how it prevented them from applying for an extension of time, within the 7 days provided by Order 10 Rule 11 (1) CAR. It is unclear whether the application was late by over 21 days in which case the application should have been made within the 21 days' grace period provided by Order 13 Rule 3 (2) CAR or made beyond the 21 days meaning that the application should have been made pursuant to Order 13 Rule 3 (3) CAR. R19 of24 17.20. The 3rd Respondent made a general application under Order 13 CAR, which perhaps points to the fact of uncertainty about how late the application actually was. 17 .21. Not explaining how the internal management approval process prevented the 3rd Respondent from complying with the rules, at best, amounts to providing an unacceptable or unsubstantiated reason and, at worst, amounts to providing no reason at all. 17.22. The requirement for seeking an extension of time under Order 13 CAR is that where an applicant shows sufficient reason the Court may exercise its discretion and grant an extension of time. Both the cited law and case law indicate that sufficient reason must be provided. 17.23. The Applicants have both cited authorities that emphasise the need for matters to be determined on the merits and not on technicalities. 17 .24. Whilst it is accepted that the authorities which stress the need to as far as possible hear matters on the merits are still good law, a great degree of onus has been placed on parties to provide very good and acceptable reasons that .. .,. •. R20of24 indicate that they were in no position to comply with the time requirements set out by the rules. 17.25. In the case of D. E. Nkhuwa v Lusaka Tyre Services Limited supra cited by both parties, when delivering a Judgment on behalf of the Supreme Court Gardner AD CJ sounded a timely warning to parties with the following dicta; "It is a regrettable fact that in recent years' legal practitioners in this country have approached the need to comply with the rules as to time with complete nonchalance. This Court has had occasion in the past to comment adversely on the attitude of legal practitioners to compliance with other roles of procedure but it is time that all legal practitioners were made to understand that where the rules prescribe times within which steps must be taken these rules must be adhered to strictly and those practitioners who ignore them will do so at their own peril. The provf.sfons in the rules allowing for extensions of time are there to ensure that if circumstances prevail which make it impossible or even • R21 of24 extremely difficult for parties to take procedural steps within prescribed times relie,f will be given where the Court is satisffed that circumstances demand ft. It must be emphasised that before this Court is able to exercise this discretion to grant such relief there must be material before ft on which it can act." (emphasis mine) 17.26. Counsel for the 3rd Respondent cited the case of Sallas Ngowanl & 6 Others v Flamingo Farm Limited C61 and opined on that basis that this Court has a duty to manage proceedings before it to ensure justice and as part of its case management policy issue any other reliefs and make Orders for directions that allow cases to be heard on the merits. The cited case was directed at trial Courts who were directed to ensure that its proceedings are Court driven and that delinquent parties are sanctioned appropriately. The cited case in no way assists the 3 rd Respondent. 17.27. On the issue of the administration of justice and complying with the rules of procedure this is what we said in the case of Rachel Lungu Saka v Hilda Bwalya Chomba 171; .,. • R22 of24 We need to reiterate that the role of the rules of procedure in the administration of justice is fundamental and as such they should be followed vigorously as they are there to regulate the processing of appeals and facilitate speedy and orderly administration of justice ........ . We however, take this opportunity to tvarn. parties and indeed the learned Advocates representing parties before this Court that in future where there is dilatory conduct and deliberate noncompliance with the rules of procedure in particular CAR /Court of Appeal Rules], the parties shall bear the consequences as we shall not hesitate to refuse applications as the one in casu and consequently dismiss the appeals." 17 .28. Reverting to the 4 th Respondent I note that it explained its failure to file the cross appeal within the prescribed period by simply stating that it experienced difficulties in accessing the records of the Court in Kitwe and was unable to furnish its Lawyers with instructions. The nature of the stated difficulty R23 of24 was not described and nothing was produced to support the veracity of the statement. 17.29. I also note with dismay that despite the position of the law having been clarified on numerous occasions, several parties represented by Counsel have continued citing Article 118 (2) of the Constitution when trying to defend their failure to comply with time requirements under the rules. The cases of Access Bank (Z) Limited v Group Five/Zcon Business Park Joint Venture (sued as a firm) 1s1 and Kapoko v The People 191 clarified that the Constitution never intended to do away with the rules of procedure and those who fail to comply with the rules do so at their own peril. The Leopold Walford Zambia Limited Case supra cited by the 4th Respondent does not help at all. As earlier indicated, what is cardinal is to convince the Court that there is sufficient reason to grant leave to extend time. 17.30. Even though not the reason for refusing this application, I cannot help but comment on the optics, regarding the circumstances under which the Appellant quite literally attempted to open a backdoor, for the 3,d and 41h Respondents to file what should have been their respective • R24 of24 notices of appeal and memorandums of appeal out of time but disguised as cross appeals. It is no wonder that the 1st Respondent was lost for words and homed in on an allegation of conflict of interest when it was actually a situation of guile or even arguably, abuse of the Court process. 17.31. Having considered the reasons given by the 3rd and 4th Respondents for failing to file their respective notices of cross appeal in accordance with the rules I find that they have not provided sufficient material to enable me exercise my discretion to grant them leave to file an application for extension of time within which to file a notice of cross appeal and heads of argument. Dated at Lusaka this 3ot11 day of January, 2024. C •••••••••••••••••••••••••••••••••••••••••••• -. M. M. KONDOLO, SC COURT OF APPEAL JUDGE