First Quantum Mining and Operations Ltd v Solomon Siame (Appeal No. 257/2020; CAZ/8/379/2020) [2022] ZMCA 135 (6 September 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) CAZ/8/379/2020 Appeal No. 257/2020 BETWEEN: FIRST QUANTUM MINING AND OPERATIONS LTD Appellant AND SOLOMON SIAME Respondent Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 6 th September 2022 For the Appellant: Ms. M. L. Nkonde of Messrs Mweshi Banda & For the Respondent: Mr. A. M. Musoka of Messrs Nhari Advocates Associates Extempore Ruling Legislation ref erred to: 1. Court of Appeal Rules , Statutory Instrument No. 65 of 2016 This application was brought by the Appellant seeking an order for extension of time within which to file an amended Memorandum of Appeal and Supplementary Record of Appeal. It was brought by Summons on 15th August 2022 pursuant to Order XIII Rule 3 of the Court of Appeal Rules. It is supported by an affidavit sworn by Mweshi Banda-Mutuna, an advocate of the Superior Court seized with conduct of the matter on beha lf of the Appellant. Rl In the affidavit, Counsel gave a brief history of the matter being that on 14th October 2020 the Appellant lodged an appeal against a judgment of Kawimbe, J delivered on 31 st August 2020 by filing into this Court, a Notice of Appeal and Memorandum of Appeal setting out the grounds of appeal therein. On 23 rd December 2020, the Appellant filed an application for leave to amend the Memorandum of Appeal by way of withdrawal of the Record of Appeal to facilitate the filing of an amended Memorandum of Appeal, Record of Appeal and Heads of Argument. By a Consent Order of 19th January 2021 , the parties agreed that the Appellant could amend its Memorandum of Appeal and file an amended Memorandum of Appeal together with an amended Record of Appeal and amended Heads of Argument within 14 days of the Consent Order. The documents were meant to have been filed by 2 n d February 2021. Pursuant to that agreement, the Appellant duly amended its documents in line with the Consent Order and the amended Record of Appeal and Heads of Argument were filed into Court on 1st February 2021. However, their clerk omitted to file the amended Memorandum of Appeal with the documents but proceeded to file them into Court on 21 st April 2022, which was outside the time stipulated in the Consent Order. That this anomaly only came to light when Counsel was making inquiries with the Court Registry on the cause listing of the appeal. On inquiries from their clerk as to why the amended Memorandum of Appeal was only filed on 21 st April 2022 instead of 2 nd February 2021 , he informed them that he had inadvertently omitted to file the said amended Memorandum of Appeal and when he realized the omission, he decided to file the document outside the stipulated time frame. R2 Counsel added that it had become necessary to regularize the record by filing the amended Memorandum of Appeal, which is on the Court record as having been filed on 21 st April 2022, a date outside the agreed period in the Consent Order. That the said document would not be altered in any way save to file within the time the Court would stipulate. Further, that the inadvertent omission by the Office Clerk to file the amended Memorandum of Appeal alongside the other documents was an honest mistake which was not meant to disrespect the Court in any way. Counsel contended that this application would not prejudice the Respondent in any way. Prior to filing this application, the Appellant's Counsel brought an ex parte application for leave to file amended Memorandum of Appeal and a Supplementary Record out of time pursuant to Order XIII, Rule 3(1) and (2) of the Court of Appeal Rules. The provisions of Subrule 2 thereof, require an applicant intending to rely on Order XIII Rule 1 to first seek leave of the Court to file the application out of time. After hearing Counsel for the Appellant, I allowed this application for leave to file the application out of time. The matter was scheduled for hearing of the application for extension of time within which to file an amended memorandum of appeal and Supplementary Record of Appeal on 6 September 2022. Counsel for the Appellant and for the Respondent were in attendance for the hearing. Counsel for the Appellant relied on the affidavits on record and the Respondent's Counsel gave oral submissions relying on authorities. R3 By this application, the Appellant seeks an order for extension of time within which to file the amended Memorandum of Appeal and a Supplementary Record of Appeal. The Respondent did not file an affidavit in opposition, but his Counsel cited various authorities to convince the Court not to allow the application. I have carefully considered the evidence in the affidavits on record, the submissions of Counsel for both parties and the relevant rules. The provision on civil appeals, Order X Rule 6 (a) of the Court of Appeal Rules requires that an Appellant shall within sixty days of filing a Notice of Appeal lodge a Record of Appeal and Heads of Argument with the Registry. In the absence of doing so, Order XIII Rule 3 of the Court of Appeal Rules provides that a Court may 'for sufficient reason extend time for making an application or for taking any step in or in connection with any appeal, despite the time limited having expired. ' The import of the foregoing provision is that this Court is empowered to exercise wide discretion regarding time within which Record of appeal can be filed save to state that such power may be exercised for sufficient reason. In the present case, the record shows that a Notice of Appeal was filed into Court on 14th October 2020. That during the preparation of the Record of Appeal and Heads of Argument, it came to light that the grounds of appeal contained in the Memorandum of Appeal did not properly and sufficiently address all the issues which the Appellant was dissatisfied with in the judgment. Counsel also discovered that the Record of Appeal was not properly prepared, and it became necessary to withdraw the appeal documentation before Court. R4 The Appellant brought an application on 23rd December 2020 seeking to withdraw its documents with a view to amend to address all the issues with which the Appellant was dissatisfied with. Following this application, a Consent Order was executed between the Appellant and the Respondent on 19th January 2021 whereby the parties agreed that the Appellant be at liberty to file the additional grounds of appeal by way of filing of an amended Memorandum of Appeal, Record of Appeal and Heads of Argument within 14 days from the date thereof. According to Counsel for the Appellant, their office clerk the Record of Appeal and Heads of Argument into Court on 1s t February 2021 but inadvertently omitted to file the amended Memorandum of Appeal. He later proceeded to file the document on 21 st April 2022 out of time. A review of the affidavit of 23rd December 2020 in support of the application to withdraw exhibits a copy of the draft amended Memorandum of Appeal that the Appellant intended to file at the time. It shows a total of nine grounds of appeal with the inclusion of new grounds as 2, 4 and 9 . The draft Memorandum of Appeal exhibited in the said affidavit is identical to the amended Memorandum of Appeal filed into Court on 21 st April 2022. It is therefore clear that this document was prepared at the time that the amended Record of Appeal and Heads of Argument were being filed on 1st February 2021 and has not been generated as an afterthought. I therefore accept the explanation given by the Appellant's Counsel that the error in not filing the amended Memorandum of Appeal together with the Record of Appeal and Heads of Argument was a genuine error. RS Given that the Memorandum of Appeal is already on the Court record and the Respondent did not object to it but in fact responded to the same, I am satisfied that the Respondent will not be prejudiced in any way whatsoever by allowing the application for extension of time. It will simply regularize the Court record, which has a Memorandum of Appeal filed out of the agreed stipulated time. In the interest of having this matter dealt with, without any further delay, I am of the view that this is a proper case to exercise the discretion envisaged under Order XIII Rule 3 (1) of the Court of Appeal Rules. I accordingly grant the application as prayed. I direct that the Appellant shall file the amended Memorandum of Appeal and supplementary Record of Appeal within seven (7) days from the date hereof. I award costs to the Respondent for this application, to be taxed in default of agreement. Dated at Lusaka this 6 th September 2022 u. Sharpe-Phiri COURT OF APPEAL JUDGE R6