Alexandre Ivanovich Nikichaev v Flameberry Limited and Ors (APP NO. 45 OF 2022; CAZ/08/124/2022) [2023] ZMCA 370 (12 June 2023)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) CAZ/08/124/2022 APP NO. 45 OF 2022 BETWEEN: Appellant FLAMEBERRY LIMITED LIDIA KOROLOV A KATERYNA VALASHENKO Coram: Kondolo SC, Chishimba and Sharpe-Phiri, JJA On 1 June 2023 and on 12 June 2023 For the Appellant: Ms. T. Mvula and Ms. S. Zulu of Messrs Theotis Mutemi Legal Practitioners For the Respondents: No appearance RU LING Sharpe-Phiri, JA, delivered the Ruling of the Court Legislation referred to: 1. The Court of Appeal Act, No. 7 of 201 6 2. Court of Appeal Rules, Statuto,,y Instrument No. 65 of2016R. Cases to: 1. Legal Resources Foundation v Norwegian 1'vfinist1y of Foreign Affairs, CAZ/ 08/314/2017 2. De Khuwa v Lusaka Tyre Services Limited (19 77) ZR 43 3. Nahar Investment Limited v Grind lays Bank International Zambia Limited (1984) ZR 81 4. Attorney General v Cecil Dulu Nundwe SCZ/8/2 0/2004 5. Elias Tembo v Florence Chiwala Salati and 2 Others SCZ/239/2016 6. Finance Bank v Kalambata SCZ/8/257/2011 7. Tembo V Chirwa and Others SCZ/8/2022 8. Stanbic Bank Zambia Limited v Savenda Management Services Limited (2016) Vol. 3 ZR. R1 1. INTRODUCTION 1.1 This is a ruling on a Motion brought by the Appellant for an order to vary or reverse an order of the Siavwapa, J of 8th July 2022 sitting as a single Judge of this Court. 1.2 The Notice of Motion was brought pursuant to Section 9(b) of the Court of Appeal Act as read together with Order X Rules 2(8) of the Court of Appeal Rules. 2. BACKGROUND 2.1 The background of this matter is that the Appellant (Plaintiff in the Court below) commenced an action in the Lusaka High Court against the Respondents (Defendants in the Court below) claiming the following: (i) A declaration that the 1 si Defendant is not entitled to conduct its business from the Plaintiffs property known as No. 7 Chinungu Close, Woodlands, Lusaka and is operating there illegally; (ii) An order that the !51 Defendant vacates the Plaintiffs property known as No. 7 Chinungu Close, Woodlands, Lusaka forthwith; (iii) An injunction to restrain the Defendants whether by themselves or by their servants or agents or otherwise whosoever from utilizing the Plaintiffs prope1ty known as No. 7, Chinungu Close, Woodlands, Lusaka as business premises; (iv) Damages for trespass against the 1 si Defendant; (v) Costs; and (vi) Any other reliefs the Court may deem fit. R2 2.3 The Court below delivered a ruling dismissing the action on account of multiplicity of actions and granted leave to appeal. Being dissatisfied with the Ruling of the lower Court, the Appellant intended to file his record of appeal and heads of argument by 20 th June 2022. 3. THE NOTICE OF MOTION BEFORE COURT 3.1 The Appellant's Notice of Motion was filed into Court on 19th September 2022 and was supported by an affidavit of even date. · 3 .2 In the affidavit in support, deposed to by the Appellant, he contended that the Appellant's advocates were unable to file the record of appeal and heads of argument within the stipulated period because the Appellant had tenninated their mandate to represent him following a disagreement. 3 .3 That before the advocates could file the notice to withdraw as advocates, the Appellant re-appointed them on or about 17th June 2022 and on 21 st June 2022 they brought an application before the single Judge for an Order for extension of time within which to file the record of appeal and heads of argument. 3 .4 That on 15 th July 2022, they made a follow up on the application for extension of time and found a ruling by Siavwapa, J dated 8th July 2022 dismissing the application on grounds that differences between advocate and client did not amount to sufficient reason under Order XIII Rule 3 of the Court of Appeal Rules. R3 4. ARGUMENTS IN SUPPORT OF MOTION 4.1 The Appellant's motion was supported by Skeleton Arguments filed on 19th September 2022 in which the Appellant argued that in line with Order X Rules 2(8) of the Court of Appeal Rules as read together with Part II Section 9 of the Court of Appeal Act, No. 7 of the 2016, this Court has power to vary or reverse the decision of the single Judge. 4.2 The Appellant argued that this notice of motion is properly before Court for the renewal of the application for extension of time within which to file the record of appeal and heads of argument. 4.3 The Appellant further argued that the reason outlined was sufficient for this Court to grant the Appellant leave to file its record of appeal and heads of argument. Counsel cited the cases of Legal Resources Foundation v Norwegian Ministry of Foreign Affairs 1 , D. E Nkhuwa v Lusaka Tyre Services Limited2 . Counsel submitted that the application for extension of time was made promptly and that there was no inordinate delay as the record showed that they were supposed to file the heads of argument on or before 20th June 2022 and filed the application for extension of time on 21 st June 2022. 4.4 Counsel further submitted that the delay in bringing the application was not inordinate and cited the case of Nahar Investment Limited v Grindlays Bank International Zambia Limited3 which states: "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 of control R4 (such as the non-availability of the notes of proceedings which is the responsibility of the High Court to furnish), 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 Respondents should be kept in suspense because of dilatory conduct on the part of the Appellants." 4.5 Counsel fmiher placed reliance on the case of Attorney General v Cecil Dulu Nundwe4 and Elias Tcmbo v Florence Chiwala Salati and 2 Othcrs5 . Counsel argued that the single Judge declined to grant the order for extension of time on 8th July 2020 adding that the Appellant only became aware of the of the Court's decision on 15th July 2022 after a follow up. 4.6 The cases of Finance Bank v Kalambata6 and Tembo V Chirwa and Others 7 were cited in reference to the importance of the Court having to release rulings or orders to the parties expeditiously and making the parties aware of a court's decision. 4. 7 Counsel contended that the Appellant provided sufficient reasons to warrant the relief sought and prayed that the application be granted. 5. OPPOSITION TO THE MOTION 5 .1 The Respondents did not file any affidavits or arguments in opposition in the application before us. RS 6. DECISION OF THIS COURT 6.1 The motion was heard on 1st June 2023. The Appellant was represented by Ms. T. Mvula and Ms. S. Zulu ofTheotis Mutemi Legal Practitioners. The Respondents were not before Court and as earlier stated, no affidavits or arguments were filed in opposition by the Respondents, an indication that they did not oppose the application. The Appellant relied on the arguments filed before Court and repeated summary submissions of the said arguments to augment the Appellant's case. 6.2 Ms. Mvula stressed that the delay in this matter was not inordinate as upon the Appellant re-engaging her services on 17th of June 2022, she filed an application for extension three days later, on 21 st of June 2022. This was only 1 day after the lapse of the sixty day period within which to file Record of Appeal and Heads of Arguments. 6.3 Counsel referred the Court to the case of Stanbic Bank Zambia Limited v Savcnda Management Services Limited8 in which the Supreme Comi made several pronouncements on this subject which included that; every application must be considered on its own merits. The Court guided that in exercising its discretion, Courts must examine the circumstances of each case; and that even where Counsel failed to take a step out of negligence or incompetence, the Supreme Court could exercise its discretion in favour of the Appellant in appropriate circumstances. 6.4 We have carefully considered the evidence on record and the submissions of the parties as well as the relevant rules of this court. R6 6.5 By this motion, the applicants seek to vary, discharge, or reverse a decision of a single Judge of this Court in which he refused to grant an extension of time on the basis that differences between Advocates and client did not amount to sufficient reason under Order XIII Rule 3 of the Court of Appeal Rules. 6.6 The issue for determination is whether this Court should vary or reverse the decision of the single Judge refusing to grant an extension of time within which to file the Record of Appeal and Heads of Argument. Section 9 (b) of the Court of Appeal Act under which this motion has been brought, empowers the Comito vary, discharge or reverse a decision of a single Judge of the Court if it deems fit. The filing of the requisite documentation was to be done in accordance with the provision on civil appeals, being Order X Rule 6 (a) of the Court of Appeal Rules, which requires an Appellant to file into Court, a Record of Appeal and Heads of Argument w ithin sixty (60) days of filing a Notice of Appeal. 6.7 This provision is clear and unambiguous. Subject to an extension of time, an Appellant desirous of appealing to the Court of Appeal must lodge its appeal within the prescribed period. In the event of failing to do so, a party can invoke the General Provisions of Order XIII Rule 3 of the Court of Appeal Rules, which provides that: '3(1) The Court may,for sufficient reason extend the time/or - ( a) making an application, including an application for leave to appeal,· (h) bringing an appeal; or (c) taking any step in or in connection with an appeal. R7 (2) An application to the Court for extension of time in relation to a judgment or the date of expiration of the time within 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. (3) 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 any 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. ' 6.8 The import of the foregoing provision is that this Court is empowered to exercise wide discretion regarding time w ithin which a Record of appeal can be filed. Except that such power must be exercised for sufficient reason in line with the guidance of the Supreme Court in the case ofD. E. Nkhuwa v Lusaka Tyre Services Limited. 6.9 In the D. E. Nkhuwa case, their Lordships held that: 'The granting of an extension of time within which to appeal is entirely in the discretion of the court, but such discretion will not be exercised without good cause.' 6.10 In the present case, a Notice of Appeal was filed into this Court on 20th April 2022. Following the sixty-day Rule of this Court within which to fi le Record of Appeal and Heads of Argument, the Appellant ought to have filed the Record of Appeal and Heads of Argument no later than 20th June 2022. The said documentation was not fi led into Court as required because R8 the Appellant terminated instructions of his lawyers following a disagreement between them. The Appellant subsequently re-engaged their Counsel on 17th June 2023, and Counsel made an application for extension of time within which to file the Record of Appeal and Heads of Argument on 21 st June 2022, a day after the lapse of the 60 days. Order XIII Rule 3(2) of the COA Rules provides a further 21 days period within which to bring an application for extension of time from date of lapse of time for compliance. 6.11 In casu, the Appellant brought the application for extension of time the next day after the expiry of the 60-day period within which he ought to have filed the Record of Appeal and Heads of Argument, which was well within the 21 day period allowable under Order XIII Rule 3(2). The single Judge of this Court who considered the Appellant's application declined to grant the application on 8th July 2022 as he was not satisfied that the reasons advanced by Counsel for the Appellant for not filing the requisite documents within the stipulated time frame demonstrated sufficient cause for grant of extension of time. 6.12 We have reviewed the application and note that the summons and affidavit in support of the summons to extend time filed on 21 st June 202 which are the subject of this motion have not been exhibited. However, page 21 of the Motion Record confirms the reason or basis upon which the application before a single Judge was made. This is confirmed by the single Judge's endorsement Ruling declining to grant the application on the basis that 'differences between Advocate and client do not constitute sufficient reason under Order XIII Rule 3'. R9 . . ,, 6 .13 It is apparent from the Ruling of the single Judge shown at page 21 of the Motion Record that the Appellant had no Advocate at the material time and only retained Counsel on the 17th June 2022, a period of 3 days to date of lapse of time within which to file Record of Appeal and Heads of Arguments. In our view, these lapses could on only be rectified by a quick action, which was taken by the Appellant's Advocate almost immediately she was re-engaged by the Appellant on 17th June 2022. The Application for an extension of time was brought within the timeframe allowed for bringing such an application as provided under Order XIII Rule 3(2) of the COA Rules, being on the 21 st June 2022. 6 .14 In coming to the reasons for the Appellant's application for extension of time within which to file the Record of Appeal and Heads of Argument, while we agree with the pronouncements of the single Judge of this Court that differences between an Advocate and his client do not constitute an excuse for breaches of the Rules of Court, we also opine that the non compliance with time frames was presented to the Court for rectification by way of an application for extension of time not just the day after the expiry of the 60 period for compliance, but also that the said application was brought within the 21 day period allowed for bringing such applications before Court. We find it excusable in the circumstances of this case to exercise our discretion and allow the extension oftime within which the Appellant can file the Record of Appeal and Heads of Argument as immediate steps were taken within the allowable period to rectify the non compliance with the Rules of this Court. 6. 15 That notwithstanding, we must reiterate that this Court will not take lightly, breaches of the Rules of Court by litigants and Advocates alike. We must stress that Com1s should only exercise discretion favourably to allow an RlO .. extension of time upon being satisfied that good reasons have been advanced by the Appellant. In the circumstance of this case, we are satisfied that it is just that an extension of time be granted to the Appellant as there was no inordinate delay in rectifying the breach of the Rules of Court, and that no prejudice will result to the Respondent in granting this application. 7. CONCLUSION 7 .1 The Appellant's Notice of Motion is allowed. The Order of the single Judge of 8th July 2022 is accordingly varied. The Appellant is directed to file the Record of Appeal and Heads of Argument within 30 days from date of this Ruling failure to which the appeal will stand dismissed. 7 .2 The Respondents not having responded to the application, we order that each party to bear their own costs. ----✓ M. M. Kondolo, SC COURT OF APPEAL JUDGE i l l~ F. M. Chishimba COURT OF APPEAL JUDGE N. A. Sharpe-P iri COURT OF APPEAL JUDGE R11