Francis Kuveya v Zambia Sugar Plc (Application SCZ 8/304/2004) [2006] ZMSC 46 (6 September 2006)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: APPLICATION SCZ 8/304/2004 FRANCIS KUVEYA (AS GENERAL SECRETARY Of NUPAW ON BEHALF OF EMPLOYEES OF THE RESPONDENT) AND Appellants ZAMBIA SUGAR PLC Respondent Coram: Chlrwa, Chitengi and Silomba, JJS on 22nd March 2006 and.d.. .. September 2006 For the Appellant: Mr EC Zulu, Central Chambers for the Respondent: Mr IC Ng'onga, IC Ng'onga & Co. RULING Chlrwa, JS delivered the Ruling of the Court: This is an appeal a gainst the dismissal ot the appeal following the non-compliance of the "unless Order" granted by a single judge of the Court on 15th March 2005. Briefly, the facts of the case are that the appellant took the respondent to the Industrial Relations Court, on behalf of the employees of the respondent. The appellant sued in his capacity as General Secretary of the National Union o f Plantation and Agricultural Workers on behalf of the workers/members of the Union seeking "an Order requiring the respondent to pay the accrued gratuity in the sum of K20.419,585,264.00 R2 and/or otherwise directly to the Unionised employees fndlvldually and accordlngly as due to them 11 • Thls action was unsuccessful before the Industria l Relations Court a nd the respondent appealed to the Supreme Court. The appellants did not file the record of appeal within the stipulated time o f the Rules of the Court and on 14th February 2005 the respondents applied to a single judge of the Court to have the matter dismissed for want of prosecution. The application was supported by an affidavit. At the time set for hearing of the application, the appellant had filed an application in the Court for leave to file the Record of appeal out of time and the record was in fact ready a t the time. After considering the application by the respondent and considering that there was an application by the appellant to file the record of appeal out of time, the single judge dismissed the respondent's application to have the appeal dismissed for want of prosecution and grant ed the appellants 7 days within which to file the record of appeal. However, the record was not filed within 7 days as the Registrar of the Industrial Relations Court could not peruse the l O volumes of the record before the expiry of the 7 days. The record was filed on 22nd March 2005. On 23rd March 2005, Counsel for the appellant was informed by the Supreme Court Registry staff, that he was late, the record was in fac t supposed to be fried on 2JS1 March 2005. Hence the motion filed pursuant to Rule 48( l) of the Supreme Court Rules. In arguing the appeal, both Counsel filed detailed heads of arguments and authorities. We do not wish to go through the arguments and authorities as in our view the matter hinges on the interpretation of R3 Section 35(a) of the Interpretation and General Provisions Act, Cap 2. on the computation of time. Section 35(a) reads: "35. In computing time for the purposes of any written Iow- a) a period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing Is done". In the prese nt case, the order of a single judge was issued on 151h March 2005 giving the appellants 7 days within which to file the record of appeal. Giving the 7 days and on interpretation of Section 35{a) of the Interpretation and General Provisions Act, the 7 days ended on 22nd March 2005 but the 22nd March 2005 is a day on which the act was to be done is excluded therefore 7 days ended on 23rd March 2005. From the affidavit evidence before us by Counsel for the appellant, it is clear from Paragraphs 9-11 that the record of appeal was brought for filing in the Supreme Court Registry on 22nd March 2005, the 7th day on which the order was to come to an end but this day, by virtue of Section 35(a) of the Interpretation and General Provisions Act is excluded for the purposes of counting 7 days. The Registry Staff therefore, were wrong to say that the record should have been filed on 21 s1 March 2005. It follows that the staff were wrong not to accept the record of appeal for filing. The record of appeal was brought for filing within the period allowed by a single judge. This motion is allowed, the Registry staff of the Supreme Court are ordered to accept the record of appeal as it was brought to R4 them for filing within the time allowed. We note the Counsel went into i unnecessary industry of quoting us Order 3 of Ru/es of the Supreme Court, I '1999 Edition, when our own Interpretation and General Provisions Act is clear. Costs for this motion shall be in the cause. ~ i~a JUDGE OF THE SUPREME COURT , Hi gi V JUDGE OF THE SUPREME COURT S Silomba JUDGE OF THE SUPREME COURT