Gilbert Kombe Temba v Robert K. Chimambo (NOM/68/2020) [2021] ZMCA 297 (30 March 2021)

IN THE COURT OF APPEAL OF ZAMBIA N'OM/68/2020 HOLDEN AT LUSAKA (Civil Jurisdiction) / BETWEEN: ~ \C~ __ .:~~- ~ i : f,l'F'f-_At /c, r- ~1 ~ . 3 o ~~R 202~ , ,~ · . \S1 R' GILBERT KOMBE TEMBA AND ROBERT K. CHIMAMBO APPLICANT RESPONDENT CORAM: MULONGOTI, NGULUBE AND SIAVWAPA, JJA On 19th January and 30th March 2021 FOR THE APPLICANT: MRS. N. MUTAMBO OF MESSRS FRASER AND ASSOCIATES FOR THE RESPONDENT: MR. D. K. KASOTE OF CHIFUMU BANDA AND ASSOCIATES RULING SIAVWAPA, JA, delivered the Ruling of the Court. Cases Referred to: 1. D. E Nkhuwa v Lusaka Tyre Services Limited (1977) Z. R 59 2. Investment Bank PLC v Build it Hardware Limited and Youssuf Essa Appeal No 3 of 2013 3. Nahar Investment Limited v Grindlays Bank International (Zambia) Limited (1984) Z. R. 11 Legis,l,atio,n ,refe.r.red to: 1. Court of Appeal Act No 7 of 2016 2. Court of Appeal Rules, 2016 3. Constitution as amended by Act No. 2 of 2016 1.0 INTRODUCTION l.1 This Notice of Motion is filed pursuant to Order X Rule 2(8) of t he Court of Appeal Rul,.es as read with Section 9(b) of the Court of Appe al Act . l .2 The AppeHant seeks to have us reverse the ruling of Honorable Mr. Justice D. L. Y Sichinga sitting as a single Judge, wherein the Appellant's application for leave to file an application for extension of time was declined. 2.0 HISTORY 2.1 The Appellant filed a memorandum and notice to appeal on 21 st November, 2019. The Appellant was unable to file the record of appeal and heads of argument within the 60 days stipulated by law. He £urther failed to apply for extension of t ime within this period and the 21 days that followed. 2 .2 The Appellant applied for leave to file an application for extension of time on 15th June 2020 and stated that the record was not file d because he was unable to give instructions to his advocates. The reason given for the failure to issue R2 instructions is that the appeal fell over the Christmas vacation and soon after this vacation the Appellant was in and out of the country as he travelled to South Africa to attend to an ill relative. 2.3 The learned single . Judge found that the Appellant had failed to explain his failure to file an application for extension after the expiry of 60 days and the further period of 21 days and that the period of 6 months was an inordinate delay. 2.4 The Appellant now seeks a reversal of the learned single Judge's ruling on the ground that he did not exercise his jurisdiction judicially and that he did not clearly examine the Appellant's passport when he found that the period of 60 days was not accounted for and thus inordinate. 2.5 In the motion before us, the AppeHant has added that after he returned from South Africa on 15th March 2020, he was required to be in quarantine for a period of 14days. 2.6 The crux of the Appellant's argument in support of the motion, is that, if circumstances prevail which make it impossible or even extremely difficult for parties to take procedural steps or where there is good cause, the Court will grant an extension. The cases of D. E Nkhuwa v Lusaka ·Tyre Services Limited11I R3 and Jnv1estment Bank PLC v Build it Hardware Limited and Anot.her<2l were cited in this respect. 2.7 It is argued that the Appellant could only give sufficient instructions to his advocates afiter he left quarantine on 29 th March, 2020 to 1st June, 2020 when his advocates office became fully operational. Further, that, since there was a directive for institutions to follow ministry of health guidelines between the period of April and June to effect a lockdown, this is good cause that should have been considered. 2 .8 Article l 18(2)(e) of the Constitution of Zambia is cited to the effect that Justice shall not be administered without undue regard to procedural technicalities. It is argued that the refusal to grant the instant application hinders the determination of the appeal in a just .manner as it relates to a technicality. 3.0 OUR VIEW 3.1 We have considered the record, affidavit in support, exhibits and arguments. 3.2 The Appellant took 6 months and 25 days to file an application to extend time. This is an inordinate delay. What remains to be considered is whether there is a good reason for this delay. R4 3.3 In the case of Nahar Investment Limited v Gr.indlays Bank International Zambia Limited131 the Supreme Court said: "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... appellants have a duty to make prompt application to the Court for enlarge.ment of time." 3.4 This means that parties should promptly apply for extension before the prescribed time within which to take an action lapses. Our scrutiny of the record reveals that the Appellant had time to extend the time within which to lodge the record of appeal. The dates on the passport exhibited as 'GKTl ' show that the Appellant travelled back and forth but neglected to do so. We do not accept the excuse that the Applicant had no way of communicating with counsel. 3.5 We are therefore inclined to agree with the learned single Judge that the inordinate delay by the Appellant has not been adequately accounted for. In fact, the events herein should have prompted the Appellant to enlarge time before the 60 days elapsed. RS 3.6. Consequently, the notice of motion is denied with costs to the Respondent. J. Z. MULONG TI COURT OF APPEAL .... ~ .~ ······ ............ . P. C. M. NGUL UBE COURT OF APPEAL J UDGE ................. 1 ................ . M. J. SIAVWAPA COURT OF APPEAL JUDGE R6