Ikanuke Mutanekelwa Noyoo v Luck One Enterprises and Property Limited (CAZ/08/539/2022) [2022] ZMCA 158 (30 December 2022)

IN THE COURT OF APPEAL FOR ZAMBIA AT THE LUSAKA DISTRICT REGISTRY HOLDEN AT LUSAKA ( Civil Jurisdiction) BETWEEN: IKANUKE MUTANEKELWA NOY CAZ/08/ 539 /2022 LUCK ONE ENTERPRISES AND PROPERTY LIMITED ~.......,....;~· ndent ELIWIN HAMOOGA & 27 OTHERS Interested parties Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 30 December 2022 For The Appellant: For The Respondent: Mrs M. Mhango Messrs Ganje Mhango & Company N/A RULING Legislation referred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 of 2016 This is a ruling on two a pplications brought by the Applicant on 12th December 2022. The applicant filed composite ex-parte summons for leave to appeal part judgment out of time and stay execution of Judgment dated 2 nd September 2022. In support of the application, the appellant filed an affidavit sworn by himself in which he contends that on 2 nd September 2022, the Rl High Court delivered a judgment in the contempt matter wherein he was found not guilty of contempt. That however, the Court went further and altered a decision of another High Court Judge , thereby varying a decision of another Court action. Being dissatisfied with the judgment dated 2 n d September 2022 by the lower Court, he was desirous of appealing the judgment in part in the Court of Appeal. That however, before that right could be exercised, he was advised by counsel that he ought to seek leave of the High Court to appeal and once the said leave was granted, only then could he proceed to appeal to this Court. That he did file an application for leave to appeal and stay execution of part judgment in the High Court on 4 th October 2022. That the matter was scheduled to be heard on 28th October 2022, that however, when the matter was scheduled for hearing of the application, he was advised by counsel on record that the Assistant Registrar P. Malipilo had issued a notice that all matters scheduled for hearing from 26th to 28th October 2022 were not going to take place as the Judges of the High Court were attending a workshop and that new dates would be issued. That to his surprise, the matter proceeded on the same day in the absence of my counsel and was dismissed by the High Court Judge on the same 28th October 2022 when the matter should have been adjourned as per the Notice. R2 The appellant further contended that an appeal in this matter has realistic prospects of success based on the proposed grounds of appeal. The proposed grounds of appeal are as follows: 1. The learned Judge in the Court below misdirected himself in law and fact when he adjudged that the Alleged Contemnor shall calculate and communicate the amount of interest payable in accordance with the terms of the Law Association of Zambia Contract and Conditions of Sale due from the Defendant under the judgment on admission of 31 August 2018 within 30 (thirty) days ignoring the clear terms of the said judgment particularly paragraph 1 of the judgment on admission and the ruling of 26 November 2018. 2 . The learned Judge in the Court below misdirected himself in law and fact when he ordered that the Defendant shall pay the said interest within 60 days thereafter. In default the alleged contemnor shall be at liberty to invoke the terms of the judgment on admission ignoring the terms of the said judgment particularly paragraph 1 of the judgment on admission and the ruling of 26 November 2018. That from the reading of the said Memorandum of Appeal, it was clear that the learned Judge upon dealing with the question before Court R3 which was whether he was in contempt of court, departed and went further to decide on matters that were already adjudicated upon in a judgment on admission dated 31 st August 2018 and a ruling by Judge William Mweemba dated 26th November 2018. The appellant contended that the intended appeal has merit for the following reasons: 1. All High Court Judges have equal powers and authority and therefore one High Court Judge cannot adjudicate on matters already adjudicated upon and determined by another High Court Judge as one High Court Judge cannot be seen to overrule another as there is only one High Court as a principle of law. 11. The learned Judge should not have imported other issues that were already adjudicated upon as the only question before the Court was whether the plaintiff (applicant herein) and alleged contemnor therein was in contempt or not, a question which was answered on favor of the plaintiff. Further, that the appeal is meritorious and has very high realistic prospects of success and was not merely one with hope of success. That based on the foregoing, it was necessary that pending the determination of the application for leave to appeal, the execution of the judgment be stayed until this Court determines the matter. R4 The matter came up for ex-parte hearing on 29 December 2022. Counsel for the applicant, Mrs Nkunika of Messrs Ganje Mhango and Company, relied on the documents filed in support of the application before me. Ruling was reserved and I hereby render the same. I have carefully considered the affidavit evidence, particularly the history of proceedings leading up to the Judgment intended to be appealed. The brief facts on record reveal that judgment on Admission was granted in favour of the applicant dated 31 st August 2018 in a matter presided over by learned High Court Judge W. S. Mweemba. Subsequently, a later High Court Judgment of 2 nd September 2022 which acquitted the applicant of contempt charges was issued and is now subject of the intended appeal. The subsequent decision went further to extend the time within which compliance to the terms of the earlier Judgment on Admission could be complied with. The presiding Court under the second Judgment was learned High Court Judge B. C. Mbewe. After delivery of the Judgment of 2 n d September 2022, the applicant took out summons for leave to appeal and stay of execution of the same on 4 October 2022. The Court declined to grant both the application to stay and the leave to appeal in a ruling of 28 October 2022. Notably, this application for leave to appeal was brought out of time but the summons was not endorsed to seek leave to appeal out of time. RS Order X Rule 3 (5) of the Court of Appeal Rules provide that: "The notice of appeal and memorandum of appeal shall be entitled in the proceedings from which it is intended to appeal and shall be filed with the Registrar within thirty days after the Judgment appealed against." The applicant was required to file the initial application for leave to appeal and stay of execution of Judgment within 30 days after the judgment of 2 nd September 2022, which period would have ended on 2 nd October 2022. However, the applicant filed a mere application for leave to appeal and stay execution of Judgment on the 4 October 2022. Order XIII Rule 3 ( 1) of the Court of Appeal Rules provides as follows : '3( 1) The Court may, for sufficient reason extend the time for- (a) making an application, including an application for leave to appeal; (b) bringing an appeal; or (c) taking any step in or in connection with an appeal. R6 The import of the foregoing provision is that this Court is empowered to exercise wide discretion regarding granting of leave and time within which an appeal can be filed . Order XIII Rule 3 ( 1) of the Court of Appeal Rules does not provide for precise circumstances when such discretion maybe exercised outside the time for filing an appeal, save to state that such power may be exercised for sufficient reason. The question that then begs an answer is whether this court should grant an order in favour of the applicant for leave to file appeal against Judgment of 2 n d September and stay of execution of same. To consider an application for leave out of time, the applicant seeking leave ought to provide sufficient and satisfactory reasons as to why the application was not brought within the time prescribed for doing so. Counsel for the applicant initially indicated that they were not aware of the hearing of the matter as they were informed that the Judge would be attending a conference. There was no explanation as to why an application was not brought earlier after the lower Court declined the application on 28th October 2022. Given the foregoing account of facts, namely that the initial application for leave to appeal was irregularly filed out of time as a mere leave application, it is immaterial that the applicant now seeks to assign reasons of facts that unfolded at the High Court between R7 the 26 and 28 October 2022 as the reason for the delay in his filing of application before Court. Further, the application for leave to appeal out of time has been brought to this Court on 12th December 2022, approximately 100 days after the decision complained of and over 45 days from the date that the lower Court declined to grant leave to appeal. There are no convincing reasons advanced by the applicant's counsel in this matter. The applicant has clearly been slacking in the pursuit of the appeal and has failed to comply with the Rules of this Court as to the timeframe prescribed. The Courts have stated time immemorial that parties who fail to comply with the rules of Court do so at their own peril. Further, I find that the application before me has no merit on the face of the in tended grounds of appeal given the prima facie facts of the history of the matter. There is thus no basis for the application for leave to appeal out of time to succeed. Given that the application for leave to appeal out of time is unsuccessful, it follows that the application for a stay also fails and I dismiss both applications accordingly. I make no order as to costs given that this was an ex-parte application. Dated at Lusaka this 30 December 2022. ~ ~ ~ N. A. Sharpe-Piri COURT OF APPEAL JUDGE RS