Jimmy Kalenga and Anor v Stanbic Bank Zambia Limited (NOM/003/2019) [2019] ZMCA 399 (26 February 2019)

IN THE COURT OF APPEAL OF ZAMBIA NOM/003/2019 Rl HOLDEN AT NDOLA (Civil ,Juri.sdicUon ) BETWEEN: JIMMY KALUNGA --..~..---• .. .,jt°j I , ., o , , ; , ; A -~/::~·'> .. . ·1: . } - _, / ·1st APPELLANT [ ~ q ..... ~ ,QEG,; 7 ; .• - 7, LUSJ); KALUMBE ENTERPRISE LIMIT. ED 2 n d APPELLANT AND STANBIC BANK ZAMBIA LIMITED RESPONDENT CORAM: MAKUNGU, SICH ,INGA, NGULUBE. JJA On.: 20th February and 26th February, 2019 For the is1 and 2 nd Appellants: C. Magubbwi, Messrs Magubbwi and Associates. For the Respondent: A. Chileshe, Messrs Mambwe, Siwila, and Lisimba Advocates RULING NGULUBE, JA, deliv,ered the Ruling or the Court C ases r ef er.red t ,o: 1. Racheal Lungu Saka v Hildah Bwalya Chomba (Sued as Administratrix of the Estate of the late Jean M. Chombo) NOM 001I2018 2. John Sangwa and Another v Hotellier Limited and Another (2014) ZMSC 7 3. Attorney General, Development Bank of Zambia v Gershom Moses Burton Mumba (2006) ZR 77 4. Chrisma Hotel v Stanbic Bank Plc (2017) ZMSC 20. 5. D. E Nkhuwa v Lusaka Tyre Services Limited (1977) ZR 43 R2 6. Twampane Mining Corporative Limited v E and M Storti Mining Limited (2011) ZR67 7. Zambia Y:elecommunications Limited v lreen Simate and 54 others SCZ/ 08/ 005/ 2018 Legisl:atio'n referred to: 1. The Court of Appeal Rules) Statutory Instrument No. 65 of 2016. 2. The Court of Appeal Act, No 7 of 2016 This is the appellants' application for leave to file an application for leave to appeal to the Supreme Court out of time. The background of this matter is that on 26 th November, 2018, this Court delivered a Judgment in favour of the respondent by upholding the Judgment of the lower Court that the appellants must pay the sum of US $ 500,004.32, with interest at 13% per annum from 14th July 2014, within 60 days of the Judgment. We also held that in default, the respondent would be at liberty to foreclose on the mortgaged properties, namely, Plot No.9, Stand No .. 8097, :Sub-division 04 Subdivision Y4 of Farm No. 748 Ndola and Lot 13135/M Masaiti and exercise its power of sale of the properties. The l st appellant averred in the Affidavit in Support of the application that he and the 2 nd appellant are dissatisfied with the Judgment of this Court based on the reasons exhibited in the intended Memorandum of R3 Appeal, and that they are desirous of appealing to the Supreme Court. U was averred that the appellants believe that the appeal has merit with a very high likelihood of sucoess and prayed that this Court grants the parties leave to appeal. The appellants did not give reasons for the delay in lodging the application for leave to appeal in the 1st appellant's affidavit. However, reasons were advanced in the affidavit that was sworn by Counsel, Mr. Magubbwi which unfortunately was not commissioned and therefore, we wiU not consider it. In the skeleton arguments 1n support of this application, it was submitted that the Judgment of this Court of 26t h November, 2018 neither gave nor refused leave to appeal to the Supreme Court and thus it remained for the appellants to apply tor such leave within 14 days of the Judgment. That the appellants delayed to do so and therefore defaulted in seeking this Court's leave to appeal to the Supreme Court within the prescribed time frame. It was further submitted that, by the said delay the gates of appeal are not shut as the Court of Appeal Rules under Order 13 Rule 3 provide that: R4 "The Court ,may, for sufficient reason extend the time for .making an appUca'tion, includi11sg an .application/or leave to appeal, bringing an appeal; or taking any step in or in connection with an appeal.,, We were referred to our ruling in the case of Racheal Lungu Saka v Hildah Bwalya Chomba (Su•ed as Administratrix of the Estate of the late Jean M .. Chombo) 1 in which it was submitted that we guided that once the prescribed time has expired, a party should, before filing an application to file process out of time first seek leave of the court. It was contended that in this regard, the application as presented before this Court is competent at law and should be considered. [n further support of their apphcation, the case of John Sangwa and Another v ·Hotellier Limited and Another2 was cited. In this case the Supreme Court stated that: ''Looking at the facts ,of this case, ,we agree that this is a prop.er case where th.e p .ri,nciples enunciated by the case of Stanley Mwam.bazi vs .. Morester Farms which has be\en ,alluded to by Co·unsel for t.he appellants should ha:ve been ,appHed ........ indeed, the ,appellants cannot be s .aid to be guilty of unreasonable delay, malafides or improper ,conduct ... " RS It was contended that in this cause, it can not be said that there has been inordinate and unreasonable delay in lodging the application, malafides or improper conduct on the part of the appellants. On the second leg of the application, it was argued that the intended appeal as demonstrated by the affidavit in support of the application and by the memorandum of appeal has merit and thus its prospects of success a re high. Relating to the ground of appeal challenging the 13% interest awarded on the Judgment sum, the case of Attorney General, Development Bank of Zambia v Gershom Moses Bu·rton Mumba3 was cited. In this case it was held that: "As we have said in several cases interest on foreign currency is generally low. In this case we award the plaintiff interest on the dollar component of the damages at 3%from the date of Notice of Complaint until final payment:". Further, in relation to the ground of appeal challenging the Court's endorsement of the High Court's view that the leases were restructured albeit in the absence of any written restructuring agreements, it was argued that any other perceived evidence contrary to what is provided for under the lease agreement that was deemed by the Court to have constituted a restructuring agreement offends the parole evidence rule R6 or the position that extrinsic evidence is not admissible to alter that which is in a written agreement. In support of this , we were referred to the case of Chrisma Hotel v Stanbic Bank Plc4 In summation, it was submitted that it is trite that under a mortgage action subject of a written deed, one cannot recover more than is covered under the mortgage. That the above granted, the appellants' meet the qualifications under Order 13 rule 3(3) of the Court of Appeal Rules and should the ref ore be granted leave as prayed. In opposing the application, the respondent submitted in its skeleton arguments that the reasons given in the affidavit of one Chimuka Magubbwi for not seeking leave to appeal within the prescribed time are not sufficient and are unequivocally unconvincing. It was contended that the advocate for the appellants has indicated in his affidavit that he took instructions from the client on or about 4 th December 2018, meaning he had six more days to file an application for leave to appeal but neglected, failed or ignored to do so. In the alternative, it was submitted that the advocate for the appellants should have filed an application for extension of time within which to file the application for leave to appeal before the expiry of the 14 days' R7 time frame. It was contended that the default in filing an application for leave to appeal in time is unjustifiable. It was further contended that the case of D. E Nkhuwa v Lusaka Tyre Services Limited5 is good authority on what other aspects the Court ought to take into account when exercising the discretion whether or not to grant an application to appeal out of time. We were referred to the case of Twampane Mining Corporative Limited v E and M Storti Mining Limited6 in which the Supreme Court considered the length of the delay and concluded that 39 days was too long a period of delay. In relation to this, it was submitted that the appellants filed the Notice for leave to appeal out of time on 17th January, 2019, 53 days after the date of Judgment which cannot be accepted. The respondent went on to submit that the appellants' have not met the threshold of Section 13 (3) of the Court of Appeal Act which provides that: "(3) The Court may grant leave to appeal where it considers that (a) the appeal raises a point of law of public importance; {c) the appeal would have a reasonable prospect of success; or R8 (d) there is some other compelling reason for the appeal to be heard." In relation to the above cited section, it was submitted that contrary to the assertions by the appellants that the intended appeal raises or contains fundamental legal points or questions of public importance to be determined by the Supreme Court, this matter is all about a private debt contracted by a private individual which is bereft of public interest or importance. Additionally, it was submitted that the intended appeal does not have reasonable prospects of success as the grounds of appeal are misconceived, and without merit. From the submissions made by the respondent, it is clear that Counsel who prepared the same did not notice that the appellants' second affidavit was not commissioned. At the hearing, Counsel for the appellants indicated that he places full reliance on the documents contained in the Notice of Motion, and added that the second affidavit in support of the Notice of Motion was filed into Court upon noticing that the one that was contained in the bundle of the Notice of Motion was not commissioned. He called on this Court to note that from page 34 to 35 of the Notice of Motion there is R9 an application for partial stay of the . Judgment which application we granted at the end of the hearing pending delivery of this ruling. Counsel urged us to take into consideration the recent case of Zambia Telecom m unicati,ons Limited v Ireen Simate and. 54 othe rs 7 • He submitted that the gist of the S im ate Case7 is that at this stage in the proceedings and on application of this nature, the Court should burden itself only with consideration of the reasons why leave is being sought to file an application for leave to appeal out of time and not why a party intends to appeal. The Court should also consider, whether there will be any prejudice that maybe suf.fered by both parties. In reply, Mr. Chileshe opposed the application and stated that he places full reliance of the respondent's skeleton arguments filed into Court on 7th February, 2019. We have seriously considered this application, the affidavit in support, skeleton arguments and oral submissions. The question before us for determination is whether the reasons advanced by the appellants are sufficient for this Court to exercise its powers contained in Order 13 Rule 3 as reproduced above. We agree with Counsel for the appellants' that at this stage all we should be concerned with is whether sufficient RlO reasons for the delay in filing the summons for leave to appeal have been advanced to enable us allow the appellants to file a notice of appeal out of time. Bot h parties in their skeleton arguments did to a great extent submit on the merits or demerits of the intended appeal. For instance, the thrust of the appellants' affidavit in support of their application was the merits of the appeal rather than the reasons for the delay in filing an application to for leave to appeal to the Supreme Court. In the case of Zambia Telecommun:icat:ions Limited (supra) Malila JS observed as follows: ''Every application before ,a c ,ourt should be anchored on a weU-,define,d basis as we observed in Lapemba Trading Hmited v Femba Lapidaries, Industrial Credit Co, the requirements which ought to be satisfied before any ,appltc,ation is granted wiH differ from application to appUcation. Thus, for example, a .n application to set aside a d~faul't judgment should disclose a defence on the merit. An application for :leave to appe1al ·re,quires that applicant shows ,prospects of success ,~J the intended appeal. In the case of an app,eal fro ,m ,a decision of the court of appeal, one of the cir,cumstances listed ·in section 13 as I had quoted it above should be demonstrate,d. An application for Rll extension of tim,e will re,quire the app:lication. to disclose a pl,au sible reaso.n for t he de lay and why more time is required ,. ·Th e Court w ill consider p rospects of injustice, t he l,e ng't.h of t he delay and t h e de,gre,.e of prejudice if any t o t he other p arty . . Each ,application ought to be determined using a diffierre nt set of considerations. " Order 13 (3) of the Court of Appeal Rules empowers this Court for sufficient reasons to extend the ti.me for making an application, i.ncluding an application for leave to appeal; bringing an appeal; or taking any step in or in connection with an appeal. In this case, no reasons were advanced for the appellants' failure to file an application for leave to appeal to the Supreme Court within the prescribed time. We wish to point out that the circumstances which were obtaining in the Racheal Lungu Saka case can be distinguished from the circumstances of this case. In that case an Order extending the time within which to appeal was granted which was not complied with. Our RuHng in that case was that the reasons advanced for failing to comply with the Court Order were not sufficient and lacked merit. Therefore, Counsel's reference to the case :Rache al Lun gu Saka is misplaced. • R12 Further, we do not see prospects of an appeal succeeding. For the going reasons, we have no option but to dismiss the application as it lacks merit. Consequently, the stay of execution granted to the appellants on 20 th February, 2019 is forthwith discharged. We order that the appellants bear the costs which are to be taxed if not agreed upon . ............. ~ ........ . C. K.· . MAKUNOlJ COURT OF APPEAL JUDGE . • • • • • • • • • • • • • ~ ••• • C-••••••••• i ........... . D. L . SICH NGA COURT OF APP AL JUDGE. . . . . . ft.w. Lk ..... P. C. M NGULUBE COURT OF APPEAL JUDGE.