Joseph Moyo v Stanbic Bank Zambia Limited (CAZ/8/209/2019) [2020] ZMCA 233 (10 January 2020)

~ Rl IN THE COURT OF APPEAL OF ZAMBIA CAZ/8/ 209/2019 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: JOSEPH MOYO AND APPELLANT STANBIC BANK ZAMBIA LIMITED RESPONDENT Before The Honourable Mrs. Justice P. C. M. Ngulube in Chambers. For the Appellant: L. Kabaso, Messrs KBF & Partners. For the Respondent: A. J. Shonga Stare Counsel, N. Ng'andu, Messrs Shamwana & Company. RULING Cases referred to: 1. Zamtel v Irene Simate & others SCZ/ 8/ 005/ 2018 2. Access Bank (Zambia) Limited V Group Five/ ZCON Business Park Joint Venture3 [2016) ZMSC 24 3 . Nahar Investment Limited v Grindlays Bank International (Zambia) Limited (1984) ZR 81 4. Simeza Sangwa and Associates and 4 others v O 'dys Works Limited, SCZ/ 8/ 402/ 2012 5. Stanley Mwambazi v Morester Farms Limited (1977) ZR 108 Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No 65 of 2016 R2 1.0. INTRODUCTION 1. 1. This is the appellant's application for leave to file an application for extension of time within which to file the record of appeal and heads of argument pursuant to Order 13 Rule 3 (3) of the Court of Appeal Rules 1 . 2.0. BRIEF BACKGROUND 2.1. A brief background of the matter is that the appellant being dissatisfied with the ruling of the lower court, filed a notice of appeal and memorandum of appeal before this court on 11 th July, 2019. For reasons beyond the appellant's control, he has been unable to filed the record of appeal and heads of argument within the mandatory stipulated time frame of sixty (60) days. 3.0. MAIN APPLICATION 3.1. In the affida vit in support sworn by Major Isaac Masonga (Rtd) , Counsel in conduct of the matter, he averred that the court below delivered its ruling against the appellant on 28th June, 2019 and granted leave to appeal. That the appellant being dissatisfied with the said ruling proceeded to file a notice of appeal and memorandum of appeal before this court on 11 th June, 2019. 3 .2. He avers that on 16th July , 2019 , the appellant made an application for an order to stay execution of the ruling of the lower R3 court pending determination of the appeal and that considering the fact that the Judge hearing the matter is based in Lusaka, the case record had to be moved from Livingstone District Registry to Lusaka for the said application to stay execution of the court's ruling to be attended by the Judge at Lusaka. 3 .3. He averred that the case record was only returned to the District Registry at Livingstone in the first week of October, 2019 upon the Judge's return to hear other matters under the task force constituted by the Chief Justice. The deponent averred that this exercise caused the court proceedings not to be typed by the High Court staff on time and that for the foregoing reasons, the appellant is now out of time within which to file the record of appeal and heads of argument as well as an application for extension of time. 3.4. It was averred that the Court proceedings are now ready and that the record of appeal is ready to be filed. The deponent averred that the delay was neither deliberate nor inordinate and as such an extension of time will not prejudice the respondents in any material way. R4 3 .5. The respondent did not file any affidavit in opposition or skeleton arguments. 3.6. At the hearing, Mr. Kabaso, on behalf of the appellant relied on the affidavit in support which I have already considered above. 3.7. On behalf of the respondent, Mr. Shonga, State Counsel, opposed the application and submitted that the record of appeal was to be filed no later that 10th September, 2019 and that the provisions of Order 13 rule 3 subrule 2 of the Court of Appeal Rules demands that an application for extension of time be made within twenty one (21) days of the date that the record in case should have been filed. He conceded that the rules of this Court do allow an applicant to obtain leave from court to file an application out of time. 3.8. He submitted that the appellant has only given reasons which speak to the delay of filing the record of appeal but has not given any reasons why he delayed making an application for extension of time within which to file the record of appeal and heads of argument. 3. 9. In support of his argument, State Counsel referred this Court the case of Zamtel v Irene Simate & others1 where the Supreme RS Court stated that the court should, in determining such applications focus on assessing reasons for the delay in making the application. It was submitted that the case of Access Bank (Zambia) Limited V Group Five/ ZCON Business Park Joint Venture2 is instructive. State Counsel urged this Court to dismiss this application as the appellant has not furnished any reasons for the delay in filing an application for extension of time within to file the record of appeal and heads of argument 3.10. In reply, Mr. Kabaso submitted that the appellant has taken steps to atone for the default on their part and that the respondent has not made any application to dismiss the appeal for want of prosecution. He submitted that there is no prejudice which has been occasioned to the respondents save for the costs for the day of hearing. 4.0. MYVIEW 4.1. I have considered the application before me, the supporting affidavit, and submissions by both Counsel. Indeed Order 13 Rule 3 of the Court of Appeal Rules empowers this Court on sufficient reason to extend time for making an application, including an application for leave to appeal, or for bringing an appeal, or for R6 taking any steps to or in connection with any appeal, despite the tim e limited having expired. 4 . 2. In the case of N ahar Investment Limited v Grindlays Bank International (Zambia) Limited1 the appellants failed to lodge the record of appeal within the stipulated time frame, including the application for extended periods. A single Judge dismissed the appeal for want of prosecution. The appellant appealed to the full bench. "The full bench held that appellants who sit back until there is an application to dismiss their appeal before maki ng their own application for extension of time, do so at their own peril. In the event of i nordinate delay or unfair prejudice to a respondent, the appellant can expect the appeal to be d ismissed." 4.3. It is not in dispute that the appellant is out of time and that he waited for the sixty (60) day mandatory period within which to file the record of appeal to lapse before making an application for extension of time within which to file the record of appeal as well as heads of argument. It is also not in dispute that the High Court's record of proceedings took long to be typed because of the circumstances which were obtaining. R7 4. 4. In the case of Simeza Sangwa and Associates and 4 others v O'dys Works Limited2 the Supreme Court held that; "the court shall have power on sufficient reason to extend time for making any application/or leave to appeal or bring an appeal or taking any steps with any appeal notwithstanding that the time limited may have expired, and whether the time was so limited by the rules of a court or by any written law". 4.5. In the case of Stanley Mwambazi v Morester Farms Limited3 it was held that; 1. It is the practice in dealing with bona fide inter-locutory applications for courts to allow triable issues to come to trial despite the default of the parties; where a party is in default, he may be ordered to pay costs, but it is not in the interests of justice to deny him the right to have his case heard. 11. For this favourable treatment to be afforded there must be no unreasonable delay, no mala fides and no improper conduct on the action on the part of the applicant. 4.6. It is indeed trite law that for the court's discretion to be exercised, R8 there must be justifiable reasons and no unreasonable delay as well as absence of improper conduct on the part of the applicant. The appellant has stated that he has taken necessary steps to atone the default on their part. Given that the delay in the preparation of the record of appeal was not the appellant's doing and the fact that there is no application before this cour t by the respondent to dismiss appeal for want of prosecution, I will exercise my discretion and grant the appellant leave to file an application for extension of time within which to file the record of appeal and heads of argument by fourteen (14) days with costs to the respondent. Dated this the 10th day of January, 2020. HONOURABLE MRS JUSTICE P. C. M NGULUBE COURT OF APPEAL JUDGE.