Katemba Kahyata v ZM & P (B.V.I) Holdings Limited (CAZ/08/489/2021) [2022] ZMCA 156 (1 March 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/08/489/2021 BETWEEN: KATEMBA KAHYATA AND ZM & P (B. V. I) HOLDINGS LIMITED 1st Respondent JOSEPH KHORIATY 2nd Respondent Coram: Hon. Lady Justice N. A Sharpe-Phiri in Chambers on 1st March 2022 For the Appellant: Mr. G. Chombo of Messrs Chombo & Partners For the Respondents: Mr. M. G. Numbwa of Messrs Kitwe Chambers RULING Legislation referred to: Court of Appeal Rules, Statutory Instrument No. 65 of 2016. This is an application brought by the Applicant on 11 th February 2022 for an order for extension of time within which to file an application to vary or set aside the decision of the single Judge. The application was brought by way of summons and made pursuant to the provisions of Order 13 Rule 3(1) of the Court of Appeal Rules. Rl An affidavit in support was deposed to by Counsel for the Appellant, Gerald Chombo. He contended that on 26th January 2022, this Cou1i sitting as a single Judge of the Court of Appeal delivered a Ruling denying an application for leave to appeal against the decision of the High Court judgment of 6th December 2021 . He contends that the Appellant is desirous of renewing the application before the full Court. The Rules of this Court require a renewed application to be brought within 14 days from the date of the Ruling of a single Judge complained of. He further averred that in the present case, their application ought to have been brought by 9th February 2022. He explained however that they were not able to file the application within the prescribed time due to inadvertency on their part. Nonetheless, all the other documents for the record were ready for filing except for the typed record of proceedings which he had requested for through the Master of this Court on 7th February 2022. The said letter of request was exhibited in his affidavit marked as exhibit GC 1. He went on to depose that despite following up with this Court, he was made to wait a bit longer. Meanwhile, he has run out of time within which to file the renewed application for leave to appeal before the full bench of this Court. The application came up for hearing on 22nd February 2022 and both Counsel for the Applicant and for the Respondents were present. R2 In support of the application, Counsel for the Applicant, Mr. Chombo relied on the affidavit in support and skeleton arguments filed on 11 th February 2022. Although Mr. Numbwa, acting on behalf of the Respondents intimated that he did not object to the application, he sought an order for costs of the application as the Applicant had taken a laxed approach towards filing the necessary application. Counsel highlighted that the Applicant's Counsel had only applied for copies of the proceedings two days prior to the expiry of the time within which the application for leave to appeal ought to have been brought. The Court reserved its Ruling which I now render herein. I have carefully considered the evidence and arguments of the parties. The issue for my consideration is whether to allow an application for leave to file an application to vary or set aside the decision of the single Judge. The application has been brought pursuant to the provisions of Order 13 Rule 3(1) of the Court of Appeal Rules which provides that: 'The Court 111,ay, 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 connection with the appeal. ' R3 To safeguard the ends of justice, the foregoing provision affords the Court, after considering all circumstances, an opportunity to invoke its discretion, for just and sufficient cause, and to extend time within which an application connected to an appeal may be brought. The question therefore is whether the Applicant has demonstrated just and sufficient cause to warrant the exercise of the Court's discretion to extend the time for the Applicant to file an application to vary or set aside the decision of the single Judge made on 26th January 2022. The Applicant's Counsel argued that the failure to undertake the needful was inadvertence on his part. The Respondent's Counsel drew attention to the lackadaisical approach of Counsel for the Applicant particularly that he conceded that he took no steps to arrange through the office of the Master of this Court, that the record of proceedings before the Judge were typed out in good time. It was only two days before the expiration of the period within which an application should have been made that Counsel approached the Court for a copy of the proceedings. Yet, the timeframe was insufficient to enable the Master of the Cou1i provide Counsel with the requisite documentation to enable him to file his application in good time. Therefore, the renewed application was not filed within the stipulated period and no prior application for an extension of time was sought before the period expired. R4 Order 10 Rule 2(1) of the Court of Appeal Rules requires that an application is made within 12 days from the date the decision complained of. The Courts have pronounced on numerous occasions that the Rules exist to serve the ends of justice and are not mere cosmetic decorations which must be applied casually. Therefore, when the Applicant's Counsel realized that he would not be able to file his application on 7th February 2022, he ought to have expeditiously brought an application for the enlargement of time within which to bring at application before expiration of the prescribed period. The Courts have previously pronounced that the Rules exist to serve the ends of justice and are not mere cosmetic decorations which must be applied casually. Further, they have enunciated that where Counsel fails to comply with the Rules of Court, they do so at their own peril. In the circumstances of this case, I agree with Counsel for the Respondent that the Applicant have taken a casual approach in ensuring compliance with the Rules of this Court. The Applicant has failed to demonstrate that there are just and sufficient reasons to extend the time within which to file an application to vary or set aside the decision of this Court. RS For the said reason, I find that the application is without merit, and I dismiss it accordingly with costs to the Respondent. Dated at Lusaka this 1st March 2022. ~ rp e -Ph i ; f Court of Appeal Judge R6