Kayelu Ngonga v Patricia Musakanya (2013/HP/0377) [2019] ZMHC 35 (9 August 2019)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2013/HP/0377 BETWEEN: KAYELU NGONGA LAINTIFF AND PATRICIA MUSAKANYA DEFENDANT BEFORE THE HONOURABLE MRS. JUSTICE M. C. KOMBE For the Plaintiff For the Defendant Ms. N. Nambao - Messrs Mulungushi Chambers. Mr. N. Chanda - Messrs Nicholas Chanda ·& Associates RULING Cases referred to: 1. Bellamano v . Ligure Lombarda Limited (1976) Z. R 328 2. D. E Nkhuwa v. Lusaka Tyre Services Limited (1977) Z. R 43. 3. Stanbic Zambia Limited v. Savenda Management Services (2016) CAZ/08/040. 4. Twampane Mining Co-operative Society Limited v. E and M Storti Mining Limited (2011) 3. Z. R. 67. 5. Palata Investments Limited and others v. Burt & Sinfield Limited and others (1985) ALL E. R. 517. Legislation and other material referred to: 1. The High Court Act, Chapter 27 of the Laws of Zambia. 2. The Court of Appeal Rules, Act No. 65 of 2016. 3. The Rules of the Supreme Court, 1999 Edition (White Book). This ruling relates to the Defendant's application filed before this Court on 11th April, 2019 for leave to appeal out of time. The summons do not disclose the provisions of the law pursuant to which the application is made but it is supported by an affidavit deposed to by PATRICIA MUSAKANYA the Defendant. In the affidavit, the Defendant explained that after this Court delivered its judgment on 12th December, 2018, the Plaintiff took possession of the house in issue ; that possession h appened without her knowledge as the Plaintiffs lawyer, Mr. Simbao from Mulungushi Chambers hid the judgment from her until the day the possession took place. That as a result of this, she was unable to appeal on time, hence the application before this Court to appeal out of time . The Plaintiff filed an affidavit in opposition on 5th July, 2019 which he deposed to. He explained that the Defendant was served with a bill of costs which was prepared in default of agreement long after -R2- the judgment was delivered. A copy of the covering letter dated 28 th February, 2019 was marked "KNl". He further explained that the Plaintiff had at a great cost executed the judgment and obtained possession of his plot; that the Defendant was evicted on or before the 18th March, 2019 and by letter dated 4 th April, 2019 the Defendant was given a proposal on how they should proceed with the matter. A copy of the said letter was exhibited and marked "KN4". The Plaintiff also deposed that the Defendant then appointed new advocates on 11 th April, 2019 and that no grounds of appeal had been furnished . The Defendant filed an affidavit in reply in which she admitted that the bill of costs was served on her. However, the same was surpassed by the follow-up application filed by the Plaintiff and as such, it had to follow the event at the end of the proceedings. She further deposed that there were some underhand method in the manner the execution was carried out on the ground and that despite the judgment being delivered on 13th March, 2019, the Plaintiff hid the said judgment and waited for the expiration of 30 days. That this -R3- did not leave room for the Defendant to take action as the judgment and writ of possession were served on the same day, hence the delay. At the hearing of the application, learned counsel for the Defendant, Mr N. Chanda relied on the affidavits filed into Court. Learned counsel for the Plaintiff Ms. N. Nambao equally relied on the affidavit in opposition, in particular, paragraph 8. She also relied on Order 10 rule 4(3) of the Court of Appeal Rules which provides that an appeal to the High Court or any quasi- judicial body shall be by motion or summons and shall state the grounds of the application and shall if necessary be supported by an affidavit. That the Defendant did not exhibit the intended memorandum of appeal containing the grounds in both affidavits. In this regard, she prayed that the Defendant's application be dismissed. In reply, Mr. Chanda submitted that the Defendant had fully complied with Order 10 rule 4(3) as she had opted to file summons for leave to appeal out of time. He also submitted that it was too early to file the grounds of appeal because what they were asking for was leave; that it was only after leave was granted that they could file the grounds of appeal. -R4- Those were the submissions by the parties which I have carefully considered. By this application, the Defendant seeks leave to appeal out of time against the judgment of this Court dated 12th December, 2018. Before I proceed to consider this application, I wish to address certain issues which I have observed regarding the application. First1y, the record shows that the Defendant filed two (2) similar applications for leave to appeal out of time albeit on different dates. The first one was filed on 11th April, 2019 while the second one was filed on 18th April, 2019. Both applications are supported by affidavits. However, the record has revealed that the second affidavit dated 18th April, 2019 was filed without leave of the Court contrary to rules of procedure in interlocutory applications. In this regard, it is improperly before this Court and therefore I have not considered it. Secondly, as I have already alluded to, the Defendant has not made reference to the provision of the law pursuant to which this application is made. -RS- It is trite law that civil procedure rules are enacted to govern th e methods and practices used in civil litigation. To this end, Section 44 (1) (a) of the High Court Act provides that Rules of the court may be made: 'For regulating and prescribing the procedure (including the method and pleading) and the practice to be followed in the court in all causes and matters ... ' In this regard, adherence to the rules is important. This is clear from the guidance given by the Supreme Court of Zambia in the case of Bellamano v. Ligure Lombarda Limitedl 1l in which it stated that: 'It is always necessary on making of applications for the summons or notice of application to contain a reference to the Order or Rule number or other authority under which the relief is sought.' Given the foregoing, it is evident that the Defendant has not complied with the procedural rules as indicated above. This is an irregularity. However, I am alive to the provisions of Order 2 rule 2 of the High Court Rules which gives this Court the power to extend the time fixed for taking any step. Since the power to extend time exists and its exercise can be traced to a legitimate source, I will in the interest of justice deem it that the application has been made pursuant to this provision as the irregularity is curable. -R6- I now proceed to consider the application for leave to appeal out of time. It is not in dispute that the Defendant did not comply with the statutory period within which to appeal after this Court delivered its judgment on 12th December, 2018. This is the basis for this application before this Court. It is trite law that the granting of an extension of time within which to appeal out of time is entirely in th e d iscretion of th e Court but that discretion will not be exercised in favour of the applicant without good cause. This principle was elucidated by the Supreme Court in the case of D. E Nkhuwa v. Lusaka Tyre Services (2 l . The Supreme Court went on further to state that: "In addition to the circumstances of the delay and the reasons therefore which provide the material on which the Court may exercise its discretion, another most important factor is the length of the delay itself." The Court of Appeal also re-echoed this principle in the case of Stanbic Zambia Limited v. Savenda Management Services (3 l when it stated that: "In determining an application for extension of time w ithin which to appe al, the Court will have regard to t he circumstances of the delay, the reasons of the delay and the length of the delay. Further, it will in -R7- certain instances look at the merits of the proposed appeal.' These case authorities show that what provides the material on which the court may exercise its discretion is the circumstances and :reasons for the delay and the length of the delay. The court may in certain instances also consider the ch ances of th e appeal succeeding if t ime for appealing is extended. I shall therefore consider these factors in order to determine wheth er this is a proper case in which I can exercise my discretion and grant leave to appeal out of time. (i) The length of the delay and the reasons for the delay This Court delivered its judgment on 12 December, 2018 and granted leave to the Defendant to appeal. However, the Defendant only filed the summons for leave to appeal out of time into Court on 11 th April, 2019. Therefore about four (4) months or 89 days elapsed before the Defendant finally applied for leave to appeal out of time. I do not r egard this period of delay as short, it is inordinate. I am fortified by the Supr em e Court case of Twampane Mining Co operative Society Limited v. E and M Storti Mining 141 in which it -R8- considered the length of the delay and concluded that thirty-nine (39) days was too long a period. In addition, even after the Defendant's advocates were served the bill of costs, on 28th February, 2019, there was a delay of about forty-two (42) days before the application was filed. There are no reasons that have been advanced why there was such a delay. In terms of the reasons for the delay, the Defendant contends that the Plaintiffs counsel hid the judgment from her and thus she was not aware that judgment had been delivered. It is not clear to the Court why the Defendant has put the blame on the Plaintiffs advocates because the record shows that throughout the p roceedings, she did not appear in person but was legally represented by counsel from National Legal Aid Clinic for Women (NLACW). And where a party is legally represented, court process is served on the advocates on record. In any event the Defendant has admitted in her affidavit in reply that the bill of costs was served on her. According to exhibit "KNl" in the Plaintiffs affidavit in opposition, the said bill was served on 28th February, 2019 the Defendant's advocates. -R9- Therefore, I cannot bring myself to think th at even as at 28th February, 2019 the Defendant was not aware that judgment had been delivered because the Plaintiff could only have sent a bill of costs if the judgment had been delivered. I therefore find the reasons for th e delay advanced by the Plaintiff to be vague and in excusable. For the reasons I have h ighlighted above, I find that th e delay of four (4) months, that is (102) days is definitely inordin ate and the excuse unacceptable to this Court considering the circumstances of this case . (ii) The chances of the appeal succeeding if time for appealing is extended. In the case of Twampane Mining, the Supreme Court explained the underlying principle why the Court has to consider the chances of the appeal succeeding if the time for appealing is extended. It stated that: 'Further, Order 59 / 4 / 1 7 of the Rules of the Supreme Court allows the Court to look into the merits of the appeal when considering an application for extension of time and we find no contradiction in the fact that -RlO- the learned judge granted leave to appeal and also later considered the merits of the appeal and found none. By its default, the appellant opened its case for further scrutiny and lost any advantage that was due to it initially.' (Underlining mine for emphasis only). Furthermore, the English case of Palata Investments Limited and others v. Burt & Sinfield Limited and others 15 ) a persuasive authority makes the same point as the court stated that: 'No doubt in some cases it may be material to have regard to the merits of the appeal because it may be wrong and indeed an unkindness to the appellant himself to extend his time for appealing after he has allowed the time to elapse to enable him pursue a hopeless appeal.' It is clear from the authorities above that where an applicant fails to make his application promptly, the court is entitled to look into the merits of the appeal as it would be unkind and may be wrong to enlarge time within which to appeal only to enable him pursue a hopeless appeal. Counsel for the Plaintiff has argued that the Defendant has not indicated the grounds of appeal in her affidavits. On the other hand, counsel for the Defendant contends that it is not necessary at this -Rll- stage to indicate the grounds of appeal as what the Defendant seeks is leave to appeal out of time. This argument by counsel for the Defendant is misconceived as the above authorities clearly show that this Court is entitled to look at the merits of the appeal when considering this application for leave to appeal out of time. This is because by the Defendant's default to appeal within the prescribed period, she has opened her case for further scrutiny. Therefore by not indicating the grounds of appeal, it means that the Defendant has not availed any material to show that there are prospects that the appeal will succeed. In sum, I find that the Defendant has failed to provide sufficient material on which I can exercise m y discretion to grant leave to appeal out of time. The application is accordingly dismissed with costs to the Plaintiff. Leave to appeal is granted. DELIVERED IN LUSAKA THIS 9 th DAY OF AUGUST, 2019 ............ ~ ~····· M. C. KOMBE JUDGE -R12-