Luck One Enterprise and Properties Limited v Ikanuke Mutankeelwa Nayoo (CAZ/08/309/2018) [2019] ZMCA 379 (11 July 2019)

Rl 8/309/2018 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: -- Gtst·- LUCK ONE ENTERPRISE & PROPERTIES LI LLLANT AND IKANUKE MUTANKEELWA NAYOO RESPONDENT Before the Hon. Mrs. Justice P. C. M Ngulube in Chambers For the Appellant: No appearance For the Respondent: Mr. N. K R. Sambo, Messrs Sambo, Kayukwa & Company RULING Cases referred t o: - 1. Access Bank (Zambia) Limited V Group Five/ ZCON Business Park Joint Venture [2016] SCZ 24 2. Naher Inves tments Limited V Grindlays Bank Limited (1984) ZR 81 Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 This is the Respondent's application for an order to dismiss appeal for want of prosecution pursuant to Order 10 Rule 7 of the Court of Appeal Ru les 1 . The brief background of this application is that, on 9 th R2 August 2018, the Commercial Division of the High Court entered a Judgment on admission in favour of the respondent herein. Following this, the appellant applied to the court below to allow him make good of the Judgment sum in instalments which application was denied. Being dissatisfied by the said Ruling, the appellant caused to be filed a Notice and Memorandum of Appeal on 11 th December, 2018 against the Ruling of the High Court Commercial Division delivered on 26th November, 2018. After so doing, the appellant failed or neglected to file the record of appeal and heads of argument. The application is accompanied by an affidavit in support sworn by Ikanuke Mutankeelwa Noyoo the respondent herein. He avers that after filing the notice of appeal and memorandum of appeal, the appellant did apply and obtained an ex-parte order for stay of execution of the Ruling of the court below, which Order is set to be reviewed by an inter-parte h earing on a date yet to be set by the court. He avers that the appellant is not interested in prosecuting the appeal and merely wants to frustrate the respondent by not paying him the money that it owes him as balance from the sale of his property. He further avers that the appellant has been using surreptitious R3 methods to stop the Judgment of the lower court which was obtained on the admission of the appellant. He avers that the default in filing the appeal is deliberate, an abuse of the court process and intended to deprive the respondent of property which the respondent has taken possession of and alienated by way pf sale to other persons. No affidavit in opposition was filed and neither was the appellant in attendance at the hearing. At the hearing, Mr. Sambo relied on the affidavit in support of the application. He submitted that the appellant should have filed the appeal within sixty days after filing the notice of appeal. He further submitted that as the record may indicate, the notice of appeal and memorandum of appeal were filed on 11 th December 2018 which is 168 days from that time. That the record shows that there has been no application for extension of time on the part of the appellant and that it may be presumed that the appellant does not intend to prosecute the appeal. Counsel asked the court to dismiss the appeal and prayed for costs. R4 I have considered the application before m e as well as the affidavit evidence. It is clear that no record of appeal and heads of argument have been filed . Further it is also not in despite that the appellant in light of the delay in filing the record of appeal, has not made any attempt to apply for an extension of time within which to file the record of appeal and heads of argument out of time. Order X Rule 6 of the Court of Appeal Rules 1 provides that: Subject to an extension of time and to an order made under Order XIII rule 3, the appellant shall, within Sixty days after filing a notice of appeal (a) Lodge the appeal by filing in the Registry twenty hard copies of the record of appeal together with heads of argument and an electronic copy of the record of appeal Further, Order X Rule 7 of the Court of Appeal Rules 1 provides that- If an appeal is not lodged within the time stipulated under rule 6, the respondent may make an application to the court for an order dismissing the appeal for want of prosecution, or RS alternative, for such other order with regard to the appeal as the respondent may require. In the case of Access Bank (Zambia) Limited V Group Five/ ZCON Business Park Joint Venture 1 the Supreme Court held that "Rules of procedure and timeliness serve to make the process of adjudication fair, just, certain and even handed. Under the guise of doing justice through hearing matters on their merits courts cannot aid in the bending or circumventing of these rules and shifting goal posts, for while laxity in application of the rules may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules" In the case of Naher Investment Limited V Grindlays Bank Limited1 the Supreme Court held that- "Appellants who sit back until there is an application to dismiss their appeal before making their own application for extension of time, do so at their own peril." R6 The appellant having not filed the record of appeal and heads of argument on time and further having not made an application to extend time within wh ich to file th e record of appeal and h eads of argument, slept on their rights, allowing the respondent to file an application to dismiss the appeal. The effect of so doing has been well articulated by the Supreme Court in the above cited authorities. The appellant's appeal is accordingly dismissed for want of prosecu tion. costs are awarded to the respondent, to be taxed in default of agreement. Dated this 11 t h day of July, 2019. HONOURABLE MRS JUSTICE P. C. M NGULUBE COURT OF APPEAL JUDGE.