Chitala v Attorney General and Anor (CAZ 8 107 of 2017) [2018] ZMCA 374 (15 January 2018)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/107/2017 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: MBITA CHITALA AND ATTORNEY GENERAL GEORGE MWAMBAZI APPELLANT 1st RESPONDENT 2nd RESPONDENT Before the Hon. Mrs. Justice J. Z. Mulongoti in Chambers on the 15th day of January, 2018. For the applicant: For the 1st respondent: For the 2nd respondent: Mr. L Chiteta Lemba of David Oliver Sakala & Co N/A Mr. V. Oputa & Ms. S. Mulomba of Theotis Mataka & Sampa Legal Practitioners Cases cited: 1. Stanbic Bank Zambia Limited v. Savenda Management Services Limited (2 016/CAZ/08/040) 2. Nahar Investment Limited v. Grindlays Bank International (Zambia) Limited (1984) Z. R. 81 (S. C.) 3. Twampane Mining Co-operative Society Limited v. E and M Storti Mining Limited (2011)ZR 67 Vol. 3 Legislation referred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 of 2016 -Rl- This is the ruling on the applicant’s application for an order for leave to extend time within which to file a record of appeal. At this stage, it is necessary to say a little about the background of the matter. The applicant commenced an action by way of petition in the High Court against the respondents. However, before the petition was heard, the respondents raised preliminary issues before the Deputy Registrar on grounds that the action was wrongly commenced and an abuse of court process. The Deputy Registrar allowed the application and dismissed the action, which prompted the applicant to lodge an appeal to a High Court Judge at Chambers. On 19th April, 2017, the High Court ruled that the action was incompetently before court and res judicata because the same issues as between the same parties had been dealt with in another matter which concluded by way of a consent order. The matter was then dismissed with leave to appeal. Discontented with the ruling of the High Court, the applicant lodged an appeal to this Court on 4th May, 2017 but failed to file the record of appeal within the stipulated time, hence the current application. The application is by summons and supporting affidavit made pursuant to Order XIII rule 3 sub-rule (2) of the Court of Appeal Rules (CAR). The affidavit is sworn by the applicant, Mbita Chitala. The applicant deposed that an application was made to the Assistant Registrar of the High Court on 8th May, 2017 for a copy of the notes of the proceedings in the High Court evidenced by the letter marked “MC3” exhibited in the affidavit. However, he only received the proceedings in late August, 2017. This made it difficult for him to prepare the voluminous record of appeal which was in excess of 450 pages. He further deponed that the respondents will not -R2- be prejudiced, if the application is granted. On the other hand, that he will suffer irreparable injury if leave is not granted. The 2nd respondent, George Mwambazi, opposed the application by swearing an affidavit in opposition. He deposed that the applicant has failed to show sufficient reason for this Court to grant the application. He points out that the Notice of Appeal was filed on 4th May, 2017 and the record of appeal should have been filed sometime in July, 2017. Further, that the applicant has failed to show proof that the notes of the proceedings were only availed to him in late August. In any event, the applicant only made the application three months after the notes of the proceedings were availed to him. The application was only served on the 2nd respondent on 28th November, 2017, less than two clear days, before the hearing. The reasons for the delay are neither sufficient nor plausible and shows that the applicant is not serious about prosecuting the appeal. The 1st respondent did not respond to the application. At the hearing, the applicant was represented by Mr. Lemba while the 2nd respondent was represented by Ms. Oputa and Ms. Mulomba. There was no appearance on behalf of the 1st respondent. The applicant’s counsel relied on the affidavit in support. He submitted that the notes of the proceedings were prepared very late by which time the applicant ran of time to file the record of appeal. The 2nd respondent’s counsel relied on the affidavit in opposition and submitted that order XIII rule 3 CAR is very clear that the application can -R3- only be granted for sufficient reason. She argued that the applicant has not shown willingness to prosecute the appeal because the notes of the proceedings were availed in August but the applicant only made the application to extend time on 20th October, 2017. In reply, the applicant’s counsel submitted that the applicant could not file the record of appeal because part of the delay was caused by other procedural requirements of the Court. I have considered the affidavit evidence and the submissions by counsel. I note that the summons for this application states that the application is for leave to file application for extension of time to file record of appeal pursuant to Order XIII rule (3) 2 CAR. According to Order X rule 6 CAR, the applicant is required to file the record of appeal within sixty days from the time the Notice of Appeal is lodged subject to any extensions provided under Order XIII. In the event that the sixty day period lapses without the record being filed, the applicant can apply to file it out of time within twenty one days from the date the sixty day period lapsed under Order XIII rule 3 sub-rule (2) CAR. After the twenty one day period lapses, the applicant can then proceed to apply for extension of time under Order XIII rule 3 sub-rule (3) CAR, which is what the applicant ought to have done in the present case as the sixty days lapsed on or about 5th July, 2017 then the twenty one days lapsed on or about 26th July, 2017. After that, Order XIII rule 3 sub-rule 3 was the appropriate order to apply for extension. Order XIII rule 3 sub-rule (3) of the Court of Appeal Rules provides that: "The Court may for sufficient reason extend time for making an application, including an application for leave to appeal, or for bringing -R4- an appeal, or for taking any step in or in connection with any appeal, despite the time limited having expired, and whether the time limited for that purpose was so limited by the order of the Court, by these Rules, or by any written law. ” It is clear from the wording of this rule that this Court is clothed with jurisdiction to exercise discretion to extend time within which the applicant can file the record of appeal. However, as per the majority ruling of this Court in Stanbic Bank Zambia Limited v. Savenda Management Services Limited1, it is entirely in the discretion of the Court to grant or refuse an extension of time but the discretion must be exercised judiciously and on proper principles of law. In Nahar Investment Limited v. Grindlays Bank International (Zambia) Limited2, the Supreme Court had this to say regarding extension of time- “We wish to remind appellants that it is their duty to lodge records of appeal within the period allowed, including any extended period. If difficulties are encountered which are beyond their means to control (such as the non-availability of the notes of proceedings which it is the responsibility of the High Court to furnish), appellants have a duty to make prompt application to the court for enlargement of time. Litigation must come to an end and it is highly undesirable that respondents should be kept in suspense because of dilatory conduct on the part of appellants. Indeed, as a general rule, appellants who sit back until there is an application to dismiss their appeal, before making their own frantic application for an extension, do so at their own peril. If the delay has been inordinate or if in the circumstances of and individual case, it appears that the delay appeal has resulted in the respondent being -R5- unfairly prejudiced in the enjoyment of any judgment in his favour, or in any other manner, the dilatory appellant can expect the appeal to be dismissed for want of prosecution, notwithstanding that he has a valid and otherwise perfectly acceptable explanation. ” According to the affidavit in support of the present application, the applicant made a request for the notes of the proceedings on 8th May, 2017. This means that the applicant was aware that the proceedings were unavailable from that date. After seeing that there was delay with the notes of the proceedings, the applicant ought to have been vigilant and taken steps to secure its interest by applying for extension of time as held in the Nahar Investment case. The applicant fell into laxity by sitting and doing nothing about it after that. His own affidavit in support states that the notes of the proceedings were availed in late August, 2017 but he sat back and only filed the application for extension of time on 20th October, 2017, almost two months after he was availed the notes. This gives the impression that he is not desirous to prosecute the appeal as argued by Ms. Oputa. The applicant should have been vigilant to take steps to ensure that the record of appeal is ready in order for him to prosecute the appeal. I am of the considered view, therefore, that the applicant has not furnished sufficient reason to compel me to exercise discretion in favour of granting the application to extend time. I am fortified by the decision of the Supreme Court in Twampane Mining Co-operative Society Limited v. E and M Storti Mining Limited3 in which the Court emphasised the need for adherence to the rules of procedure so that matters are heard in an orderly and expeditious manner and that those who choose to ignore the rules will do so at their own peril. -R6- Accordingly, the application is dismissed with costs to the 2nd respondent to be taxed, failing agreement. Delivered at Lusaka this 15th day of January, 2018. J. Z. Mulongotl Court of Appeal Judge -R7-