Milan Gordic v Josphael Mbizule and Ors (CAZ/08/163/2018) [2019] ZMCA 370 (11 July 2019)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/O8/ 163/2018 Rl HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: MILAN GORDIC AND JOSPHAEL MBIZULE 1st RESPONDENT ASPHALT ROADS ZAMBIA LIMITED 2 nd RESPONDENT ATTORNEY GENERAL 3 rd RESPONDENT Before the Hon. Mrs. Justice P. C. M Ngulube in Chambers For the Appellant: No appearance For the 1st and 2 nd Respondent: Mr. M. Chileshe, Messrs Silwamba Jalasi and For the 3 rd Respondent: Mr. C Mulonda Senior State Advocate, Attorney Linyama Legal Practitioners General's Chambers RULING Cases referred to: - 1. Naher Inves tments Limited V Grindlays Bank Limited (1984) ZR 81 Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrume nt No. 65 of 2016 This is the 1st and 2 nd Respondents' a pplication for an order to dismiss appeal for want of prosecution pursuant to Order 10 Rule 6 R2 and 7 of the Court of Appeal Rules 1 • The brief background leading up to this application is that, the appellant caused to be filed a Notice and Memorandum of Appeal on 9 th July, 2018 against the Ruling of the Court below delivered on 25th June, 2018. After so doing, the appellant failed or neglected to file his record of appeal and heads of argument and has further failed or neglected to appear before court for the hearing of this application despite attempts by the respondent to serve him with court process. Owing to this, the 1st and 2nd respondents were forced to file summons to dismiss appeal for want of prosecution on 5 th June, 2019. The application is supported by an affidavit sworn by one Josphael Mbizule the 2 n d respondent herein. He avers that the appellant is obliged to file the record of appeal and heads of arguments within sixty days of filing the notice of appeal. He avers that on 14th February, 2019 the 1st and 2 nd respondent caused ~o be conducted at the Court of Appeal of Zambia registry, a search on this matter which revealed that the appellant had not filed the record of appeal and heads of argument and that a computation R3 of time indicates that the statutory sixty days period 1n which a record of appeal should be filed has expired. The deponent avers that the appellant is not desirous of prosecuting the purported appeal as the searches further revealed that the appellants did not file an application to extend time to lodge the record of appeal and heads of argument nor did they file an application to file the same out of time. No affidavit in opposition was filed and neither was the appellant in attendance at the hearing. At the hearing, Mr. Chileshe, Counsel for the 1st and 2 nd respondent informed the Court that the appellant was duly served with the notice of hearing. He relied on the contents of the affidavit filed in support of this application. He prayed that this matter be dismissed for want of prosecution and also prayed for costs. Mr. Mulonda, Counsel for the 3 rd respondent simply adopted the 1st and 2 nd respondents' arguments. I have considered the application before me as well as the supporting affidavit. It is not in dispute that the appeHan t is yet to file the record R4 of appeal and heads of argument. 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. Ord.er X R.ule 7· of the Court of Ap,peial Rules 1 provides that- If an appeal is not lodged within. the time stipulated under rule 6,, the respondent may mak.e an appUcation to the court for an order dism.issing tbe appeal for want of prosecution, or alternativ·e,, for such other order with regard. to the appeal as the respondent may require·. In the case of Na.her In.ves.tm.ent Limited V Grindlays Bank. Limited1 the Supreme Court held that- "Ap,p,ella.nts who sit back until th.ere is an application to dismiss th.eir ap,p1eal before ma.king their· own application for extension o,f time, do so at their own peril. i,, The appellant having not taken any steps in prosecuting t his matter after he filed the notice of appeal,. he slept on his rights allowing the respondents to file an application to dismiss the appeal. The effect of RS so doing has been well articulated by the Supreme Court in the above cited case. The appellant's appeal is accordingly dismissed for want of prosecution with costs to be taxed in default of agreement. Dated this 11th day of July, 2019. HONOURABLE MRS JUSTICE P. C. M NGULUBE COURT OF APPEAL JUDGE. •