Mindeco Small Minning Ltd v Sichone (SCZ 8 197 of 2006) [2009] ZMSC 3 (13 May 2009)

C I ('L I S~94 IN THE SUPREME COURT OF ZAMBIA SCZ/8/ 197/2006 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: MINDECO SMALL MINING LTD APPELLANT AND DERRICK SICHONE RESPONDENT Coram: (cid:9) Mambilima DCJ, Chitengi, Silomba, JJS On 16th July 2008 and 13th May, 2009. For the Appellant: (cid:9) Mr. J. Chashi of Messrs Mweemba Chashi and Company For Respondent: (cid:9) In Person JUDGMENT Chitengi, JS, delivered the Judgment of the court. The facts of this Notice of Motion can be briefly stated. On 26th July 2006 the Appellant filed Notice of Appeal in the Supreme Court but for reasons which it is not necessary to state, the Appellant did not file the record of appeal within the stipulated 60 days. On 19th January 2007 the Appellant filed a wrong application to extent time within which to file record of appeal. The application was heard on 14th February 2007 and dismissed because the learned Single Judge was of the view, and pi] (cid:9) (cid:9) I quite rightly so, that the application was misconceived as the time the Appellant sought to extend had already expired. On 3rd April 2007 the Appellant filed the correct application for leave to file record of appeal out of time. On 12th June 2007 the learned Single Judge heard the second application and dismissed it on the ground that having dismissed the first application he was now functus officio. However, the learned Single Judge made it clear in his ruling that the second application was the correct application which the Appellant should have brought in the first place Mr. Chanshi, learned Counsel for the Appellant, filed written heads of argument and addressed us orally. The Respondent made no submissions but merely said he was objecting because the Appellant delayed to bring the appeal. The nub of Mr. Chashi's submissions is that the learned Single Judge having found that the two applications were different, the learned single Judge should not have declared himself functus officio. Mr. Chanshi then made references to Rule 12 of the Supreme Court Rules Cap 25 of the Laws of Zambia pursuant to which the application was brought. But in the view we take of this Notice of Motion it is not necessary for [J2] S S the determination of this Notice of Motion, to go into the niceties of Rule 12. As the learned Single Judge rightly observed the two applications were different and they were differently couched. The first application, was to extend time within which to file record of appeal. The second application was to file record of appeal out of time. Although the two applications sought the same remedy, the learned trial Judge never ruled on the second application and cannot, therefore, he said to be functus officio. The learned trial Judge should have granted the leave to file record of appeal out of time. In the result, we grant the Appellant leave to file records of time out of time. The record of appeal should he filed within 21 days from the date of this Judgment. Cost in the cause. I. C. MAMBILIMA DEPUTY CHIEF JUSTICE PETER CHtcNGI (cid:9) SUPREME COURT JUDGE (cid:9) S. S. SILOMBA SUPREME COURT JUDGE [J3] w