Mohammed Omar (Sued in his capacity as Administrator of the estate of late Abbdul Kadar Omar) v Marvin Motors and Transport Limited (NOM/48/2018) [2019] ZMCA 401 (7 March 2019)

IN THE COURT OF APPEAL OF ZAMBIA NOM/ 48/ 2018 Rl HOLDEN AT LUSAKA {Civil Jurisdiction} BETWEEN. . ~~ico~- / ✓~..:.. OURT~h . r' APr.•~-1/c? MOHAMMED OMAR {Sued in his(c . ~ city_f~ Administrator of the estate of late A , "'l aaar '&fn'd[µ.)l PLICANT AND MARVIN MOTORS AND TRANSPORT LIMITED RESPONDENT CORAM: MAKUNGU, SI CHIN GA, NGULUBE. JJA On: 6 th February and 7 th March, 201'9 .. For the Applicant: Mr. H. Kabwe, Messrs Hobday Kabwe and Company. For the Respondent: Mr. M. Munansangu, Messrs Munansangu and Company. RULING NGULUBE, JA, delivered the Ruling of the Court. Cases referred to: 1. Savenda Management Services v Stanbic Bank Zambia Limited Selected Judgment No 10 of 2018. Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016. 2. The Court of Appeal Act, No 7 of 2016. 3. The Supreme Court Practice, White Book 1999 Edition. Rl This is an application for leave to appeal to the Supreme Court against the Ruling of this Court dated 1 1th October 2018. The back ground of this matter is that on 31 st March, 2017, the applicant lodged an appeal before this Court by filing a Notice of Appeal. He had sixty (60) days from that date in which to file the record of appeal and heads of argument, which period expired on 30th May, 2017. The applicant did not apply for enlargement of time before the expiry of the sixty (60) days neither did he do so in the further 21 days provided for by the law, notwithstanding that he was running out of time. Instead, on 20 th July, 2017, outside the 60 days period he applied to stay execution of the lower Court''s Judgment on assessment and also applied to consolidate another matter founded on the same facts. Both applications were granted in favour of the applicant. After this, over 90 days passed without the applicant talcing any further step to prosecute his appeal. The respondent then moved the Court to dismiss the appeal for want of prosecution. On 13th March, 2018, a single Judge dismissed the applicant's appeal for want of prosecution. The applicant then filed a motion to vary, discharge, or reverse the Ruling of a single Judge. Before the motion could be heard, R3 on 26th September 2018, the respondent sought leave before the Court to raise a preliminary issue. Leave was granted and the preliminary issue raised on the point of law was that a renewed application against a ruling of a single . Judge in chambers should be filed within 14 days of such a Ruling. After considering the preliminary issue and arguments by Counsel and after taking into consideration the Rules of this Court, the Court came to the conclusion that the respondent's application had merit and dismissed the application on the point of law that a renewed application that was determined by a single Judge ought to be filed within 14 days of such Ruling. Dissatisfied with the Ruling., Counsel, on behalf of the applicant has made this application. According to the affidavit in support, the correct interpretation of the overall provisions regulating the rehearing of an application by the full Court does not clearly stipulate that 14 days is the applicable time limit. Additionally, that the intended appeal raises a point of law of public importance on the time limit applicable to the rehearing of applications by the full Court from a single Judge . R 4 The respondent filed into Court an affidavit in opposition on 5 th December, 2018 which was sworn by Darius Muchindu Hampango. He averred that the gist of the application to dismiss the appeal for irregularity was on the ground that the applicant should have filed into Court his Notice of Motion within 14 days and not that the motion should have been heard within that time. It was further averred that the renewed application was filed 52 days after Sichinga, JA had delivered his Ruling to dismiss the matter for want of prosecution. There is no issue of public importance raised by the applicant as the basis of the appeal is misconstrued and only intended to further prejudice the respondent from enjoying the fruits of the Judgment. At the hearing, Counsel for the applicant indicated that he would place full reliance on the documents contained in the Notice of Motion, save to add that his understanding of the provisions of Order 10 Rule 1 is that the same applies to appeals from the High Court or quasi-judicial bodies and not appeals from a single Judge of the Court. In opposing the application, Mr. Munansangu equally placed reliance on the documents filed in opposition to this application. RS We have carefully examined all documents filed, arguments by Counsel as well as both Rulings of this Court. The application before us is for leave to appeal to the Supreme Court against the Ruling of this Court dated 11 th October, 2018. Section 13 (3) of the Court of Appeal Act provides that: "The Court may grant leave to appe,al where it considers that- a) The appeal raises a point of law ofpublic importance; c) the appeal would have a reasonable pr,ospe,ct of success; ,or d) there is some other compelling reason for the appeal to be heard." The Supreme Court in the case of Savend.a Management Services v Stanbic Bank Zambia Limited 1 gave guidelines on what this Court should take into consideration when handling an application for leave to appeal, thus- "The permissible grounds for the grant of l,e,ave to appeal in civil matters are set out in section 1 .3 ,(3) (a) (c) (d). These are where: the appeal raises a point of law •Of public importance; the appeal would have a re,asonable R6 prospect of success; or there ar·e some compelling reasons for the appeal to be heard. The rationale for the foregoing is an acknowledgement of the fact that the resources of the courts are over stretched and if it were otherwise, the doors to justice would be open to busy bodies whose only aim is to delay the inevitable execution of a judgment. We· are of the firm view that this court should only be· open to a litigant who has moved the Court of Appeal and met the threshold set out in section 13 (3)." We are of the firm view that the respondent in raising the preliminary issue before the full Court wanted the Court to pronounce itself on the time frame for renewing an application determined by a single Judge in civil matters in the Court of Appeal. Unlike in civil matters, in criminal matters, the Rules of the Court of Appeal are clear on the time frame within which to appeal to the full Court against a Ruling of single Judge . Order 7 Rule 8 provides that- (8) When an appellant is notified that the application referred to, in subn.tle (7) has been refused, the appellant R.7 wishing1 the appli.ca,tion to be h.ea.rd by the full Court shall lodge with th.e· Master,, within fourteen days of receipt of that notification, a notice· requesting the application to be heard by the: Ju ll Court. On the other hand, Order 10 Rule 8 which provides for renewal of applications determined by a single Jlldge to the full Court provides as follows- "A, person who is aggri.eve·d by a de:cision of a sing l.e judge a .nd who intends to, have such deci.sion varied, discharged or reversed by the Court under section 9(b) of the Act shall, before the date of hearing of th.e application by the Court, file th.ree extra copies of the p ·roce·edings, including copies of the affidavits: filed by th.e other party prior to the sing le ju.dg;e's: decision, for the use of th.e Court." This provision does not indica te the time frame within which the application shou]d be made to the full Court. Clearly there is a lacuna. Section 8 of the Court of Appea] Act empowers us to refer to the white book in situations like this. Section 8 provides as follows: R8 "8. ( 1) The jurisdiction vested in the Court shall, as regards pra.ctice and procedure, be exercised in the manner provided by this Act and the ru.les. (2) Despite subsection (1), where this Act or the rules do not provide for a particular point of practice or procedure, the practice of the Court shall be- (a) in relation to civil matters, in accordance with the Suprem.e Court Practice, 1999 (White Book) of England and the law and pra.ctice in the Court of Appeal in England in force up to 31st December, 1999;" Order 59 Rule 14 Sub Rule 41 of the White Book provides for appeals from a single Lord Justice to the full Court as fallows- "An appeal to the Full Court against a decision of a single Lord Justice (where such appeal lies as of right) is by a fresh application made within 10 days of the sing le Lord Justice's determination. The application must be made on summons on which a fee will be payable ...... The 10-day period runs from the date on which the sing le Lord Justice gave his decision and the application by R9 way of appeal to the Full Court must be set down within that l 0-day period." Given the forgoing, we are certain that this appeal raises a legal issue of general public importance in that the public or litigants generally are keen to know the applicable time frame within which an application determined by a single Judge can be renewed. For this reason, leave to appeal to the Supreme Court is hereby granted and costs to be in the cause. C. K. MAKUNG COURT OF APPEAL JUDGE. - . . . . . . . . . . . . . . . . . . . .......... . COURT OF APPE L JUDGE. P. C. M NGULUBE COURT OF APPEAL JUDGE.