Morgan Naik v Amadeus International Limited (CAZ/8/ 188/ 2020) [2022] ZMCA 161 (21 October 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) CAZ/8/ 188/ 2020 BETWEEN: MORGAN NAIK AND AMADEUS INTERNATIONAL LIMITED Respondent Appellant Coram: Hon. Lady Justice N. A Sharpe-Phiri in Chambers on 21st October 2022 For the Appellant: In person For the Respondent: Ms. N. Alikipo of Messrs Simeza Sangwa & Associates RULING Legislation ref erred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 of2 016 The respondent brought an application before this Court on 6 th September 2022 seeking an order for extension of time within which to file a preliminary objection in relation to the appeal before the Court. The summons was supported by an affidavit sworn by Nkhumbwizya Alikipo , an advocate of the Superior Court seized with conduct of the matter on behalf of the respondent. In the said affidavit, Counsel confirms that the respondent was served with the record of appeal and heads of argument on 25th July 2022 , but upon perusing the grounds contained therein, they recognized the need to raise a preliminary objection to the appeal. However, they were unable to raise the preliminary objection within the prescribed fourteen days of receipt of the appeal, as they had not received instructions from the client. That therefore they beseech the indulgence of the Court to allow an extension of time within which to file the notice to raise the preliminary objection. The deponent contends that the delay in filing of the said objection was not meant to show any form of disrespect to the Court. The appellant filed an affidavit in opposition on 8 t h October 2022 sworn by himself in which he opposed the respondent's application on the ground that the respondent was served with notice of appeal and memorandum of appeal on 1s t June 2022 and therefore the respondent's Advocates had ample time to obtain instructions from the from the respondent. The appellant also contends that the preliminary issue the respondent seeks to raise is one on points of law which fell within the knowledge of the deponent of the respondent's affidavit and hence the failure to file said preliminary issue within the allowable time cannot be attribute to the failure to obtain instructions from the respondent. The appellant further advanced in a modern world of technology, it would only take a few minutes for the respondent's advocate to obtain instructions from the respondent adding that the respondent has equally not disclosed when the said instructions where allegedly sought and when they were obtained. The appellant further contended that the delay in raising a preliminary issue was too inordinate for the nature of instructions alleged to be sought to warrant the consideration of this Court. He further contended that if any defect lies in any of the grounds of appeal as intended to be challenged in the said preliminary issue, the same is curable and this Court has jurisdiction to order amendment of the same. The appellant also filed arguments opposing the respondent's application for extension of time in which he repeated his earlier sentiments. He argued further that the time provided for taking steps must be strictly adhered to and any litigant who ignored such timeframe did so at their own peril. He cited the case of D. E. Nkuwa v Lusaka Tyre Services Limited in which the Supreme Court affirmed the said principle, and other authorities stressing the importance of adherence to stipulated timeframes in the Courts. In reply, the respondent argued that the Court had jurisdiction to extend time for raising a preliminary issue as provided for under Order 13 Rule 3(3) of the Court of Appeal Rules. The respondent also submitted that contrary to the submission by the appellant, in the D. E. Nkuwa case, justification was given by the Court for granting an extension of time in deserving cases when in held that 'relief will be given where the Court is satisfied that circumstances demand it'. The application was heard on 7 th September 2022 and the parties agreed that the Court could proceeded to render a ruling on the basis of documents filed before it by the parties. I have carefully considered the application before the Court, the evidence in the affidavits, the argument of the parties and the relevant rules of this court. With respect to the making of preliminary objections to appeals , Order XIII Rule 5 ( 1) of the Court of Appeal Rules proscribes that: 'A respondent who intends to make any preliminary objection in relation to an appeal shall give notice of such preliminary objection to the Court and to the parties within fourteen days from the date of receipt of the record of appeal.' The foregoing rule is instructive. A respondent wishing to bring any preliminary objection in relation to an appeal, must lodge the notice of objection into Court within 14 days from the date of receipt of the record of appeal. In the present case, the respondent wishes to bring a preliminary objection to a Record of Appeal which was served upon them on 25th July 2022. Pursuant to the above provision, the respondent intending to make a preliminary objection ought to have filed its notice into Court within 14 days from 25th July 2022, being 29 th July 2022. Not having provided the notice of objection within the time prescribed by the Rules, the respondent now seeks an order for extension of time within which to file the preliminary objection to the appeal, by way of summons brought on 6 th September 2022 pursuant to Order XIII Rule 3 of the Court of Appeal Rules. Order XIII Rule 3 ( 1) (c) of the Court of Appeal Rules reads that 'the Court may for sufficient reason extend the time for taking any steps in connection with an appeal. ' Order XIII Rules 3(3) further provides that: 'The Court may for sufficient reason extend time for making an application, including an application for leave to appeal, or for bringing 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.' The import of the foregoing provision is that a Court is empowered to exercise wide discretion regarding the time within which an application in relation to an appeal can be filed. The Court may for sufficient reasons allow an application for bringing any application in relation to an appeal despite the time limited having expired. Hence in determining the application before the Court in relation to an application for an extension of time to file preliminary objection to the appeal, the Court must ascertain whether sufficient reason has been advanced for the failure to comply with the Rules in respect of time . The respondent's Counsel has contended that that the delay in not filing the preliminary objection within the time prescribed by the Rules was on account of the holdup in obtaining instructions from the respondent. However, a perusal of the intended notice to raise preliminary objection exhibited by the respondent in its affidavit marked as "NA la" shows that the nature of preliminary objection sought to be filed s eeks to challenge the form of the grounds of appeal contained in the memorandum of appeal. The appellant's affidavit evidence shows that the respondent was served with the said memorandum of appeal on the 1st June 2022 notwithstanding that the actual record of appeal of appeal and heads of arguments were served much later. It is clear that the respondent's Advocate had an opportunity at such an early stage to begin making necessary arrangements to obtain instruction on such a matter, which relates primarily on the issue of law. Furthermore, the nature of preliminary objection sought to be raised touches on a point of law for which Counsel for the r espondent having conduct of the matter could have sufficiently addressed without causing any further delay in the appeal before Court. I do agree with the appellant's contention that it would be not be challenging to obtain instruction on a matter such as the one sought to be raised by the respondent in today's advanced world of communication technology. Having made the foregoing considerations, I find that sufficient reasons have not been advanced for this Court to exercise its discretion envisaged under Order XIII Rule 3 Subrule (1) and (3) of the Court of Appeal Rules. I a ccordingly dismiss the respondent's application with costs, to be taxed in default of agreement. Dated at Lusaka this 21 st October 2022. ~ - N.~harpe-Phir COURT OF APPEAL JUDGE r- 7