Musonda Mutale v African Banking Corporation Limited (SCZ/08/05/2020) [2023] ZMCA 309 (10 August 2023)

J,. . . ' IN THE SUPREME COURT OF ZAMBIA SCZ/0Sj0S/2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN MUSONDA MUTALE AND . ' , APPLICANT AFRICAN BANKING CORPORATION LIMITED RESPONDENT Coram: Musonda DCJ, Wood and Chisanga JJS, on 11 th July, 2023 and 10th August, 2023 For the Applicant: In person For the Respondent: Mr. N. Nchito SC, Mrs. N. Simachela, Mr. C. Harnwela, Ms. N. Chibuye, Messrs Nchito and Nchito Advocates RULING WOOD, JS, delivered the Ruling of the Court. ' \ Cases referred to: 1. Lenard Kayanda v Ital Terrazo (in receivership) Appeal No. 125/2016 2. Investrust Bank Plc v Build It Hardware Ltd and Another Appeal No. 003/2013 3. D. E. Nkhuwa v Lusaka Tyre Services Limited (1977) Z. R.43 4. Stanley Mwambazi v Morester Farms (1977) Z. R. 108 5. Water Wells Limited v Wilson Samuel Jackson (1984) Z. R. 98 6. New Plast Industries v The Commissioner of Lands and Attorney General (2001) Z. R. 51 7. Engen Petroleum Zambia Limited v Willis Muhanga Jeromy Lumba Appeal No. 117/2016 8. Amiran Limited v Robert Bones Appeal No. 43/ 201 0 9. Zambia National Commercial Bank Plc v Joseph Kangwa SCZ Appeal No. 54 of2008 1 0. Zambia Telecommunications Company Shabawanga & 5 others Appeal No. 78/ 2016 Limited v Mirriam Legislation referred to: 1. Supreme Court Act, Chapter 25 of the Laws of Zambia; Supreme Court Rules 12 and 48 (4) 2. Rule 44 (1) Industrial and Labour Relations Court Rules Cap 269. 3. Section 37 of the Interpretation and General Provisions Act Cap 2 of the Laws of Zambia. Other works referred to: 1. Order 59/ 4/ 17 of the Rules of the Supreme Court Introduction 1) This is a notice of motion by the applicant for Leave to extend time to file a notice of motion and skeleton arguments. It is made pursuant to Rule 12 and Rule 48 (4) of the Supreme Court R2 Rules as read together with Order 59/ 4/ 17 of the Rules of the Supreme Court. Background 2) The history leading to this notice of motion is this. On 1 April 2023, this Court delivered judgment declining leave to appeal to the Supreme Court, and most importantly awarded costs against the applicants when this matter was commenced as an Industrial Relations matter under the Industrial Relations and Labour Relations Act Cap 269 which stipulates in Rule 44(1) how costs should be addressed. Applicant's affidavit in support 3) The affidavit in support sworn by the applicant states that the applicant inadvertently read Rule 48 (5) of the Supreme Court Rules as not restricting the time within which to file a notice of motion to 14 days from the date of the judgment complained of. That this was an oversight and without mala fides on his part, as he was not aware of this Court's interpretation of the Rule in question in the case of Lenard Kayanda v Ital Terrazo (in receivership) 1. R3 4) On 29 April, 2022, according to the applicant, he inadvertently and without leave, filed a notice of motion before a single Judge for this court to re-open and re-visit its judgment. The application for leave before a single Judge was refused for want of jurisdiction as the judgment complained of was presided over by three Judges of the Court. In the circumstances, the applicant ought to have sought leave from this Court. 5) Arising out of the single Judge's ruling, the applicant has now applied to this Court for leave to extend the time within which to file his notice of motion and skeleton arguments. Respondent's affidavit in opposition 6) The respondent has opposed the application. According to the affidavit ofMutule Bwembya Musebe filed on 23 June 2023, the applicant had fourteen days within which to file his notice of motion and he did not do so. Further, no sufficient reason had been advanced by the applicant to explain his failure to file the motion within the time prescribed by the rules of court. In addition, the applicant had not filed a motion in connection with the ruling of the single Judge delivered on 17 May 2023. As R4 such, the applicant was precluded from raising his complaint over the ruling before this Court. Applicant's affidavit in reply 7) The applicant has in his affidavit in reply merely repeated what he had earlier raised in his affidavit in support. Nothing much would be gained from repeating the contents of the affidavit in reply. The applicant's skeleton arguments · 8) The applicant has in his skeleton arguments gone to great. lengths to cite numerous authorities which to a great extent dealt with his dissatisfaction with the judgment of 1 April 2022. We are here concerned with the narrow issue of whether the applicant has made out a case for leave to be granted bearing in mind Rule 12 of the Supreme Court Rules which makes it a prerequisite for an applicant to show sufficient reason before Leave can be granted. We should also of course take into consideration guidelines given by this Court relating to applications of this nature. RS 9) The applicant anchored his application on Rule 12(1) of the Supreme Court Rules Cap 25 which reads as follows: "The Court shall have power for sufficient reason to extend time for making any application, including an application for leave to appeal, or for bringing any appeal, or for taking any step in or in connection with any appeal, notwithstanding that the time limited therefor may have expired, and whether the time limited for such purpose was so limited by the order of the Court or by these Rules, or by any written law." 10) He sought solace in Section 37 of the Interpretation and General Provisions Act Cap 2 of the Laws of Zambia which gives guidance on the construction of power to extend time. It states that: "Where in any written law a time is prescribed for doing any act or taking any proceeding and power is given to a court or other authority to extend such time, then, unless a contrary intention appears, such power may be exercised by the court or other authority although the application for the same is not made until after the expiration of the time prescribed." 11) He then proceeded to quote from the cases of Investrust Bank . Plc v Build It Hardware Ltd and Another 2; D. E. Nkhuwa v Lusaka Tyre Services Limited 3 ; Stanley Mwambazi v Morester Farms 4 and Water Wells Limited v Wilson Samuel Jackson 5 . R6 The common principles that can be gleaned from these cases in dealing with applications for extensions of times can be summed up as follows: i) This court has power to extend time but how it is moved matters. ii) The granting of an extension of time is entirely in the discretion of the court, but such discretion will not be exercised without good cause. · iii) It is the practice in dealing with bona fide interlocutory applications for courts to allow triable issues to come to trial despite the default of the parties; where a party is in default, he may be ordered to pay costs, but it is not in the interests of justice to deny him the right to have his case heard. iv) It is wrong to regard the explanation for the default, instead of the arguable defence as the pnmary consideration. 12) The applicant referred us to the case of New Plast Industries v The Commissioner of Lands and Attorney General 6 to support his submission that even though a party had wrongly commenced an action, he was perfectly at large to commence the proceedings afresh abiding by lawful procedure. R7 13) He went on to submit that he was subjected to severe injustice when this Court in its judgment of 1 April 2022 awarded the respondent costs without affording him a fair hearing on the question of unreasonable conduct as this court has long pronounced itself in numerous authorities such as Engen Petroleum Zambia Limited v Willis Muhanga Jeromy Lumba 7; Amiran Limited v Robert Bones 8; Zambia National Commercial Bank Plc v Joseph Kangwa9 and Zambia Telecommunications Company Limited v Mirriam Shabawanga & 5 others10, that a party in any matter emanating from the Industrial Relations Divisions of the High Court such as the present case can only be condemned in costs in line with the provisions of Rule 44(1) of the Industrial and Labour Relations Act. In condemning the applicant to costs, this Court did not state if he was guilty of contravening Rule 44(1) of the Industrial and Labour Relations Court Rules Cap 269. 14) This Court had not recounted any unreasonable conduct on the applicant's part in its judgment. It thus followed that the question did not arise, and no arguments were presented. The legal effect of the judgment would entitle the respondent R8 without just cause to pursue its colossal demand for costs when the decision by this Court on this issue was rendered per . . incunam. 15) The applicant thereafter submitted on vanous grounds as to why the judgment of 1 April 2022 should be reviewed and set aside. These grounds cannot be dealt with at this stage as we are only dealing with the issue of whether leave should be given to the applicant. Respondent's submissions 16) The respondent's first submission referred to Rules 48(1) and 48(5) of the Supreme Court Rules which provide that all motions should be filed within 14 days of the decision complained of. In this case, the applicant clearly admitted that he was out of time. Even Rule 12 of the Supreme Court Rules does not help the applicant much as this rule requires an applicant to show sufficient reason and material for the Court to extend time for making any application, which the applicant had not done. 17) The reason advanced by the applicant is that he was not aware of the Court's interpretation of the Rule 48(5) in Lenard Kanyanda v Ital Terrazo Limited (in receivership) 1• Counsel for R9 the respondent has relied on the case of D. E. Nk.huwa v Lusaka Tyre Services Limited 3 in which this Court held that the granting of an extension of time within which to appeal is entirely in the discretion of the Court. For this discretion to be exercised, there must be good cause and some material on which the discretion can be exercised. Counsel submitted that the D. E Nk.huwa case was followed in the case of Investrust Bank Plc v Build It Hardware and another 2 • 18) Counsel for the respondent submitted that the Court is entitled to consider the reasons for the delay when dealing with an application for an extension of time. There must be good cause for doing so, Counsel for the respondent contended that the applicant had failed to advance a cogent reason for his failure to file the motion within time. 19) In conclusion, counsel for the respondent submitted that the applicant's complaint about the decision of the single judge dated 1 7 May 2023 had no basis as the single judge had no jurisdiction to grant such an order because the applicant had not filed a motion in accordance with the provisions of Rule 48 of the Supreme Court Rules. RlO Our analysis and decision 20) We have read the notice of motion together with the affidavits, and skeleton arguments. It is quite apparent that what is at the core of this motion is our order dismissing with costs the applicant's appeal in our judgment of 1 April 2022. The other reasons advanced by the applicant in his motion although argued with a lot of passion and enthusiasm are in our view peripheral to the main reason for the motion. We cannot at this stage go into the merits or demerits of any of the proposed grounds to "revisit and reopen" our judgment of 1 April 2022 because we are only dealing with the narrow issue of whether leave should be granted to extend within which to file a notice of motion and skeleton. 21) Credit should be given to the applicant for his lucid arguments even though h_e is not an advocate. 22) As earlier stated, the applicant has pleaded mea culpa because he was not aware of this Court's interpretation in the case of Lenard Kayanda v Ital Terrazo Limited (in receivership) 1 on making an application within 14 days in accordance with Rule 48(5) of the Supreme Court Rules Cap 25. He however sought Rll refuge in Rule 12 of the Supreme Court Rules which gives this court power "for sufficient reason" to extend time for making any application, "including an application for leave to appeal, or for bringing any appeal or for taking any step in or in connection with any appeal, notwithstanding that the time limited therefor may have expired, and whether the time limited for such purpose was so limited by the order of the Court or by these Rules, or by any written law." 23) Rule 12 (1) has been the subject of interpretation in many judgments by this court including Investrust Bank Pie v Build It Hardware Ltd & another 2 where we stated in no uncertain terms that this Court has the power to extend time; in D. E Nkhuwa v Lusaka Tyre Services Limited 3 where we emphasized that the granting of an extension was entirely in the discretion of the Court with the caveat that such discretion will not be exercised without good cause; in Stanley Mwambazi v Morester Farms 4 where we held that; "It is the practice in dealing with bona fide interlocutory applications for courts to allow triable issues to come to trial despite the default of the parties; where a party is in default, he may be ordered to pay costs, but it is not in the R12 interests of justice to deny him the right to have his case heard." 24) Again, in Water Wells Limited v Wilson Samuel Jackson 5 we said; "It is wrong to regard the explanation for the default, instead of the arguable defence as the primary consideration. If no prejudice will be caused to a plaintiff by allowing the defendant to defend the claim, then, the action should be allowed to go to trial." 25) The words that stand out in these judgments are "power to extend," "discretion," "allow triable issues to come to trial despite the default of the parties," "discretion will not be exercised without good cause," and "the arguable defence is the primary consideration." When all these guiding principles are considered collectively, they form the basis for deciding on whether leave should be granted. What should be considered next is whether the applicant passes the test for this Court to exercise its discretion to grant him leave to extend time within which to file the notice of motion and skeleton arguments. 26) It is quite plain to us, that despite the argument by the respondent that the applicant is out of time and has not shown sufficient cause to extend time, the truth, given the Rl3 circumstances of this case, is that he has. Rule 44(1) of the Industrial and Labour Relations Act is sufficient reason and material for us to exercise our discretion. Even though we accept that ignorance of the law is no defence and that the law assists the vigilant, all the cases we have cited, point to the fact that this notice of motion is worthy of our discretion to extend time. No prejudice will be caused to the respondent and particularly i,n this case, it is in the interests of justice not to deny him the right to be heard. We accordingly allow the motion and order that the parties bear their respective costs. \ ·-.::,--~----- '~ •••• ! ••••••••••••••••••••••••• _:_:.:.:.!> ••• M. MUSONDA DEPUTY CHIEF JUSTICE A. M. OOD SUPREME COURT JUDGE F. M. CHISANGA SUPREME COURT JUDGE R14