NBS Bank v Hamdani (41 of 2009) [2010] MWSC 1 (25 April 2010)

5 (ii) obiigation to which he is subject as a trustee, or as a family representative; the registration of any person under this Act sha1l not confer on him anv rieht to any minerals or to any minerai oIt* as defined in the Mining Act and the Minins Regulations (Oil) Act respectively unlesl the same are expressly referred to in the register. -of We must observe, without more, that the circumstances of the instant case have no relevance to section 27, we are in agreement with the submission of counsel for the appellant that the appeliant had purchased Keza office Complex from- Atupele Properties Limited after both the High court and this court, in the tapacity of its single member as earlier observed, had allowed the disposal Keza office c-omplex, by refusing to allow the ACB to continue restricting the aisposJ of Keza office Complex through a restriction notice. in thlse circumstances, we concur with learned Counsel for the appellant that it would be absurd, unreasonabie and indeed quite unfair to now a1low seizure of Keza office Complex and freezing of the income therefrom when Keza Office Complex is in the hands of a third party who is not connected with the offences under the corrupt practices Act and indeed a third party who acquired Keza office Complex upon furnishing valuable considlration, in the sum of MK285 million. we in that respect, again, observe that the sar.e under court order had been effected when the High Court and this Court had vacated, so to speak, the restriction notice wi.icf, the ACB had earlier on obtained' In the circumstances, the appellant was under no restraint of any kind in regard to which he had to guard against, even the fact that there were court proceedings relating to xeA office complex. The effecting of the saie had the prior authortzation of the Court. We would on that ground a_lone allow the appeal. Be that as it ffi&y, it is also the considered view of the Court that Keza office Compiex is not dissipating, in that it is intact. The notion of "technical dissipation" espoused by the learned Judge in his Judsment. we reason, does not have any grounding in the law. Besides we_ must say it again, as noted above, that this court has not at any time by its decision, not even that in the ACB _v_ Atupele Properties Limited delivered on 2nd March, 2oor, reversed the rulings of the High court and of a single member of this court in regard to the vacation of the restriction notice in question. Thus, it remiins a firm view of this court that the sale of Keza office Complex was and is stiil sanctioned by Court in that resard. IN THE MALAWI SUPR. EME COURT OF APPEAL PRINCIPAL REGISTRY MSCA CIVIL APPEAL NO. 41 OF 2OO9 (Being Lilortgtue District Registrg Ciuil Cause IVo. 8A6 of 2005) BETWEEN: NBS BANK LIMITED R J. HAMDANI . ... -ano- . APPtrLI-ANT REStrONDtrNT BEFORE: THtr HONOURABLE THE HONOURABLtr THE HONOURABLE JUSTICE TEMBO, SC, JA JUSTICE SINGINI, SC, JA JUSTICE TWEA, JA Khuze Kapeta, SC, Counsei for the Apoellant Mulele (Mrs), Counsei for the Appeliar-ir Mvafo, Counsel for the R.espondent Balakasi, Court Clerk Singalo(Mrs), Senior Personal Secretary JUDGMtrNT TtrMBO SC JA This is an appeal by NBS Bank, the appellant, agerrust a decision of thrs Cour^t in a ruling made on ]Qtrr ;.tt e, 2OO9, by Honourable Justice Tambala, in a capacity of a single mernber of this Coutt, in Chambers. By that decision, the learned Justice of Appeal lefused lo granl- all applicat-ior-r of tl-ie appellant foi leave to file a notice of appeal out of tirne ' u rol,o*:"i"i',??iTl. i::J:T.j":H:: 'T11^ ^ "?,iHH, ?k,o:;, "r...*;'(bl ,"*.- taklng into account the contents of the .o.,it file in the iower ":; court u'hich had trre noti:.". of dp;"i prus ot the court; (b) thai tn.-r"r.,.".i'-i;;i.. ot Appeal "ppi;.;;ron for sray ll*,fT"| chagwamiiH'11,:",fi1il"[*,L"1':,*i,11[11#r"j:d# unissued by the r"*"r court, and that this fact was not controverl ed by the Resp.ondent; an{ (.) that tire learned i+:H:itrffii.'J."f" t#sT#,n" i"i-il ." ..,.ed by )n car-lsed by the courtt faiiure to issue the filed cloclrrnents i. consequentilr, the appellant's prayers are that rnre (a) find that the decision ;i th. I"rrrr-d Jusiice of Appe"i;;, wrong in that the appellant n-Jni"o a ,roti."-or.po.al in time but that the same was not issued by the ;;.;'.rrd that the Appellant,s appea-l has high chanc". of the learned dsti." ri appeal; (c) grant leave to the Appellant t-he ruting of tT ll,f*,H,'oo'al out oi ii*.' ;sffi;;he High court decrsion (d) condemn the n."po,. J-rr, ir, costs "r.r'.-ir.i;,?i3;ttu we haste' to state the fact that there is a_.so an appeal 0f the Respondent "r ri." rearned Justice of Appeal which *.""-*J; ;" 23,_aJu1y, toog. By that decision, the learned Justice oi ipp.ri gruri. O * application of the Appellant for stay of execution of the High court decision made in open court by Kamanga, J, on 3o,fiay oint.y, 20()8, and which was later ."rtin-a ii i.ir-* ,o have been so made by Mzikamanda, J, o" ZU1 Rebruary ,-o2OO9. The Responc-lent ,:i:,r:T.:X";."_'.."] gro,_,,rd. or "oo."l and inainly that the execurio" o.,,';#Sf::i-'#:t;:.jl: '" ". J;;ii,s stay or maln action, thus, iotto-i,rg oi.-i...t "11.il!, T;-,1"":"::: lea'red Justrce "r'oio""t ;t tr-re afp.rrr,.t,. application to appeal out of time "g"_.t the ciecisior consequentl',_ rr .rr8lr,=ver or th. n"jrJ,l-ff ;Tji coui t other thirrgs, we sho"io ?"innd thaiir-,""i-.,isror*f rh",,#,llf "g"itr"i it . o".i.m 1s Jr,rstice of Appeal \ /as wrong and contradictory to his owlt earlier decision in the same matteL, where and when the learned Justice of Appeal dismissed the apirellant's application to appeal against tire.ludgment of the FIigl-r Court out of time; and (b) reverse the decision of the learned Justice of Appeal in that havrng dismissed the Appellant's earlier application for leave to appeal out of time, there is no appeal pending determination in this court, against the judgment of the High court, thus, there cannot be a stay of executron of a judgment pending an appeal which is in fact not lodged and pending before this Court. we heard 1ega1 arguments of counsel of both parties to the instant appeal. They have also filed written skeleton arguments. we first deal with the Appellant's appeal agarnst the decision of the learned Justice of Appeal refusing the appellant's application for learre to appe a1 out of tirne. To begin with, we wor'lld like to agree with the view of the learned Justice of Appeal that the relevant and, therefore, applicable law herein is order III rule 4 of the supreme court of Appeal Rules (cap. 3:01) which prescribes that an application for enlargement of time wiiiiirr vvjrici.r Lo appeai must be supported by an affidavit showing (a) good and substantial reasons for faiiure to appeal within time; and (b) grounds of appeal which prirna facie show a good cause why the appea-l should be heard. To be successful, the affidavit in support of the application for enlargement of time must satisfy both factors, thus (a) and (b). where the application or the applicant stumbles on only one of these factors, the application fails in its entirety. In coming to his decision, the rearned Justice of appeal, among other things, considered and stated the following. "'flte laut requires thct"t in ciuit ntatters tl te LLt'LsLLCCesslul perlg has to cLppeal tutthin, srx tueelts after tl'te judgment is giuen itt the Htglt c)6y71.... Ir-r tl-te present case the deLctg is for i3 ntont|.s r.ifter lhe .t lud"gment tucts rectd out irt Cour1. This is inexcusctbLe delag. In the cose of Mhewe u Adtnarc 16 (1) MLR 3O1, tL'tis Coufi l'tet-d" tLtat euen u,tL'tere good and substanttial reason for the delag irt appealing utitltu't tinte ls esta.blisLted, the application to appeal out of ttme maA be refused tuhere the delag is inordinate. In thot case a delag of three montLLs u)os held to be inordirtate. In the present case the delag ls 13 monttts after the judgment u)as pronourLced in open court. TLtst delay is excessiue an'td unpardonable. I knotu of no ntle that states that time stads ntnnirug after perfection of judgntent. Iru mg uieut time started ntnning against the losing partA on the dag that the judgment utas read out in Open Court, on 30th MoA, 2 008. Th"e result ls that tl-te present application must be dlsmisse d on the ground tLmt tLrc applicant has failed to establish a good and substantial reason for failure to appeal tuith-in tim-e. I utottlcl elso dlsml.s.s th-e application orL the additiortai but separate ground tL'tat tLte applicant is guiltg of excessiue delag in commencirtg the app eal" . Section 23 (l) (2) of the Supreme Court of Appeal Act (C.p.3:01) prescribes as foilows - " L. If a person desires to appeal urtder tl'tts High Court to tLrc Supreme Courl, he shall, tn as maA be prescribed by Rutes of the Courl the Registrar of l:Lis irttention to appeal - (a) witltin 14 days of the jud.gment front uishtes to appeal if such judgment is an order; panl from the suclt manner giue notice to which lrc in.terlocu.tory (b) utithil? srx uteeks of tl'te judgn'ten,t from utl'tich he tui.sh,es to ctppectl. in, ang otlter case. 2. Tlrc Courl mag extend the tinte for giuin.g notice of intention to appecLl. ur'td.er this Cour1, rtotutithstcLt'r.dirtg that the tinte for giuittg suclt rtotice h-as expired". During the heal ing of the appeal, learned counsel for tire appellant sought to impress upon us that the Appeliant had in fact filed its appeal within the time prescribed under section 23 tI)(b) of the Supreme Court of Appeal Act, thus, within six weeks frorn the time the judgment was delivered in open court. On the other hand, counsel for the appellant maintalned that the court faiied to issue the notice once it had been so filed. A slance a1 the court lecord. esner-iallv nAges I B 23 to which the attention of this Court was particularly drawn, does not bear out the position maintained by learned counsel for the appellanl in thal regard. They, in particular, argued that lhe notice of appeal was daled, and lodged with the court on 12 June, 2008, after JQth May, 2008, the judgment date in open court. To the contrary, a glance at the notice of appeal at folio 22 and 23 of the court record clearly indicates the date of 17tt' June , 2OO9. In the circumstances we cannot fault the learned Justice of Appeai when he reasoned that in 'rhe irrstant case the delay was for thirteen months after the judgment was read out in open court. In that respect, it is also our view that such a deiay is an inexcusa-bie one. W-e, therefore, d.ismiss the appeal. It is so decided. We now must revert to the Respcndent's appeal against the grant of the order of stay. The case of the Respondent, in the main, is that by the time the Appellant brought up its application in that regard, its application for leave to appeal out of time had already been refused by the learr-red Justice of Appeal. Consequently, there rnras not then an aplleal pending before this Court. It is therefore argued for the flespondent that, such having lteen the case, it was intproper for the Airpellanl to harre brougl-rt be for e the Cour'r an application for stay of execution pendir-rg delermination of an aplleal from the .ludgmer-i1 of tl-re I-ligh Court r,r'1-ren in l'act lher e \ /as a subsrsting binding orcle r of the Clourr-t rcfi,rsinq 1i:iir,.: Io apl]{ra1 ol-ltoftrme'LearnedcounselfortheRespondentfurtlrer arguecl that the learned Justice of Appeal erred too in gr ar-rting the order of stay of executron pending determination of an appeal against the judgment of the FIigl-r court when in fact there \ /as no such appeal before this court, and rnrhen the learned Justice of Appeal himself had already refused leave to bring up suci-t an appeal out of time. A giance at the cogrt record, in particular folios 30 to 33 and 66 to 73, clearly shows the following: To begin with, that the iearned Justice of Appeal made his ruling on 10th day of June , 2OO9, by urhich he refused. to grant an application of the Appellant for leave to appeal out of time; that sr-rbsequent thereupon, in particular , on 23'd July, 2OO9, the learned Justice of Appeal granted a stay order, as follornrs - "flauing heard, both counsel an'td considered the skeletal arguffLents of couftsel I am of the uieut that ttte appticatiort for stag must be alloued. I allotu on tttis cond.ition tLtat K1.4 mlllion be paid to th"e respond-ent as part of l.rer damages and thctt tLtts ctntourtt sl-taii be iaiten irtio accourtt w'rtert u iLecisioit on appeal is f"nallg reacl'ted." with respect, we are of the firm view that the learned Justice of Appeal erred in supposing that there was an appeal lodged a]]d pending determination before the Court, when in actual fact an appiication for leave to appeal out of time had earlier been reiised by the learned Justice of Appeal' We must, however, point it out that counsel concerned should share the burden of blameworthiness for harring created and therefore given sucl-r wrong impression to the learnecl Justrce of Appeal, namely, that there was then an appeal pending befoie this Court. Otherrvise, jt cannot be reasonably explainecl why the learnecl Justice of Appeal appeafs to have affirmatively rndicated tl-re vieu, tl-Lat the re \^/as all allpeal pencling beiore this Court, by stating rn hrs order that "I{L'4 *illiott be paid to the respondent as part of her damages andthatthisamountshallbetakenintoaccountwhena d.ecision on appeal is finally reached'" In the circumstalces, we fully share in the view of the learned counsel for the Respond.ent that it was improper for the Appellant to have bro,-.ght before ti-ris. court an appiicati'on for stay o1 execution pending determination of an appeal from thejudgmentofth.eFligh_Courtwheninfacttherewasa subsisting binding order-of th. cour t refusing leave to appeal out of time. Likewise, the learned Justice of Appea-i too erred in subsequently granting a stay order in those circumstances' Hereinabove we have dismissed the appeal of the Appeilant against the decision of the learned Justi-ce of Appeal refusing leave to appeal out of time. This meafls, therefore, that there was not then af1d there is not now an appeal pending determination before this cor-rrt. in the circumstances' ?il ord.erforstayotexecutioncarrnotbesustained. We accord.ingly alltw the Respond"ent's ]Pneal It is so decided' costs are for the Respond"ents for both appeals considered and deterrnined herein. DELMRED in open court on this 26th day of Aprii' 2010 at Blaltyre- t4 Qicrnr.r] ur6r r.vu IIon. Justice tr. M. Singini, SC, JA \*{, .>t+ Q,.rrr,-'r1 \4 urAarvLL Hon. Justi/e E. B. Twea, JA ....'./. 1