Northern Cycles Ltd v Commercial Bank Ltd (SCZ 104 of 2002) [2003] ZMSC 128 (2 December 2003)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL 104/2002 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: NORTHERN CYCLES LIMITED APPELLANT AND COMMERCIAL BANK LIMITED RESPONDENT CORAM: Chirwa, Chibesakunda and Silomba, JJS on 4th December 2002 and 2nd December For the Appellant: Mr. W. Forrest, Forrest Price & Co. For the Respondent: Mr. M. Chungani, Chungani & Co. JUDGMENT Chirwa, J. S. delivered judgment of the Court: - This record of appeal is not prepared in accordance with this Court's Rules, From the notice of appeal, the appeal is an appeal from decisions of the High Court dated 26th April 2000 and 25th October 2000. On the record there is an Ex-parte Summons for leave to extend time for giving notice of appeal and to stay execution pending determination of the appeal - under the provisions of Order 50 and Order 5 of the Supreme Court Rules. The summons is supported by an affidavit on behalf of the appellant. These summons were issued on 16th May 2002 and returnable on 5th June 2002. J2 We do not know what was ordered by the Court or judge that granted the leave as the said order is not on the record. In any case, we do not see how time could have been extended as it had already elapsed and there was nothing to extend. This appeal could have been dismissed in terms of Rule 68 (2) of the Supreme Court Rules. Be as it may, it appears that leave was granted and pursuant to that leave, a notice of appeal was filed on 6th June 2002. The notice of appeal reads as follows: - “TAKE NOTICE that Northern Cycles Ltd being dissatisfied with the Rulings of the of the Honourable Mr. Justice M. W. Wanki herein on the 26th April 2000 and 25th October 2000 intends to appeal to the Supreme Court against the whole of both Rulings." The record, further goes out of our Rules in the memorandum of appeal. It introduces other rulings not appealed against. We are not here to prepare records for litigants, we will therefore proceed with this appeal on the basis of the notice of appeal as we do not know what leave was granted, namely, leave to appeal against what rulings. Coming back to the notice of appeal, the ruling of 26th April 2000 is a ruling on review of the ruling of 12th July 1999 whose ruling was in favour of the respondent but the judge did not make any order as to costs. The respondent, who was a successful party, applied for review so that the court could make an order as to costs and prayed that as a successful party and as a general rule costs are awarded to a successful party unless otherwise ordered by the court, he prayed that the court varies its ruling as far as costs are concerned and the learned trial judge agreed with him that it was an oversight not to award costs to a successful party and accordingly the judge varied his ruling by including the award of costs to the respondent. J3 The ruling of 25th October 2000 was a ruling on appeal from the District Registrar who according to the ground of appeal as quoted in the ruling was that: - “The learned District Registrar erred in law when he failed to consider the unlawfulness of the interest of K32.825.785.93 which was slapped on the sum of K18,886,212.10 at the time when the plaintiff Bank was under Receivership." In his ruling, the learned trial judge gave the history of the matter and came to the conclusion that the matter which was before him on appeal was against the refusal by the District Registrar to set aside the writ of fieri facias, which ruling was delivered on 30th May, 2000. In considering the appeal before him, the learned trial judge found that the matter between the parties was finalised on 28th June 1999 and he went on to say: - “No appeal was made to the Supreme Court. It was only on 15th February 2000 that an application for leave to appeal to the Supreme Court. Thereafter, an application for leave to appeal out of time lay to the Supreme Court was unsuccessfully made before this court. Thereafter, an application for leave to appeal out of time lay to the Supreme Court. However, no such application was made. Because no appeal was pending before the Supreme Court on 10th April 2000 execution was effected. The application that was made on 11lh April 2000 in my view was an attempt to reopening the case that had been finalised. I would therefore, agree with the District Registrar. I therefore find no merit in this appeal. It is accordingly dismissed." With this background, the question now is what appeal is before this court for which leave was belatedly granted to appeal out of time. We are not helped by the incomplete record because the record does not contain the proceedings and order before the single judge that granted leave. The ruling of 25th October 2000 upholds J4 the District Registrar’s refusal to say execution, with learned trial judge saying that that was an attempt by the appellant to re-open a case already finalised. We note from paragraph 5 of the affidavit in support for leave to extend time for giving notice of appeal and to stay execution pending determination of the appeal, that the ruling of the District Registrar refusing stay of execution is not one of those rulings the appellant wished to appeal against. This appeal must fail because the single judge purportedly extended time that was non-existant; time had already expired. Secondly this appeal fails because the record is not prepared in accordance with the Rules and it is dismissed under Rule 68 (2) of the Rules of the Supreme Court. Thirdly, the matter having been finalized long time ago as found by the learned trial judge, cannot be resuscitated by an application to stay an execution which has already been done. The appeal is therefore dismissed with costs. Let the respondent enjoy the fruits of his judgment. The stay of execution of judgment is discharged. Costs to the respondent. D. K. CHIRWA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE