Chiragben Rashikbahai Pandoliker v African Banking Corporation Zambia Limited (T/A Banc ABC) (NOM/11/2018) [2018] ZMCA 608 (3 October 2018)

AND REGISTR' OX50067. L AFRICAN BANKING CORPORATION ZAMBIA LIMITED (T/A Banc ABC) RESPONDENT CORAM: CHASHI, LENGALENGA AND SIAVWAPA, JJA On 26t h September and 3 rd October 2018 FOR THE APPELLANT: MR. A. WRIGHT WITH MR. D. MUSHENYA BOTH OF WRIGHT CHAMBERS FOR THE RESPONDENT: MR. K. WISHIMANGA WITH MR. S. MUSONDA LEGAL BOTH OF A. M. WOOD PRACTITIONERS RULING SIAVWAPA, JA, delivered the Ruling of the Court. Cases referred to: 1. D. E. Nkhuwa V Lusaka Tyre Services Limited (.19 77) ZR 2 . Rosemary Bwalya and Others V. Mwanamuto Investments Limited (2012) lZR 473 3. Collett V Van Zyl Brothers Ltd (1966) ZR 65 at 72 This is a Notice of Motion by the Applicant to set aside the Ruling of a single Judge of this Court granting an order to extend time within which to file an application for leave to appeal to the Supreme Court. The Notice of Motion was made pursuant to Section 9(B) of the Court of Appeal Act and Order 2 (1) (8) and (9) of the Court of Appeal Rules. In dealing with motions challenging the decisions of single Judges of this Court, we are mindful that our duty is to review the decision being challenged rather than in exercise of our appellate jurisdiction. We are also mindful that wh en called upon to extend time under Order 13 Rule 3, a single Judge of the Court exercises discretion and as such, in reviewing such a decision we need to take caution not to take away the exercise of the discretion. In this case, the Applicant sought an extension of time within which to apply for leave to appeal on the basis that it needed to consult the stakeholders and obtain the resolution of the Board before lodging an application for leave to appeal. R2 It was further averred that the delay of two weeks was not inordinate because once the Board made the resolution on 20th February 2018, the application for extension was filed. In opposing the application, the Applicant herein averred that granting the extension would be prejudicial to him as Judgment was passed in his favour more so that no resolution of the Board was exhibited. In responding to the objection, the Applicant averred that it had exhibited a notice of a Board meeting and that Board meetings lead to resolutions. The learned single Judge , after considering the affidavit evidence and the authorities, in particular, the case of D. E. Nkhuwa V Lusaka Tyre Services Limited1 which was relied upon by the Applicant came to the conclusion that the Respondent had advanced a plausible expla nation and that the delay was not inordinate. She accordingly allowed the application and grante d the Respondent leave to apply for leave to a ppeal out of time. Before us, the Applicant h as argued that the single Judge did not exercise h er discretion properly as there was no m a terial upon which to anchor the discretion. R3 He referred us to a number of cases in support of the argument, but we will just consider three of them. The first is the case of Rosemary Bwalya and Others V. Mwanamuto Investments Limited2 in which the Supreme Court of Zambia stated as follows; "It is trite that discretionary powers must be exercised judiciously and for good and convincing reasons." In the case of Collett V Van Zyl Brothers Ltd (1966)3, Blagden CJ stated as follows; f"txed "Judicial d iscretion must be exercised on principles, that, is according to rules of reason and justice and the ex ercise of discretion even by a Judge sitting alone must be justifiable..... Where there are no materials on which the Judge can exercise his discretion, he is not justified in depriv ing a successful party ... t he materials must be those in evidence in the case. " (Underlining ours for emphasis) Finally in the case of D. E. Nkhuwa V Lusaka Tyre Services Limited, the Supreme Court of Zambia held as follows; (i) The granting of an extension of time within which to appeal is entirely in the discretion of the Court, but such discretion will not be exercised without good cause." Order XIII Rule 3 (1) of the Court of Appeal Rules which provides for extension of time provides as follows; R4 "The Court may, for sufficient reason extend the t ime for (a) Maki ng an application including an application for leave to appeal (b) Bringing an appeal or (c) Taki ng any steps i n or in connection w i th an appeal". With the guidance from the Supreme Court on the exercise of discretion by the Court when a party is seeking to extend time, it is clear that the circumstances and the reasons for the delay must be justifiable. In the case before the single Judge and now before us, the Respondent's main reason advanced is that the Respondent made the decision to appeal following the Board meeting of its Directors on or about 20th February 2018. A notice of a meeting for Directors scheduled for 20th February 2018 at 15.05 hours is exhibited to the affidavit of Joseph Simonda Kalondawanga as "JSKl ". When the matter came up for h earing, Mr. Wright, Counsel for the Applicant submitted that the Respondent did not provide to the single Judge sufficient material by way of evidence upon which the Judge could exercise her discretion the way she did. He pointed out that the exhibited Notice of a Board meeting was not dated and contained no agenda thereby leaving room for doubt as to its authenticity. RS He further pointed out that in the absence of the Board resolution, the Respondent could have exhibited minutes of the Board meeting that passed the resolution to appeal. For the Respondent Mr. Musonda maintained that the single Judge had been presented with sufficient material upon which she exercised her discretion. We have carefully considered the arguments before the single Judge which were renewed before us and we find that, our task is to decide whether the single Judge had sufficient material upon which to exercise her discretion in the manner she did. It is clear that the material before the single Judge was that the Appellant engaged in consultations with stakeholders soon after Judgment which culminated into a Board Resolution to appeal passed on or about 20th February 2018. It is our view that once this evidence is placed before the Court, it should be supported by documentary evidence. The Applicant cannot just aver that it was waiting for a resolution without placing before the Court a copy of the resolution or minutes of the meeting at which the resolution was passed. The Notice of a meeting that was exhibited is questionable material as it is not dated and neither does it demonstrate that the Judgement sought to be appealed against was an agenda item as no agenda is exhibited. R6 We therefore do not think that the reasons given for the delay were convincing in terms of the Rosemary Bwalya case (Supra). Discretion to extend time pursuant to Order XIII Rule 3 (1) of the Court of Appeal Rules is exercisable only where the Applicant has provided sufficient reason. Insufficiency of reason must result in the dismissal of the application which is also in the discretion of the Court. As regards the time, we agree that a delay of two weeks may not be inordinate in this case but we hasten to point out that where no sufficient or convincing reason has been given to the Court for the delay, the length of the delay is unlikely to assist the Applicant unless the delay is so short that it could be ignored by the Court. We also take the view that an Appellant, who has had his day in the High Court and this Court, who has failed for no good reason to comply with the Rules of this Court pertaining to an appeal to the Supreme Court, suffers no prejudice. Finally, we state that the exercise of discretion by the Court is not like casting lots. It must always be informed by good reason and judgment. The law places a duty on the Applicant to provide the Court with sufficient reason and failure to do so must lead to the exercise of that discretion in the negative by dismissing the application for an extension of time. R7 We therefore find that having failed to present sufficient material upon which the discretion to extend time may be exercised, the Appellant was not entitled to get the order that was given by the single Judge. We dismiss the application for extension of time within which to a pply for leave to appeal to t h e Supreme Court a nd set aside the ruling by the single Judge. otiose and we shall not consider the gu ents m ade by the p a rties in that regard . J. CHASHI COURT OF APPEAL JUDGE ....... 1l .......... ¼ ...... .. F. M. LENGALENGA COURT OF APPEAL JUDGE M. J. SIAVWAPA COURT OF APPEAL JUDGE R8