Saka v Chomba (CAZ 8 59 of 2017) [2017] ZMCA 152 (10 November 2017)

1HE COURT OF APPEAL FOR ZAMBIA APPEAL NO. CAZ/08/059/2017 HOLDEN AT LUSAKA (Civil Jurisdiction} BETWEEN: RACHAEL LUNGU SAKA APPELLANT AND HILDA BWALYA CHOMBA (Sued as Administratrix of the estate of the late Jean M. Chomba) 1st RESPONDENT ATTORNEY GENERAL 2nd RESPONDENT CORAM: ON: Chashi, Chishimba and. Mulongoti, JJA 19th October, 2017 and 10th November, 2017 For the Appellant: B. J. Mwanza, Legal Resources Chambers For the 1st Respondent: S. Mambwe, Messrs Mambwe, Siwila and Lisimba Advocates For the 2nd Respondent: L. Shula (Ms.) Senior State Advocate RULING CHASHI, JA delivered the Ruling of the Court. Cases referred to: 1. D. E. Nkhuwa v Lusaka Tyre Service Limited (1977) ZR 43 2. Nahar Investments v Grindlays Bank International Zambia Limited (1984) ZR 81 3. Bonar Travel Limited v SUSA (1993 - 94) ZR 98 4. Mundia v Zambia Electricity Supply Corporation Limited- SCZ/08/043/2013 (unreported) Legislation referred to: 5. The Court of Appeal Act No. 7 of 2016 This is an application by the Appellant, whom we shall refer to in this -R2- ruling as the Applicant. The application is made pursuant to Order 13/3 of The Court of Appeal Rules5 (CAR) for leave to file record of appeal out of time. We must state from the onset that the initial application was made to a single Judge of the Court, but was however referred to the full Court for hearing to enable the Court give guidance on the approach that should be taken on applications for extension of time for filing records of appeal. The application is by summons accompanied by an affidavit in support and skeleton arguments. According to the affidavit deposed to by the Applicant, she could not file the record of appeal within the prescribed period of sixty (60) days because the transcript of proceedings in the court below has not been ready. At the hearing of the application, Mr. Mwanza, Counsel for the Applicant relied on the aforcstated affidavit as well as skeleton arguments. It is submitted that Order 13/3 CAR gives the Court powers to extend time for taking any step towards prosecution of an appeal even after the expiry of the prescribed time or period. That Rule 3 in particular, states -R 3- as follows: “The Court may for sufficient reason extend time for making 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 any written law. ” According to Counsel, this is an appropriate case warranting the Court to exercise its powers to grant the Applicant leave to file the record of appeal and heads of argument out of time. Counsel drew the attention of the Court to Order 10/6 CAR which prescribes that the record of appeal must be filed within sixty (60) days of the filing of a notice of intention to appeal subject to the grant of extension of time pursuant to Order 13/3 CAR. Counsel further submitted that the failure to file the record of appeal within the prescribed time was clearly out of the control of the Applicant and was caused by administrative changes within the Judiciary. That nevertheless, the Applicant has now prepared the record of appeal and heads of argument which are ready for filing. Counsel drew the attention of the court to the cases of D. E. Nkhuwa v Lusaka Tyre Services Limited1, Nahar Investments v Grindlays Bank -R 4- International Limited2 and Bonar Travel Limited v SUSA3 as some of the cases where the Supreme Court has granted extension of time for taking steps after the time limited by the rules had elapsed. Counsel further submitted that no prejudice would be caused to the Respondents if the application is granted as the Respondents will be at liberty to file their respective heads of argument in response and also the Court is empowered to sanction the Applicant by the award of costs to the Respondents. Mr. Mambwe and Ms. Shula Counsel for the 1st and 2nd Respondents respectively did not object to the application. We have carefully considered the application together with the Applicant’s arguments. A perusal of the record shows that the Notice of intention to Appeal and the Memorandum of Appeal were filed on 7th March, 2017. The Appellant therefore, in accordance with Order 10/6 (a) CAR was supposed to file the record of appeal together with heads of argument within sixty (60) days from the aforestated date. However, as admitted by the Applicant this was not done. Neither did the Applicant take the opportunity to apply for enlargement of time before the expiry of the sixty (60) days despite knowing very well that she was running out of time. -R 5- This notwithstanding, the Applicant had an opportunity to apply to extend time under Order 13/3 (2) CAR which states as follows: “An Application to the Court for extension of time in relation to a Judgment or the date of expiration of the time within which the application ought to have been made, shall be filed in the Registry within twenty-one days of the Judgment or such time within which the application ought to have been made, unless leave of Court is obtained.” VJe note however that the twenty-one (21) days after the expiry of the sixty (60) days has also since elapsed. The Applicant only filed the current application on 1st August, 2017 pursuant to Order 13/3 CAR under the summons titled: “leave to file record of appeal out of time...” Without specifying under which subrule it was being made. Order 13/3 has six sub rules. It is important for applicants to clearly state pursuant to which subrule the application is being made. However, bearing in mind the circumstances of this case, we are of the considered view that the application should have specifically been made under Order 13/3 (3) CAR for leave since both the sixty (60) days for enlargement of time and the twenty-one (21) days for extension of time had elapsed and the summons should have read as: “Summons for an order for leave to apply for extension of time within which to file the record of appeal out of time.” -R6- Be that as it may, we note that Counsel did in fact quote Order 13/3 (3) CAR. The effect of Order 13/3 (3) CAR is that once leave is granted, then the Applicant can file an application for extension of time within which to file the record of appeal together with the heads of argument. Furthermore, Order 13/3 (3) CAR gives discretion to the Court to grant the application outside the two prescribed periods of sixty (60) and twenty-one (21) days on sufficient reasons being advanced. As earlier alluded to, we note from exhibit “RLS2” in the affidavit in support of the application that the Applicant wrote to the Registrar of the High Court j ust before the expiry of the sixty days but took no steps to apply for enlargement of time. Further, the Applicant did not apply for extension of time within the twenty-one days period. In our view that shows laxity and total lack of concern on the part of the Applicant as regards the provisions of the law in terms of the rules which are very clear. As much as this Court has discretion to grant extensions of time; that is not in any way a passport for parties to deliberately disregard the Rules of the Court. -R7- The Supreme Court has in a number of cases cautioned parties against this kind of conduct. In the Nahar2 case, which has been cited by the Applicant, the Supreme Court had this to say: “We wish to remind, the Appellants that it is their duty to lodge records of appeal within the period allowed including any extended period ...litigation must come to an end and it is highly undesirable that Respondents should be kept in suspense because of dilatory conduct on the part of the Appellants. ” It was in the same case, held that in the event of inordinate delay or unfair prejudice to a Respondent, the Appellant can expect the appeal to be dismissed. In the case of Mundia v Zambia Electricity Supply Corporation Limited4 Muyovwe JS, in endorsing the Nahar2 case, emphasized the need to file the record of appeal within time and further stated that where there is a possible delay a party must apply for enlargement of time to enable total compliance. She went on to state that the Appellants who sit back do so at their own peril. It is not in dispute that the record of appeal has not been filed. The Applicant did not proffer any explanation as to why they did not apply for enlargement of time within sixty (60) days nor for extension of time within twenty-one (21) days, although it would seem they were oblivious to the latter provision. -R 8- It is therefore evident that the Applicant is in breach of the rules. We need to reiterate that the role of the rules of procedure in the administration of justice is fundamental and as such they should be followed vigorously as they are there to regulate the processing of appeals and facilitate speedy and orderly administration of justice. This being the first case in which we have outlined and pronounced ourselves on the procedure as regards applications for enlargement and/ or extension of time, we will give the Applicants a benefit of doubt. We however, take this opportunity to warn parties and indeed the learned Advocates representing parties before this Court that in future where there is dilatory conduct and deliberate noncompliance with the rules of procedure in particular CAR, the parties shall bear the consequences as we shall not hesitate to refuse applications as the one in casu and consequently dismiss the appeals. In the view we have taken of this matter, we shall allow the application and grant the Applicant leave to apply for extension of time within which -R9- to file the record of appeal out of time within fourteen (14) days from the date hereof befoi c a single Judge of the Court of Appeal, failure to which F. M. CHISHIMBA J. Z. MULONGOTI COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE