Roanbeat Investment Limited v MTN (Zambia) Limited and Anor (SCZ/7/22/2024) [2025] ZMSC 19 (13 August 2025)

IN THE SUPREME COURT OF ZAMBI ------- HOLDEN AT LUSAKA (Civil Jurisdiction) 1:.~ H'OUR SCZ/7/22/2024 B E T W E E N : ROANBEAT INVESTMENT LIMI AND MTN (ZAMBIA) LIMITED NDOLA CITY COUNCIL Juo,crAR) - ..... -~--- 1 3 AUG 2025 .. ·-•--..... .. ...., __ , .. ; ::t· ----~ ... APPLICANT 1ST RESPONDENT 2ND RESPONDENT Coram: Malila CJ, Kao ma and Chisanga, JJS on 3rd June, 2025 and 13th August, 2025 For the Applicant: Mr. K. Phiri - Messrs Malambo & Company For the 1st Respondent: Mr. M. J. Chitupila - Messrs Gil & Seph Advocates For the 2nd Respondent: In-House Counsel (Not in attendance) RULING Malila, CJ delivered the ruling of the court. Cases referred to: 1. D. E. Nkhuwa v. Lusaka Tyre Services Limited (1977) ZR 43 2 . Investrust Bank Plc v. Buildit Hardware Ltd (SCZ/ Appeal No. 003/2013) 3 . Twampane Mining Corporation Limited and E & M Storti Mining (2011) ZR 67 4. Palata Investments Ltd and Others v. Burt & Sin.field Ltd and Others (1985)ALLE. R. 517 R2 Legislation referred to: 1. Court of Appeal Act 2. Supreme Court Act 1.0. INTRODUCTION 1. 1. On 4 th April 2025, Kabuka JS sitting as a single judge of this court delivered a ruling in which she declined the applicant's application for extension of time within which to file an application for leave to appeal a Court of Appeal judgment. 1.2. The application before Kabuka JS, was made against some rather unusual circumstances. It came after the Court of Appeal on 29th August 2023 delivered a judgment against the respondents in favour of the applicant to this motion. 1.3. The applicant was the successful party in the action in the High Court. The judgment of the High Court was upheld by the Court of Appeal. It is not often that a party who prevails in court proceedings contemplates an appeal against the verdict, as did the applicant in this case. 1.4. It would appear that the applicant's dissatisfaction arose principally from the holdings that the party primarily liable to R3 pay damages to the applicant was the second respondent who had previously undertaken to indemnify the first respondent. 1.5. Leave to appeal to this court was declined by the Court of Appeal in a ruling given on 12th July 2024. The court held that the proposed grounds of appeal as formulated neither raised any point of law of public importance nor did they have any prospect of success. 1.6. Still desirous of prosecuting the appeal, the applicant then considered filing a renewed application before a single judge of this court for leave to appeal. This was, however, conceived way beyond the time prescribed for making such applications. Accordingly, the applicant sought an order for extension of time within which to file the application for leave to appeal. 2.0. APPLICATION FOR EXTENSION OF TIME BEFORE A SINGLE JUDGE 2.1. The application was made ex-parte to a single judge of this court. It was filed on 17th September 2024. The single judge preferred that the application was heard inter-partes, and so it was on 10th October 2024. R4 2.2. The affidavit in support of the application for extension of time was sworn by Ronald Bwale Nsokoshi, a director in the applicant company. He averred that he was in South Africa at the time the ruling by the Court of Appeal refusing to grant permission to appeal was made. He further states that the applicant's Advocates on record were unable to contact him and communicate the decision of the Court of Appeal, and to obtain further instructions. 2.3. The deponent swore that he only came to know the outcome of the applicant's application for permission to appeal upon his return on 15th August 2024. He produced stamped copies of his passport to confirm that he was out of the country when the ruling was delivered. 2.4. The applicant then changed lawyers from Makebi Zulu and Co., to Zam bwe and Partners. The latter only received the case records from the farmer on 19th August 2024. 2.5. In his affidavit the deponent reiterated his belief that the proposed appeal raises an important and novel question of law of public importance which this court ought to determine. 3.0. APPLICATION OPPOSED RS 3.1. The application was opposed. On behalf of the first respondent, the opposing affidavit was sworn by Wana Mukuma, its Legal Assistant. 3 .2. The basis for the opposition was principally that Ronald Bwale Nsokoshi is not the only Director in the applicant company as the exhibited PACRA records show; that the applicant was made aware of the ruling of the Court of Appeal declining permission to appeal on 22nd July 2024. A letter from Zambwe and Partners, lawyers for the applicant and dated 16th August 2024, addressed to Makebi Zulu & Co., former lawyers of the applicant, was exhibited. It confirms that the ruling was received by the applicant on 22nd July 2024. 3.3. Wana Mutale further deposed that despite knowing of the ruling on 22nd July 2024 the applicant waited until 11 th September 2024 to file the application. In any case, he averred, there are multiple forms of communication which could have been used to inform the one director of the applicant who was out of the country. 4.0. DECISION OF THE SINGLE JUDGE R6 4.1. Upon hearing the parties and appraising the affidavits and the arguments submitted, the single judge reviewed various authorities and in her ruling of 4 th April 2025 held that the delay by the applicant in lodging a renewed application for leave to appeal was inordinate. The reason given for the delay was not satisfactory. She thus declined to grant the application for extension of time. 4.2. The applicant then, by motion to the full court, renewed the application for extension of time to file the renewed application for leave to appeal. 5.0. CONSIDERATION OF THE RENEWED APPLICATION 5.1. The factual premises for the current application 1s straight forward. The applicant had applied for leave to appeal the decision of the Court of Appeal in obedience to section 13(3) of the Court of Appeal Act. That application was rejected by the Court of Appeal. R7 5.2. The applicant then sought to renew the application by moving a single judge of this court in accordance with section 2 4(b) of the Supreme Court Act. 5.3. Section 17 (1) of the Suprem e Court Act provides that : ... a person who intends to appeal against a judgment of the Court of Appeal shall do so within 14 days of obtaining leave from the Court of Appeal in the manner and form prescribed by the rules of the Court of Appeal. 5.4. In the present ca se leave by the Court of Appeal was d eclined . The applicant thus sought to renew the application for leave before a single judge of this court. Such application, like that envis aged in section 17 of the Supreme Court Act a s quoted above, is time bound. 5.5. In terms of Rule 48(1) as amended, an application to a single judge shall be by motion or summons within fourteen days of the decision complained of. In this case, this translates to fourteen days after the 12t h July 2024. 5 .6. This court, however, has the power to grant extension of time within which to file any application. The granting of such an extension is never automatic. It is dependent on the discretion RB of the court. Such discretion 1s based on sufficient reason, meaning that the applicant must provide a valid explanation for the delay. 5. 7 . In considering whether to grant the extension sought, the court will review the reason given for the delay, the length of the delay, the prejudice to the other party and, in some cases, the merits of the application or the objective the order sought is intended to achieve. 5.8. In D. E. Nkhuwa v. Lusaka Tyre Services Limitedl11, we stated in relation to an application for leave to appeal that: 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. 5.9. Elsewhere in that judgement we observed more generally, that: Where the court has discretion to enlarge time for a procedural step, it will not exercise that discretion in favour of the applicant unless there is some material on which the discretion can be exercised ... The rules prescribing times within which steps must be taken must be adhered to strictly and practitioners who ignore them do so at their own peril. R9 5.10. In Investrust Bank Plc v. Buildit Hardware Ltdl21 we pertinently observed that the power vested in this court by virtue of Rule 12 of the Supreme Court Rules is not unfettered; it is to be exercised only where it can be shown that there was sufficient reason to exercis e the discretion to extend time. 5 . 1 1. In the present case the applicant has stated that its director was out of jurisdiction and was thus unaware of the ruling of the Court of Appeal declining leave. In this day and age, technology has so advanced that only the willful can remain incommunicado, regardless of where they happen to be. 5.12. Besides, the applicant is a limited liability company which is domiciled in this Republic of Zambia. It does not fly to Johannesburg if one of its directors does. It is a going concern and it remained so at all material times. 5.13. Evidence has been provided through the Affidavit in Opposition that the lawyers for the applicant confirmed that the ruling was received by the applicant on 22nd July 2024. RIO 5.14. There is further evidence confirming that another director was available, even assuming that the applicant company had no management. We find the reasons given for failure to file the application within the prescribed period, incredible. 5.15. As obs erved by the s ingle judge s ome fifty odd days elapsed from the time the applicant s hould have filed its application. In Twampane Mining Corporation Limited and E & M St orti Miningl3 l we consider ed the length of the delay in making an application and concluded that thirty-nine days was to long a delay. In Palata Investments Ltd and Others v . Burt & Sinfield Ltd and Othersl4l on the other hand, a delay of three days was considered to be short. 5.16. In Investrust v. Buildit Hardware12 l the application was filed fifty days after the judgment. We considered the delay as inordinate. Likewise, in this case, we hold that a delay of fifty days is inordinate. 5 .17. The upshot is that we find the reasons given for the delay not to be sufficient or good enough to enable us exercise our discretion in favour of the applicant. We also consider the period of fifty Rll days delay to be inordinate. We find it unnecessary to comment on the prospect of the intended appeal. 5 . 18. For the foregoing reasons, we uphold the decision of the single judge and dismiss this motion with costs to be truced in default of agreement. ~::=----- CHIEF JUSTICE ············ ········~ F. M. Chisanga SUPREME COURT JUDGE ······