Roy Situmbeko v Zega Limited (SCZ/8/324/2013) [2013] ZMSC 74 (9 August 2013)

1--Jlo~ IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) SCZ/8/324/2013 BETWEEN: ROY SITUMBEKO AND ZEGA LIMITED APPELLANT RESPONDENT CORAM: CHIBOMBA, PHIRI AND WANKI, JJS On 24 th April, 2013 and 9 th August, 2013 For the Appellant: Mr. T. Chali of Messrs. Nicholas Chanda and Associates For the Respondent: Mr. S. Chisenga of Messrs. Corpus Legal Practitioners JUDGMENT WANKI, JS, delivered the Judgment of the Court. CASES REFERRED TO:- 1. 2. 3. 4. Nahar Investment Limited -Vs- Grindlays Bank International (Z) Limited (1984) ZR 81. Henry Chipale -Vs- Kabwe Municipal Council, SCZ 9 of 2000. Patel and Patel -Vs- Monile Holdings Company Limited SCZ 66 of 1993. Vas Sales Agencies Limited and Finsbury Investment Limited Norman Bloe Mbazima (Sued as caveator) and Registrar of Lands (1999) ZR 2. 5. Chikuta -Vs- Chipata Rural Council (1974) ZR 241. 6. Mobil Zambia -Vs- Msiska (1983) ZR 86. Jl • I STATUTES REFERRED TO:- 7. Supreme Court Rules, Chapter 25 of the Laws of Zambia, Sections 54, 55. By a Notice of Motion filed in this Court, Roy Situmbeko, the Appellant moved the Court for an Order to vary or reverse the decisions by a Single Judge of the Court to grant an application to dismiss an appeal for want of Prosecution, basing that decision on an affidavit filed by the Respondent's Counsel, and without taking into account the Appellant's reply and awarding costs to the Respondent. The grounds upon which the Appellant relied were deposed by Tresford Chali in the Affidavit in Support. The grounds are that on the 26 th February, 2013 he received a Ruling of Honourable Justice M. E. Wanki from the Marshal; the Honourable Justice Wanki in his Ruling blamed him for taking a Notice of Appeal to the Registrar of the High Court instead of the Registrar of the Industrial Relations Court although it was the Support Staff in the Office that did so; the Registrar of the High Court did not scrutinize or face vet the Notice of Appeal and the Supreme Court Registry Staff also just endorsed without scrutinizing; the Notice of Appeal was very J2 . ' clear that it was an appeal from the Industrial Relations Court and not the High Court, the learned Registrar or the Registry Staff should have noticed that; in the Ruling it was also stated that he should have withdrawn the Notice of Appeal upon becoming aware of the irregularity; the record shows that he became aware of the irregularity after the Statutory 30 days to appeal therefore, withdrawing the appeal with intentions to lodge a regular one meant he first had to obtain leave to appeal in order to secure the interest of his client and serve justice; as the Ruling and record shows on page 3, the Court was aware that he had applied for leave to appeal out of time before the Industrial Relations Court and was only waiting for the order; the record will show that he was assured by the Registrar of the Industrial Relations Court that the Chairman of the Industrial • Relations Court will grant leave; he was granted leave without even being heard; the Industrial Relations Court advised that he prepares new Notice and Memorandum of Appeal which he did and were duly filed in the Industrial Relations Court; the said Ruling also states that he should have applied before a Single Judge for amendment of the Notice of Appeal; he was aware that J3 the Notice of Appeal was improperly before the Supreme Court depriving the Single Judge jurisdiction; the said appeal being improperly before the Supreme Court cannot be said to have been duly entered in the appeal record, as held in the Ruling; the procedure he followed would not have resulted in there being two appeals relating to the same matter, as held, but that he would have first withdrawn the irregular Notice of Appeal • and then filed the new one out of time together with the Order granting him leave to do so; by virtue of the said Ruling, he has failed to file into the Supreme Court the Notice of Appeal and Order for leave to file out of time; to hold that the application for dismissal of the appeal was properly made, does not take into account the fact that the Respondent ignored the fact that for a Record of Appeal to be filed there is need for the Registrar's • Certificate of Record which Certificate could not be obtained from the Industrial Relations Court Registrar since they had no Notice of Appeal and the High Court Registrar who erroneously stamped the Notice of Appeal cannot certify a record for the Industrial Relations Court which has its own Registrar; and that in the premises he humbly requested this Court for an Order to J4 hear this Appeal, allow him to file the new Notice of Appeal, and its accompanying Order. Further, to the Affidavit in Support, Mr. Chali filed heads of argument. Counsel submitted that this case reveals a fortuitous circumstances hence making it an exceptional case . It was pointed out that this "fortuitous circumstance" was stated in the case of NAHAR INVESTMENT LIMITED -VS- GRINDLAYS - BANK INTERNATIONAL (Z) LIMITED. !1l Mr. Chali contended that the history of the case of NAHAR AND GRINDLAYS BANK (1) discloses a most unsatisfactory state of affairs. Counsel pointed out that the Notice of Appeal was filed late and necessitated an application for leave which was granted; the Appellant failed to lodge Record of Appeal within the • extended 60 days; almost a year later, the Respondent took out Summons to dismiss the appeal for want of prosecution and in the process of opposing that Summons, the Appellant sought and obtained an extension of 30 days. According to Counsel, the Respondent obtained exparte Order dismissing the appeal for want of prosecution; the Appellant made a further application JS for extension of time within which to lodge the Record of Appeal but it was never heard as the Master of the Supreme Court advised him to move the full bench; the Applicant, it transpired was unable to obtain a transcript of the proceedings from the High Court. It was argued that the fortuitous circumstance in that case as this Court explained, was that a formal order for dismissal was taken out. Mr. Chali submitted that the Respondent, it transpired, acted under the mistaken belief that when the Single Judge dismissed its application to dismiss the appeal and granted the Applicant an extension of 30 days, the Order made on that occasion had included a condition to the effect that should the Applicant default, the appeal would stand dismissed. No such "Unless Order" was made; the extension was granted. Counsel contended that there is a fortuitous circumstance as been defined by Oxford English Dictionary, as a happening by accident. Mr. Chali argued that in the case 1n casu, an appeal was lodged within time and a copy served on the Respondents; when the Appellant realized that the Notice was wrongly stamped by J6 the Registrar's steps were taken to rectify the error administratively by engaging Registrars at both Courts . Counsel contended that the Respondents did not notice the mistake on the Notice of Appeal as they would not have moved for want of prosecution. Mr. Chali argued that as an officer of the Court, it was important that the correct record is before this Court hence the steps to rectify the error before the Respondents applied to dismiss the action. Counsel submitted that the Court has always taken the view that justice can only be d one by having the matter heard on merit and that it is not in the interest of justice to deny a party the right to have his case heard . Reliance was placed on the cases of HENRY CHIPALE -VS KABWE MUNICIPAL COUNCIL (2l; PATEL AND PATEL -VS MONILE HOLDINGS COMPANY LIMITED (3l; VAS SALES AGENCIES LIMITED AND FINSBURY INVESTMENT LIMITED NORMAN BLOE MBAZIMA (Sued as caveator) AND REGISTRAR OF LANDS. (4 l Mr. Chali pointed out that the record will disclose that the Appellant came to this Court because he was not heard in the J7 IRC and that is his first ground of appeal. It was argued that justice can only be served if the Appellant is heard and his case determined on merit; if this appeal is dismissed, the Appellant would have lost a case without being heard on its merit. Counsel further pointed out that in paragraphs 14 and 15 of his Affidavit in Support, he has argued that this matter was improperly before the Single Judge and the order made was thus, irregular. The case of CHIKUTA -VS- CHIPATA RURAL COUNCIL (5) was cited in which this Court stated that:- "As the matter was not properly before him, the Judge had no jurisdiction to make the declarations requested even if he had been so disposed." Counsel argued that, the Appellant's hands were clean. Mr. Chali submitted that justice will be served if this Motion succeeds. It was pointed out that since the Notice of Appeal has been dismissed and the Appellant has in his possession an Order to file a new one from Industrial Relations Court (exhibit "TC2" and "TC3"), this gives him a tactical advantage, but he has not used it due to his respect of this Court. The case of MOBIL -VS- MSISKA (6 ) was cited where this Court held that J8 obtaining a tactical advantage by taking steps which are available in law is not an abuse of the Court process. Mr. Chali finally prayed that this Motion succeeds and the Appellant allowed to file the Notice of Appeal so his case can be heard on merit. In augmenting the heads of argument, Mr. Chali highlighted the various points in the heads of argument and the authorities referred to in the heads of argument. In response, the Respondent opposed the Motion upon the grounds deposed by Mr. Sydney Chisenga in the Affidavit in Opposition. The grounds are that: the issues raised in the Affidavit in Support relate to procedural matters and not to the merits of this matter; in relation to paragraph 5 of the affidavit and as a matter of fact, the Appellant failed to amend or make an application for leave to correct the Notice of Appeal which fact was not disputed by the Appellant's Counsel before the Single Judge of this Honourable Court; in any event, it was the Appellant's advocate that took the Notice of Appeal to the High Court Registrar instead of the Registrar of the Industrial Relations Court, a fact that the Appellants' advocates did not J9 dispute; in relation to paragraphs 6 and 7 of the affidavit, that this is mere speculation and that in fact , the responsibility of filing Court documents whether regular or irregular rest with responsible Counsel; in relation to paragraphs 8 to 13 of the affidavit, that the depositions refer to the Industrial Relations Court proceedings which proceedings have no bearing whatsoever, in the failure by the Appellant to file the Record of Appeal within the Statutory period; and that paragraphs 15 to 20 of the affidavit appear to contain legal arguments and are not factual. Other than the Affidavit in Opposition, Mr. Chisenga on behalf of the Respondent filed heads of argument. Counsel submitted that the Honourable Single Judge was on firm ground when he dismissed this appeal for want of prosecution. Mr. Chisenga contended that an Appellant should file its Record of Appeal within the statutory period of 60 days . Counsel pointed out that this law is unequivocal and is provided in Rule 54 of the Supreme Court Rules (7l which states that: "Subject to any extension of time and in any Order made under Rule 12, the Appellant shall within Sixty days after filing Notice of Appeal lodge the appeal by filing in the Registry five copies of Record of Appeal, JlO paying the prescribed fee and lodging in Court the Sum of two thousand fee units as security for costs of the appeal." Mr. Chisenga argued that the record will show that there is no dispute that the Appellant failed to lodge the appeal within 60 days. Further, the Appellant failed to apply to extend time in which to file the Record of appeal. Counsel noted that it was only when the Respondent applied to this Honourable Court to dismiss the appeal for want of prosecution that the Appellant attempted to give reasons. It was pointed out that Rule 55 of the Supreme Court Rules states that:- is not lodged as aforesaid the "If an appeal Respondent may make application to the Court for an Order dismissing for want of prosecution and, or alternatively, for such other Order in regard to the appeal as he may require." the appeal Mr. Chisenga submitted that this Honourable Court has on numerous occasions adjudged on this matter and Counsel referred the Court to NAHAR INVESTMENT LIMITED -VS GRINDLAYS BANK (1l which they cited in the application to dismiss the appeal for want of prosecution in which this Court held that:- Jl 1 (i) (ii) Appellants who sit back until there is an application to dismiss their appeal before making their own application for extension of time, do so at their own peril. In the event of inordinate delay or unfair prejudice to a Respondent, the Appellant can expect the appeal to be dismissed." Further, this Honourable Court went on to state that:- "We wish to remind Appellants that it is their duty to lodge Records of Appeal within the period allowed including any 'extended period'. If difficulties are encountered which are beyond their means to control (such as the non-availability of the notes of proceedings which it is the responsibility of the High Court to furnish), Appellants have a duty to make prompt application to the Court for enlargement of time. Litigation must come to an end and it is highly undesirable that the Respondents should be kept in suspense because of dilatory conduct on the part of Appellants. Indeed, as a general rule, Appellants who sit back until there is an application to dismiss their appeal, before making their own frantic application for an extension, do so at their own peril. If the delay has been inordinate or if in the circumstances of individual case, it appears that the delay appeal has resulted the Respondent being unfairly prejudiced in the enjoyment in his favour or in any other manner, the dilatory Appellant can expect the appeal to be dismissed for want of prosecution, notwithstanding that he has a valid and otherwise perfectly acceptable explanation." in Mr. Chisenga argued that the Appellant did not bother to apply to extend time and the reasons advanced for failure to file the Record of Appeal within the statutory period are not plausible as these reasons point to the failure by Counsel to act J12 prudently by failing to apply to amend or to correct the Notice of Appeal which for intents and purposes was regular in the absence of a contrary Order by this Honourable Court. It is on the strength of the foregoing that Counsel submitted that the Appellant has failed to demonstrate sufficient cause for this Honourable Court to sustain this application and he prayed that this application be dismissed with costs to the Respondent. We have considered the affidavit evidence ; the heads of argument on behalf of the parties and indeed, the Ruling of the Single Judge of this Court. From the evidence , the Appellant who was not satisfied with the decision of the Industrial Relations Court filed his appeal process in the High Court Registry instead of the Industrial Relations Court Registry and had the same filed in the Supreme Court Registry and further he failed to file the Record of Appeal within the statutory period, he also failed to apply for an extension of time in which to file the same. Subsequently, the Respondent applied to dismiss the appeal for want of prosecution. With the foregoing facts , the Single Judge of the Court cannot be faulted for deciding as he did. J13 The Appellant, upon realizing the mistake, was supposed to withdraw the Notice of Appeal that was filed in the High Court Registry instead of trying to apply for extension of time . In the circumstances, the Appellant cannot be entitled to the relief sought. We find no merit in the Motion. We, therefore , refuse the Motion for want of merit. We award costs to the Respondent which will be subject to taxation in default of agreement. H. Chibomba, SUPREME COURT JUDGE . . . . . . . . . . . . . . . . i c" • •• ••••••••••••• •• •• G. S. Phiri, ~ ~ -q.--L ········Ni. i . w;~ki:·········· SUPREME COURT JUDGE SUPREME COURT JUDGE . Jl4 :.:.~ --- ...,. ___ - -~7:'rrS::::--T.~ -::c::eRTt.=;"",.:;;,;.;3.eT 2lb:.2. IJFJ!Ri n £