Sarah Sakachoma v 15 MCC Africa Construction and Trade Limited (CAZ/08/219/2018) [2019] ZMCA 373 (11 July 2019)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/O8/ 219/2018 Rl HOLDEN AT LUSAKA {CIVIL JURISDICTION) BETWEEN: SARAH SAKACHOMA -------- ,. . ! ~ ~ -·-- ; - ) ... " ) - •' PELLANT AND EGt 15 MCC AFRICA CONSTRUCT! .c1J.,.._,1,.;Q;g.l,,jl'c:. I ESPONDENT LIMITED Before The Honour able Mrs. Just ice P. C. M . Ngulube i n Chambers. For the Appellant: Mr. P. Chomba, Messrs Mulenga Mundashi Kasonde For the Respondents: Mr. Cheelo, Mess r s MAK Pa rtners Legal Practitioners RULING Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No 65 of 2016 Cases referred to: 1. Zambia Revenue Authority vs. Jayesh Shah SCZ Judgment No. 10 of 2001 2. Twampane Mining Co-operative Society Limited v E and M Storti Mining Limited, S. C. Z. Judgment No. 20 of 2011 This is the Respondent's application for an Order to dismiss appeal for want of prosecution pursuant to Order 13 Rule 3(6) of the Court of Appeal Rules 1 . The brief background of this application is that, on 26th October, 2018 this Court granted the appellant leave to appeal R2 against the ruling of the court below. On 15th January, 2019, the appellant moved this Court on an application for extension of time within which to file the record of appeal and heads of argument. On 3 rd April, 2019, this Court exercised its discretion and granted the appellant a 30 day extension which elapsed and the appellant only filed the record of appeal and heads of argument on the 33 rd day. Owing to this, the respondent moved this Court to have the appeal dismissed for want of prosecution. The application is supported by an affidavit sworn by Cheelo Mwiinga Counsel seized with conduct of the matter. He avers that this Court made a ruling on 3 rd April, 2019, wherein it granted leave to the appellant to have an extension of time within which to file the record of appeal and heads of argument by thirty days with costs to the respondents. He avers that the appellant has failed , refused and or neglected to file the record of appeal and heads of argument in 30 days but on the thirty-third day. That a search conducted on the court file on 24 th May, 2019 shows that no leave to file the record of appeal and heads of arguments out of time was obtained for the court. He further avers R3 that the respondent could not conduct a search on time due to the fact that the Court of Appeal Registry was in the process of relocating hence their file could not be located by the registry staff. It is averred that it is clear that the appellant has failed to prosecute their case as this is the second time they have failed , refused and neglected to file the record of appeal and heads of argument within the stipulated time. That the heads of arguments and record of appeal are improperly before the court because no leave to file out of time was sought by the appellant. The d eponent asked this Court to dismiss the appeal for want of prosecution. In further support of their application, the respondent filed skeleton arguments and submitted that the record of appeal and skeleton arguments are improperly before this Court as the same were filed after the 30 days period granted by this Court and no leave of court was obtained. It was submitted that Order 13 rule 3(6) of the court of appeal rules prohibits the appellant from filing any notice of appeal or any application which is delivered after the expiration of the time or to make an application out of time has been obtained. It was the respondent's further submission that Order 13 rule 3(6) is couched R4 in mandatory form as regards to the requirement that leave of court must be sought. It was contended that the effect of filing the record and heads of argument out of time without leave of court is that the appeal and the heads of arguments are incompetent and liable to be dismissed. The court was referred to the case of Zambia Revenue authority v Jayesh Shah 1 in which the Supreme Court held that Cases should be decided on their substance and merit. The rules must be followed, but the effect of a breach will not always be fatal if the rule is merely regulatory or directory. Further the court was r eferred to the case of Twampane Mining Co operative Society Limited v E and M Storti Mining Limited2 in which it was h eld that- "It is important to adhere to Rules of Court in order to ensure that matters are heard in an orderly and expeditious manner. Those who choose to ignore Rules of Court do so at their own peril." RS In summation it was submitted that this is a proper case for this Court to exercise its powers to have this matter dismissed for want of prosecution. At the time of the hearing the appellant had not filed an affidavit in opposition and skeleton arguments. At the hearing, Mr. Cheelo, Counsel for the respondent relied on the affidavit in support of the application and skeleton arguments which I have summarised above. He submitted that the appellant was served with the affidavit in support of the application to dismiss the appeal for want of prosecution as well as skeleton arguments in support and that they have neglected to respond. He prayed that the respondent be allowed to enjoy the fruits of the judgment of the lower court as it is clear that the appellant has no intention of prosecuting the appeal. In response, Mr. Chomba, Counsel for the appellant agreed that they were indeed served with the affidavit in support as well as skeleton argument. He informed the court that they forwarded the said documents to their client and that they have been waiting for R6 instructions. He beseeched this court to give them time to obtain urgent instructions from their client. In response, Mr. Cheelo submitted that the application before court borders on a legal argument which has little to do with the client's instructions. He submitted that t h e contention is that the appellant failed to file the record of appeal and heads of argument as stipulated by the rules of court and as this Court ruled on 3 rd April, 2019. He prayed that the appellant's application be dismissed because it is premised on wasting the court's time and delay justice. Before I consider this application, I wish to point out that the law on which the respondent's application is anchored on is not correct. The correct provision is Order 10 Rule 7 of the Court of Appeal Rules 1 which provides that- If an appeal is not lodged within the time stipulated under rule 6 , the respondent may make an application to the Court for an order dismissing the appeal for want of prosecution, or alternatively, for such other order with regard to the appeal as the respondent may require. R7 I have considered the application before me, affidavit eviden ce and skeleton arguments . From the background of this application It is clear that the appellant is not desirous to prosecute the appeal. It is on record that the appellant was given 30 days within which to file their record of appeal and heads of argument out of time. Order 13 Rule 2(a) of the Court of Appeal Rules 1 provides that- A period of time fixed by these Rules or by any decision of the Court for doing any act shall be reckoned in accordance with the following provisions: (a)period of days from the happening of an event or the doing of an act shall be considered to be exclusive of the day on which the event happens or that act is done. In casu, the Ruling delivered on 3 rd April, 2019, 30 days started running from the 4 t h April, 2019 and lapsed without the appellant filing the record of appeal and heads of argument. In the case of Naher Investment Limited V Grindlays Bank Limited 1 the Supreme Court held that- R8 "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 casu the appellant should have applied for a further extension of time when they noticed that they were running out of time. I agree with Mr. Cheelo's sentiments that the application before this Court involves legal arguments which counsel need not obtain instruction from its client. The appellant's application for more time to obtain instructions is accordingly dismissed for lack of merit. Furthermore, the appellant's affidavit in opposition and skeleton arguments which were filed on 26 th June, 2019 have not been considered. This appeal is accordingly dismissed for want of prosecution with costs to t h e respondent, to be taxed in default of agreement. Dated this the 11 t h day of July, 2019. HONOURABLE MRS JUSTICE P. C. M NGULUBE COURT OF APPEAL JUDGE.