Seventh- Day Adventist Association in Zambia- Registered Trustees v Pastor Mumba Nsanta (CAZ/08/250/2017) [2017] ZMCA 171 (28 November 2017)

CAZ/08/250/2017 IN THE COURT OF APPEAL FOR ZAMBIA IN THE COURT OF APPEAL FOR ZAMBIA CAZ/08/250/2017 HOLDEN AT LUSAKA HOLDEN AT LUSAKA (Civil Jurisdiction) (Civil Jurisdiction) '. ;7:o,~· \"-..• ·""' ?. AM COURT Or .,,,,- COUR. T Oi- APP,:: .• ~ 'l f , /~ ~ BETWEEN: BETWEEN: 2BN-~ \ ov 20ft -~ t 2 8 NOV 201/ SEVENTH-DAY ADVENTIST’a^S-QC^ION —= PPELLANT SEVENTH-DAY ADVENTIST•~-QC¼,110~ ~ - -~;""'."--_ --- PPELLANT IN ZAMBIA-REGISTERED TRUSTEES ' tG|STRY 1 IN ZAMBIA-REGISTERED TRUSTEES' 'cGISTRY1 --- · - 1~ , 1 usP..11!-~ i.usw£ .. ----~.--- (:- ~ AND AND PASTOR MUMBA NSANTA PASTOR MUMBA NSANTA RESPONDENT RESPONDENT Before Justice F. M. Chishimba in Chambers. Before Justice F. M. Chishimba in Chambers. : Mr. G. Nyirongo of Messrs Nyirongo & Co whose For the Appellant For the Appellant : Mr. G. Nyirongo of Messrs Nyirongo & Co whose Agents are Messrs SLM Legal Practitioners Agents are Messrs SLM Legal Practitioners : Mr. C. Sianondo of Messrs Malambo & Co For the Respondent : Mr. C. Sianondo of Messrs Malambo & Co For the Respondent RULING RULING CASES REFERRED TO: CASES REFERRED TO: 1. Chola Chama Vs. ZESCO Limited SCZ Judgment No. 20 of 2008 1. Chola Chama Vs. ZESCO Limited SCZ Judgment No. 20 of 2008 2. Kitwe City Council Vs. William Ng'uni (2005) Z. R. 57 (S. C.) 2. Kitwe City Council Vs. William Ng’uni (2005) Z. R. 57 (S. C.) 3. Grindlays Bank International (Z) Limited Vs. Nahar Investments Limited 3. Grindlays Bank International (Z) Limited Vs. Nahar Investments Limited ( 1990-1992) ZR 86 (1990-1992) ZR 86 4. Sonny Paul Mulenga and Others Vs. Investrust Merchant Bank Limited 4. Sonny Paul Mulenga and Others Vs. Investrust Merchant Bank Limited (1999) Z. R. 101 (1999) Z. R. 101 5. Philip Muntantika and Another Vs. Kenneth Chipungu SCZ ,Judgment No. 5. Philip Muntantika and Another Vs. Kenneth Chipungu SCZ Judgment No. 13of2014 13 of 2014 6. Twampane Mining Co- operative Society Limited Vs. E and M Storti Mining 6. Twampane Mining Co- operative Society Limited Vs. E and M Storti Mining Limited (2011) ZR Limited (2011) ZR 7. Dr. Sylvester Mashamba Vs. The Council of the Coppcrbelt University 7. Dr. Sylvester Mashamba Vs. The Council of the Coppcrbelt University SCZ/8/262/2011 SCZ/8/262/2011 8. D. E Nkhuwa vs Lusaka Tyre Services Limited (1977) ZR 43 (SC) 8. D. E Nkhuwa vs Lusaka Tyre Services Limited (1977) ZR 43 (SC) 9. Stanbic Bank Zambia Limited vs Savenda Management Services Limited 9. Stanbic Bank Zambia Limited vs Savenda Management Services Limited (2016) CAZ/08/040 (2016) CAZ/08/040 -R2- -R2- LEGISLATION AND OTHER WORKS REFERRED TO: LEGISLATION AND OTHER WORKS REFERRED TO: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 the The Appellant seeks leave of the Court to file The Appellant seeks leave of the Court to file the application for extension of time to appeal out of time made application for extension of time to appeal out of time made pursuant to Order 13 Rule 2 of the Court of Appeal Rules, pursuant to Order 13 Rule 2 of the Court of Appeal Rules, Statutory Instrument Number 65 of 2016. The Applicant further Statutory Instrument Number 65 of 2016. The Applicant further sought a stay of execution of Judgment on assessment made sought a stay of execution of Judgment on assessment made pursuant to Order 10 Rule 5 of the Court of Appeal Rules, pursuant to Order 10 Rule 5 of the Court of Appeal Rules, Statutory Instrument Number 65 of 2016. The applications were Statutory Instrument Number 65 of 2016. The applications were supported by affidavits dated 18th September, 2017 and 25th supported by affidavits dated 18th September, 2017 and 25th September, 2017. September, 2017. The Respondent obtained Judgment on assessment in The Respondent obtained Judgment on assessment in which he was awarded the sums of ZMW 1, 695, 505. 77 and ZAR which he was awarded the sums of ZMW1, 695, 505.77 and ZAR 93, 430.28 stemming from a Judgment dated 25 th April, 2016. The 93, 430.28 stemming from a Judgment dated 25th April, 2016. The Appellant engaged new advocates, who advised that they ought to Appellant engaged new advocates, who advised that they ought to have appealed against the Judgment of the Court which ordered the have appealed against the Judgment of the Court which ordered the reinstatement of the Respondent, payment of all his salaries and reinstatement of the Respondent, payment of all his salaries and perks during the period of his absence upto the date of the actual perks during the period of his absence upto the date of the actual reinstatement. It was deposed that the Appellant has been advised reinstatement. It was deposed that the Appellant has been advised -R3- -R3- by its current advocates that the order made by the lower court by its current advocates that the order made by the lower court amounts to unjust enrichment. amounts to unjust enrichment. The Applicant stated that it did not apply to appeal on The Applicant stated that it did not apply to appeal on time owing to the fact that its previous advocates did not guide the time owing to the fact that its previous advocates did not guide the Appellant on the law, to the effect that an employee cannot be paid Appellant on the law, to the effect that an employee cannot be paid for the period they did not work. Since the law is settled that an for the period they did not work. Since the law is settled that an the employee cannot be paid for the period not worked for, employee cannot be paid for the period not worked for, the Appellant's appeal is meritorious. The Appellant therefore, seeks the Appellant’s appeal is meritorious. The Appellant therefore, seeks the indulgence of the Court to stay the execution of the Judgment on indulgence of the Court to stay the execution of the Judgment on assessment pending the determination of the application to appeal assessment pending the determination of the application to appeal out of time. out of time. The Respondent filed into Court a combined affidavit in The Respondent filed into Court a combined affidavit in opposition. It was stated that the Appellant failed or neglected to opposition. It was stated that the Appellant failed or neglected to appeal against the Judgment of the lower Court but instead applied appeal against the Judgment of the lower Court but instead applied to settle the Judgment debt in installments. The lower Court to settle the Judgment debt in installments. The lower Court granted the sought order and the Appellant was given a period of 6 granted the sought order and the Appellant was given a period of 6 months within which to pay the Judgment debt. The Appellant months within which to pay the Judgment debt. The Appellant ought to have made its final payment on or by 31st Januaiy, 2017. ought to have made its final payment on or by 31 st January, 2017. No single payment was made by the Appellant. Further, an order No single payment was made by the Appellant. Further, an order -R4- -R4- was made to the effect that the matter proceeds to assessment by was made to the effect that the matter proceeds to assessment by the Deputy Registrar. the Deputy Registrar. It was deposed that the Appellant now seeks to appeal It was deposed that the Appellant now seeks to appeal against the initial Judgment despite the fact that there has been a against the initial Judgment despite the fact that there has been a Judgment on Assessment. Further, that the allegation that the Judgment on Assessment. Further, that the allegation that the delay to lodge the appeal was as a result of the advice of its then delay to lodge the appeal was as a result of the advice of its then Advocates cannot not be a reason to allow the application as the Advocates cannot not be a reason to allow the application as the relationship between the Appellant and its Advocates is not a relationship between the Appellant and its Advocates is not a concern of the Court. concern of the Court. It was stated that the Appellant had made an application It was stated that the Appellant had made an application to file its appeal out of time which was declined with leave to appeal to file its appeal out of time which was declined with leave to appeal in a Ruling dated 11 th July, 2017. The Appellant ought to have in a Ruling dated 11th July, 2017. The Appellant ought to have appealed against the decision of the lower Court within 14 days. appealed against the decision of the lower Court within 14 days. The Appellant only made the application on 18th September, 2017. The Appellant only made the application on 18th September, 2017. In addition, that the Judgment that the Appellant seeks to appeal In addition, that the Judgment that the Appellant seeks to appeal against was delivered about 17 months ago. against was delivered about 17 months ago. The Respondent stated that the application before Court The Respondent stated that the application before Court is tantamount to an abuse of court process. The Appellant merely is tantamount to an abuse of court process. The Appellant merely seeks to avoid the Judgment of the Court below and the resultant seeks to avoid the Judgment of the Court below and the resultant -RS- -re­ assessment by the Deputy Registrar. Further, that the applications assessment by the Deputy Registrar. Further, that the applications are meant to deprive the Respondent of the fruits of the Judgment. are meant to deprive the Respondent of the fruits of the Judgment. In addition, that the Appellant's appeal has no prospects of success In addition, that the Appellant’s appeal has no prospects of success as the Respondent was properly reinstated by the court below. as the Respondent was properly reinstated by the court below. It was further stated that the applications are improperly It was further stated that the applications are improperly before the Court as the issues raised now ought to have been raised before the Court as the issues raised now ought to have been raised in the main appeal and not on a renewal of the application before in the main appeal and not on a renewal of the application before the Court. The Court was urged to dismiss the applications and the Court. The Court was urged to dismiss the applications and discharge the order for stay of execution. discharge the order for stay of execution. In reply, the Appellant stated that though the intended In reply, the Appellant stated that though the intended appeal was made after the expiration of the 30 day period, the appeal was made after the expiration of the 30 day period, the Courts frown upon the paying of an employee for the period not Courts frown upon the paying of an employee for the period not worked. Further, that the Appellant could not make any payments worked. Further, that the Appellant could not make any payments as per the order dated 25 th July, 2016 owing to the fact that the as per the order dated 25th July, 2016 owing to the fact that the for Respondent Respondent served the Appellant with an application for the Appellant with an application served assessment which culminated into the Judgment on assessment. assessment which culminated into the Judgment on assessment. The Appellant has not appealed against the Judgment on The Appellant has not appealed against the Judgment on assessment owing to the fact that it intended to appeal against the assessment owing to the fact that it intended to appeal against the main Judgment. Further, that the issues raised by the Appellant main Judgment. Further, that the issues raised by the Appellant -RS- -R6- are points of law which can be raised at any stage of the are points of law which can be raised at any stage of the proceedings. In addition, that the Appellant's appeal is meritorious. proceedings. In addition, that the Appellant’s appeal is meritorious. Further that the applications by the Appellant are not meant to Further that the applications by the Appellant are not meant to frustrate the Respondent's eagerness to enjoy the fruits of his frustrate the Respondent’s eagerness to enjoy the fruits of his judgment but is simply meant to ensure that the judgment complies judgment but is simply meant to ensure that the judgment complies with the case law set by the Supreme Court. with the case law set by the Supreme Court. When the matter came up for hearing, Counsel for the When the matter came up for hearing, Counsel for the parties made viva voce submissions. Counsel for the Appellant, Mr. parties made viva voce submissions. Counsel for the Appellant, Mr. Nyirongo submitted that the Supreme Court in the cases of Chola Nyirongo submitted that the Supreme Court in the cases of Chola Chama Vs. ZESCO Limited f1J and Kitwe City Council Vs. William Ng'uni Chama Vs. ZESCO Limited W and Kitwe City Council Vs. William Ng’uni t2J stated that an employee ought not to be paid for a period not (2> stated that an employee ought not to be paid for a period not worked for. Counsel argued that the Court ought to consider the worked for. Counsel argued that the Court ought to consider the application despite it coming late in the day owing to the fact that it application despite it coming late in the day owing to the fact that it seeks to cure an illegality. Counsel argued that this was the view seeks to cure an illegality. Counsel argued that this was the view taken by the Supreme Court in Grindlays Bank International (Z) taken by the Supreme Court in Grindlays Bank International (Z) Limited Vs. Nahar Investments Limited f3J· Limited Vs. Nahar Investments Limited (3>- the application for stay of execution, With regards With regards the application for stay of execution, Counsel for the Appellant cited the case of Sonny Paul Mulenga and Counsel for the Appellant cited the case of Sonny Paul Mulenga and Others Vs. Investrust Merchant Bank Limited f4J in which the Supreme Others Vs. Investrust Merchant Bank Limited W in which the Supreme Court stated that before a stay of execution is granted the Court Court stated that before a stay of execution is granted the Court -R7- -R7- ought to preview the prospects of success. It was argued that the ought to preview the prospects of success. It was argued that the appeal has prospects of success warranting the grant of the sought appeal has prospects of success warranting the grant of the sought Orders. Orders. In response, Counsel for the Respondent, Mr. Sianondo, In response, Counsel for the Respondent, Mr. Sianondo, argued that the Court ought to dismiss the applications as the argued that the Court ought to dismiss the applications as the the the delay allege reason advanced reason advanced for the delay allege incompetence on the incompetence on for Appellant's previous advocates. Counsel for the Respondent argued Appellant’s previous advocates. Counsel for the Respondent argued that dealings between a lawyer and his client is not a concern of the that dealings between a lawyer and his client is not a concern of the Court. As authority, Counsel cited the decision of the Supreme Court. As authority, Counsel cited the decision of the Supreme Court in Philip Muntantika and Another Vs. Kenneth Chipungu rsJ. Court in Philip Muntantika and Another Vs. Kenneth Chipungu <5>. Counsel further argued that the delay in making the application by Counsel further argued that the delay in making the application by the Appellant is inordinate. I was referred to the case of Twampane the Appellant is inordinate. I was referred to the case of Twampane Mining Co- operative Society Limited Vs. E and M Storti Mining Limited (6 J Mining Co- operative Society Limited Vs. E and M Storti Mining Limited <6) where the Supreme Court stated that applications for extension of where the Supreme Court stated that applications for extension of time ought to be made promptly. I was also referred to the case of time ought to be made promptly. I was also referred to the case of Dr. Sylvester Mashamba Vs. The Council of the Copperbelt University (7J Dr. Sylvester Mashamba Vs. The Council of the Copperbelt University (7) where the Supreme Court refused to restore an appeal following a where the Supreme Court refused to restore an appeal following a delay of 6 months. delay of 6 months. Counsel argued that the case of Chola Chama Vs. ZESCO Counsel argued that the case of Chola Chama Vs. ZESCO Limited i1) does not support the Appellant’s applications. Further, Limited r11 does not support the Appellant's applications. Further, -R8- -R8- that the case of Kitwe City Council Vs. William Ng'uni r21 is inapplicable that the case of Kitwe City Council Vs. William Ng’uni is inapplicable herein as it did not deal with a reinstatement. The Court was urged herein as it did not deal with a reinstatement. The Court was urged to dismiss the applications with costs. to dismiss the applications with costs. Counsel for the Appellant in response contended that the Counsel for the Appellant in response contended that the blame is not being placed on the Appellant's previous advocates but blame is not being placed on the Appellant’s previous advocates but on the fact that an illegality was discovered at a late stage. Further, on the fact that an illegality was discovered at a late stage. Further, that the Court of Appeal Rules under Order 13 Rule 3 (2) allow a that the Court of Appeal Rules under Order 13 Rule 3 (2) allow a party to make an application despite being out of time. party to make an application despite being out of time. I have considered the application for leave to file the I have considered the application for leave to file the application for extension of time within which to appeal and for a application for extension of time within which to appeal and for a stay of execution. I will first determine the application for leave to stay of execution. I will first determine the application for leave to file an application for extension of time within which to appeal as file an application for extension of time within which to appeal as the latter application is dependent on the outcome of the former. the latter application is dependent on the outcome of the former. On the 25 th of April, 2016, the High Court delivered a On the 25th of April, 2016, the High Court delivered a judgment in favour of the Respondent ordering that he be paid judgment in favour of the Respondent ordering that he be paid salary and perks during the period of his absence up to the date of salary and perks during the period of his absence up to the date of reinstatement. The parties proceeded for assessment and judgment reinstatement. The parties proceeded for assessment and judgment on assessment was delivered on 8 th May, 2016. The applicant then on assessment was delivered on 8th May, 2016. The applicant then applied to pay the judgment sum within six months. By Order of applied to pay the judgment sum within six months. By Order of -R9- -R9- the Court dated 25th July, 2016 the applicant was given six months the Court dated 25th July, 2016 the applicant was given six months within which to settle the judgment sum. The Applicant now seeks within which to settle the judgment sum. The Applicant now seeks leave of the Court to file the application for extension of time to leave of the Court to file the application for extension of time to appeal out of time. The basis being that their previous Advocates appeal out of time. The basis being that their previous Advocates had not advised them accordingly with effect to the principle of law had not advised them accordingly with effect to the principle of law on payment of salaries and perks for during the period of absence on payment of salaries and perks for during the period of absence up to reinstatement. up to reinstatement. It is trite law that the Court has the discretional power to It is trite law that the Court has the discretional power to grant an order for extension of time within which to appeal. The grant an order for extension of time within which to appeal. The Court will only grant such an order upon being furnished with Court will only grant such an order upon being furnished with sufficient reasons. In the case of D. E Nkhuwa vs Lusaka Tyre Services sufficient reasons. In the case of D. E Nkhuwa vs Lusaka Tyre Services Limited rsJ the Supreme Court stated that; Limited & the Supreme Court stated that; "The granting of an extension of time within which to appeal is “The granting of an extension of time within which to appeal is entirely in the discretion of the Court, but such discretion will not entirely in the discretion of the Court, but such discretion will not be exercised without good cause. In addition to the circumstances be exercised without good cause. In addition to the circumstances of the delay and the reasons therefore which provide the material of the delay and the reasons therefore which provide the material on which the Court may exercise its discretion another most on which the Court may exercise its discretion another most important factor is the length of the delay itself'' important factor is the length of the delay itself’ The reasoning of the Supreme Court was echoed by this The reasoning of the Supreme Court was echoed by this Court in the case of Stanbic Bank Zambia Limited vs Savenda Court in the case of Stanbic Bank Zambia Limited vs Savenda Management Services Limited f9J where the Court stated that; Management Services Limited P) where the Court stated that; -R10- -RIO- "Therefore, in determining an application for extension of time “Therefore, in determining an application for extension of time the within which to appeal, the Court will have regard to within which to appeal, the Court will have regard to the circumstances of the delay, the reasons for the delay, and the circumstances of the delay, the reasons for the delay, and the length of the delay. Further, it will in certain instances look at the length of the delay. Further, it will in certain instances look at the merits of the proposed appeal.” merits of the proposed appeal." It is trite law that a successful litigant must only be It is trite law that a successful litigant must only be denied the enjoyment of the fruits of a Judgment on compelling denied the enjoyment of the fruits of a Judgment on compelling grounds. Though I am vested with the discretion to order a stay of grounds. Though I am vested with the discretion to order a stay of execution, there must be sufficient grounds warranting such an execution, there must be sufficient grounds warranting such an order. order. that; that; Order 10 Rule 5 of the Court of Appeal Rules provides Order 10 Rule 5 of the Court of Appeal Rules provides "An appeal shall not operate as a stay of execution or of “An appeal shall not operate as a stay of execution or of proceedings under the Judgment appealed against unless the High proceedings under the Judgment appealed against unless the High the Court so orders and no Court, quasi-judicial body or Court, quasi-judicial body or the Court so orders and no intermediate act or proceeding shall be invalidated, except so far intermediate act or proceeding shall be invalidated, except so far as the Court may direct. ” as the Court may direct." The learned authors of Odgers on civil Court Action The learned authors of Odgers on civil Court Action 24th Edition at page 460 paragraph 24.47 state that; 24th Edition at page 460 paragraph 24.47 state that; "Although the Court will not without good reasons delay a “Although the Court will not without good reasons delay a successful Plaintiff in obtaining the fruits of his judgment, it has successful Plaintiff in obtaining the fruits of his judgment, it has power to stay execution if justice requires that the Defendant power to stay execution if justice requires that the Defendant should have this protection.” should have this protection." -Rl 1- -Rll- In respect of the leave sought to file the application for In respect of the leave sought to file the application for extension of time within which to appeal, I have considered the extension of time within which to appeal, I have considered the I am of the view that the alleged reasons advanced for the delay. reasons advanced for the delay. I am of the view that the alleged incompetence of the former Advocates has nothing to do with the incompetence of the former Advocates has nothing to do with the It is a professional relationship between a litigant and its Court. Court. It is a professional relationship between a litigant and its Advocates and of no concern to the Court. I echo the sentiments of Advocates and of no concern to the Court. I echo the sentiments of the Supreme Court in the cited case of Philip Mutantika and Mulyata the Supreme Court in the cited case of Philip Mutantika and Mulyata Sheal S. Vs Kenneth Chipungu f5J in which it was stated that; Sheal S. Vs Kenneth Chipungu (5> in which it was stated that; "Although it has also been argued and spiritedly so, if we may say, “Although it has also been argued and spiritedly so, if we may say, that the Appellant should not be prejudiced by the default of their that the Appellant should not be prejudiced by the default of their Counsel and/or his negligence or incompetence, our firm position Counsel and/or his negligence or incompetence, our firm position has always been that the relationship between a party and his has always been that the relationship between a party and his lawyer is of no concern of the court as that is a private matter lawyer is of no concern of the court as that is a private matter which has nothing to do with the court. Hence, it cannot be used which has nothing to do with the court. Hence, it cannot be used as a ground for ordering restoration of an appeal that was as a ground for ordering restoration of an appeal that was dismissed due to absence of the Appellants and their legal Counsel. dismissed due to absence of the Appellants and their legal Counsel. Surely, the incompetence or negligence of one's legal Counsel Surely, the incompetence or negligence of one’s legal Counsel cannot be sufficient ground for restoring an Appeal that was cannot be sufficient ground for restoring an Appeal that was dismissed. ” dismissed." Therefore, the reasons advanced cannot be the basis for Therefore, the reasons advanced cannot be the basis for granting leave to file the application for an extension of time. granting leave to file the application for an extension of time. Further the conduct of the Applicant in the Court below does not, to Further the conduct of the Applicant in the Court below does not, to me, suggest any desire to appeal. me, suggest any desire to appeal. -R12- -R12- The facts reveal that upon delivery of the judgment, no The facts reveal that upon delivery of the judgment, no appeal was filed. The Applicant instead even participated in the appeal was filed. The Applicant instead even participated in the the Learned Registrar without assessment proceedings before assessment proceedings before the Learned Registrar without indicating dissatisfaction with the judgment subject of assessment. indicating dissatisfaction with the judgment subject of assessment. The Applicant further applied to have the judgment sum paid in The Applicant further applied to have the judgment sum paid in instalments. Upon failure to meet the deadline, it launched an instalments. Upon failure to meet the deadline, it launched an application for leave to appeal out of time which was refused by the application for leave to appeal out of time which was refused by the lower Court. lower Court. Certainly, a delay of over a year from date of judgment in Certainly, a delay of over a year from date of judgment in April, 2016 till date of application for leave to appeal out of time is April, 2016 till date of application for leave to appeal out of time is inordinate delay which I cannot condone. inordinate delay which I cannot condone. There must be finality to litigation. Litigants desirous of There must be finality to litigation. Litigants desirous of appealing must do so within the stipulated time frames and appealing must do so within the stipulated time frames and extensions to appeal out of time must be made within a reasonable extensions to appeal out of time must be made within a reasonable I will therefore not belabor the time without inordinate delay. time without inordinate delay. I will therefore not belabor the arguments on the merit of the substantive appeal. arguments on the merit of the substantive appeal. For the foregoing reasons, the application for leave to file For the foregoing reasons, the application for leave to file application to appeal out of time fails. The ex-parte order of stay of application to appeal out of time fails. The ex-parte order of stay of -R13- -R13- execution is, without stating the obvious, discharged. Costs to the execution is, without stating the obvious, discharged. Costs to the Respondent. Respondent. Dated the 28th day of November, 2017 Dated the 28th day of November, 2017 Hon. Mrs. Justice F. M. Chishimba Hon. Mrs. Justice F. M. Chishimba COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE