Shalom Bus Services v Ali Mustapha Adow (CAZ 8 27 of 2018) [2018] ZMCA 397 (10 August 2018)

IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/027/2018 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: SHALOM BUS SERVICES APPELLANT AND ALI MUSTAPHA ADOW RESPONDENT Before the Hon. Mrs. Justice J. Z. Mulongoti In Chambers on the 10th day of August, 2018 For the Appellants: Dr. O. M. M. Banda of OMM Banda and Associates For the Respondent: Ms. M. Kosamu of MAK Partners. RULING Cases referred to: 1. D. E. Nkhuwa v. Lusaka Tyre Services Limited! 1997) ZR 43 2. Nahar Investment Limited v Grindlays Bank (1984) ZR 81 3. Collins Kingdom and 22 others v Trustees for Women for Change and Star Furniture Manufacturing Company Limited and another SCZ Appeal No. 46 Of 2011 4. John Sangwa, Simeza Sangwa and Associates v Hotellier Limited and another SCZ Appeal No. 402 of 2012 5. Twampane Mining Co-operative Society Limited v E and M Storti Mining Limited (2011) ZR 18 Legislation referred to: 1. Court of Appeal Rules (CAR) Statutory Instrument No. 65 of 2016 Orders XIII rules 2 and 3(3) and X rule 6 2. Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia section 37 This is an application by the appellant for leave to apply for an extension of time within which to file the Record of Appeal out of time pursuant to Order XIII rule 3 sub rule 3 of the Court of Appeal Rules (CAR) as read with section 37 of the Interpretation and General Provisions Act1. The application was supported by a combined affidavit in support of summons for an order for leave to apply for extension of time within which to file the Record of Appeal out of time pending application for an order for extension of time within which to file the Record of Appeal together with the Heads of Argument out of time pursuant to order XIII rule 3 sub rule 3 and R2 order XIII rule 3 sub rule 2 of CAR as read with section 37 of the Interpretation and General Provisions Act. The deponent is Dr. Overs Masozi Mufwakawiri Banda, the appellant's advocates. The gist of the affidavit is that the appellant filed the Notice and Memorandum of Appeal on 29th January 2018 and was supposed to file the Record of Appeal within the sixty days from that date. However, the appellant was unable to obtain a copy of the complete record of proceedings in the court below as the same is yet to be typed. Furthermore, that there is still a pending application in the court below. The delay to file the Record of Appeal is therefore neither deliberate nor by design but is beyond the control of the appellant who is desirous of pursuing the said appeal. Dr. Banda also filed the appellant's skeleton arguments in support of the application. He submitted that when a party is in breach of the Rules governing procedure, it is entirely discretionary for the Court to grant the application sought. Counsel referred to the Supreme Court decision in D. E. Nkhuwa v. Lusaka Tyre Services Limited1 per Gardner CJ (as then as) that: R3 “It is a regrettable fact that in recent years Legal Practitioners in the country have approached the need to comply with the rules as to time with the complete nonchalance. This court has had occasion in the past to comment adversely on the attitude of Legal Practitioners to compliance with other rules of procedure but is it time that all Legal Practitioner were made to understand that where the rules prescribe times within which steps must be taken these rules must be adhered to strictly and those practitioners who ignore them will so at their own peril. The provisions in the rules allowing for extensions of time are there to ensure that if circumstance prevail which make it impossible or even extremely difficult for parties to take procedural steps within prescribed times, relief will be given where the court is satisfied that circumstances demand it. It must be emphasised that before this court is able to exercise this discretion to grant this relief there must be material before it on which it can act” (Counsel' underlining emphasis) It is the further submission of counsel that the Court of Appeal has power to extend time as provided in Order XIII rule 3 (3) and Order XIII rule (l)(c). He also submitted that the Supreme Court has allowed extension of time in which to file a Record of Appeal in a plethora of cases like: 1. Nahar Investment Limited v Grindlays Bank2; 2. Collins Kingdom and 22 others v Trustees for Women for Change And Star Furniture Manufacturing Company Limited and another3; and R4 3. John Sangwa, Simeza Sangwa and Associates v Hotellier Limited and another4. It is argued that this is a fit and proper case for me to grant an order to extend time to file the Record of Appeal. For its part, the respondent filed an affidavit in opposition to the combined affidavit in support of summons for leave to apply for an extension of time. The deponent was Kapepe John Jnr of MAK Partners, the respondent's advocates. He deposed that the appellant filed the Notice of Appeal outside the stipulated period of thirty days, without leave of court. Perusal of the Notice of Appeal shows that it was signed by the District Registrar of the High Court at Livingstone on 22nd January, 2018 two days after the expiry of the thirty days period limited for filing an appeal by the rules of this court. It was further deposed that the omission to obtain leave to file the appeal out of time is fatal, and even if leave to file the Record of Appeal out of time is granted, it won’t cure the error. Accordingly, the Court R5 should dismiss the appeal for irregularity. Furthermore, that there has been undue delay in the filing of the application for extension of time as it has been filed seventy one days after the lapse of time which the Record of Appeal should have been filed. The parties filed written submissions, which I shall refer to where necessary. I have considered the affidavit evidence and also the record. I note that the appellant filed the Notice of Appeal on 22nd January, 2018 and the Memorandum of Appeal 29th January, 2018. The Judgment appealed against was delivered on 20th December, 2017. It is trite that when computing time for doing an act or making an application in court, the weekends are included in counting the days, contrary to Dr. Banda’s arguments. It follows in this case that thirty days expired on or about the 19th of January 2018. The counting starts from the next day after the Judgment which was the 21st of December 2017 in this case. The appellant was out of time by about three days and should have sought leave of court for extension of time to file the Notice and Memorandum of Appeal out of time. R6 within twenty-one days of the judgment or such time within which the application ought to have been made, unless leave of the court is obtained to file the application out of time" This therefore means that the appellant had twenty-one days after expiry of the sixty days to file the Record of Appeal, this ended on or about the 10th of April 2018. However, the appellant did not utilise this rule and slept on its rights as alluded to. Be that as it may, the appellant has an opportunity to seek an extension of time for sufficient reason under Order XIII rule 3 sub rule 3, which is one of the Orders it premised the present application on. Order XIII rule 3 sub rule 3 provides: "(3) The Court may for sufficient reason extend time for making an application, including an application for leave to appeal, or for bringing an appeal, despite the time limited having been expired, and whether the time limited for that purpose was so limited by the order of the Court, by these rules, or by any written law" I have discretion therefore to extend time for sufficient reason. Perusal of the affidavit in support shows that the main reason for the delay is that the record of proceedings is yet to be typed and that there is still a pending application in the court below. It was further R8 averred that the delay is neither deliberate nor by design but beyond the appellant's control. As can be seen from Order XIII rule 3(2) the appellant was entitled to a further twenty one days after expiry of the sixty days which essentially means it had eighty-one days in which to file the Record of Appeal. However, the appellant did not take advantage of this. An old adage says ignorance of the law is no defence. The appellant is ably represented by counsel who failed to make the necessary applications in accordance with the Rules of the Court. Even the present application was only made after the respondent applied to dismiss the appeal for want of prosecution. It took the appellant more than sixty days from expiry of the eighty-one days to apply for extension of time. I find the reasons advanced insufficient. The delay is inordinate and dilatory conduct by counsel is inexcusable. There must be an end to litigation. Those who ignore rules of the Court do so at their own peril. See the case of Twampane Mining Co-operative Society Limited v E and M Storti Mining Limited5 R9 The appellant’s contumelious disregard of the rules cannot be condoned. First, the Notice of Appeal was served out of time without leave of court and the reason given for delay in filing the Record of Appeal is not sufficient for me to exercise my discretion in its favour. In the net result the application for extension of time is denied with costs to the respondent to be taxed failing agreement. J. Z. MULONGdTI COURT OF APPEAL JUDGE RIO