Tabita Kamanga v Cellulant Zambia Limted (CAZ/08/407/2022) [2022] ZMCA 145 (20 December 2022)

IN THE COURT OF APPEAL FOR ZAMBIA AT THE LUSAKA DISTRICT REGISTRY HOLDEN AT LUSAKA ( Civil Jurisdiction) BETWEEN: ~~ UMIC OUIH CAZ/08/407/2022 TABITA K. AMANGA Appellant AND CELLULANT ZAMBIA LIMIT Respondent Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 20 December 2022 For the Appellant: For the Respondent: Mr. K. Ndlovu of Messrs Bemvi Associates No appearance Extempore Ruling Legislation ref erred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 o/2016 Cases referred to: 1. Nahar Investment Limited v Grindlays Bank International (Zambia) Limited (1984) ZR 81 This is respondent's application for an order to dismiss the action for want of prosecution made pursuant to Order 10 Rule 7 of the Court of Appeal Rules, S. I No. 65 of 2016. Rl It is supported by an affidavit of 29 November 2022 sworn by Ndlovu Kwazinkosi Counsel seized with conduct of the matter on behalf of the respondent. He deposes that the Hon. Judge Musonda delivered a judgment in favour of the appellant ordering payment of severance pay to the appellant on the 26 August 2022. Being dissatisfied with the said judgment, the appellant filed a notice of appeal and memorandum of appeal on the 27 September 2022. In terms of the Rules of this Court, the appellant ought to have filed a Record of Appeal on or before 27 November 2022. However, he conducted a search on the Court Record on the 29 November 2022 and discovered that the appellant had not done so contrary to the Rules of Court which prescribe a party to file a Record of Appeal within 60 days after filing a notice of appeal. The respondent's Counsel further contends that the appellant has not made any effort whatsoever to prosecute the appeal and the respondent is being prejudiced by incurring costs and being put to suspense of not knowing whether the matter is concluded. He urged the Court to dismiss this appeal. The appellant did not file an affidavit in opposition. As such, this application to dismiss the appeal for want of prosecution remains unopposed. R2 The appellant did file an application for an extension of time, which application was scheduled for hearing earlier but was struck out on account of the non- attendance of the appellant's Counsel to prosecute the application. I have considered the respondent's application and the affidavit evidence and submissions before me. The affidavit evidence clearly indicates that the appellant filed a notice of appeal on the 27 September 2022 and in accordance with the Rules of this Court ought to have filed the Record of Appeal before 27 November 2022. However, the appellant has not done so. There is no affidavit in opposition to this application to dismiss. The evidence in the application for leave to file the Record of Appeal out of time indicates that the appellant did not file the Record of Appeal within the time prescribed because he was unable to raise the funds to prepare the Record. Even though the appellant did not have the means to prepare the Record of Appeal, he ought to have filed an application for extension of time earlier and not wait until the time lapsed before doing so. He also should not have sat back until the respondent has brought this application to dismiss. The Rules of this Court under which this application has been brought i.e Order 10 Rule 7 of CAR. It provides that if an appeal is not lodged within the time stipulated under Rule 6, the respondent may apply to dismiss the appeal for want of prosecution. R3 It is not in dispute that the appellant has not complied with the Rules of this Court and that the Record of Appeal has not been filed within the stipulated time frame . It is also not in dispute that the appellant and his Counsel have not taken any steps to pursue their appeal. In the Nahar Investment v Grindlays Bank case, the Supreme Court pronounced that appellants who sit back until there is an application to dismiss their appeal before making their own application do so at their own peril. In view of the foregoing and the appellant's failure to comply with the Rules to file the Record of Appeal within the stipulated time or to actively pursue an extension of time to do so, I allow the respondent's application to dismiss the appeal for want of prosecution. The respondent cannot wait indefinitely for the appellant to take steps in the matter. The appeal accordingly stands dismissed for want of prosecution with costs to the respondent to be taxed in default of agreement. Dated at Lusaka this 20 December 2022. cCwarpe-Phi1f" COURT OF APPEAL JUDGE R4