Wendy Kabobo v Laston Lwanga and Anor (CAZ/08/188/2019) [2019] ZMCA 371 (6 December 2019)

. J-vo Rl IN THE COURT OF APPEAL FOR ZAMBIA CAZ/O8/ 188/2019 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: WENDYKABOBO AND LASTON LWANGA PELLIAS ILUNGA APPLICANT 1st RESPONDENT 2 nd RESPONDENT Before The Honourable Mrs. Justice P. C. M. Ngulube in Chambers. For the Applicant: W. Chitungu, Messrs Equitas Legal Practioners For the 1st Respondent: In person For the 2 nd Respondent: Deceased RULING Cases ref erred to: 1. Racheal Lungu Saka v Hilda Bwalya Chomba and Attorney General Appeal No CAZ/08/059/2017 Legislation referred to·: 1. The Court of Appeal Rules, Statutory Instrument No 65 of 2016 This is the applicant's application for summons for an order for extension of time within which to file a notice of appeal and a memorandum of appeal out of time. The application was made pursuant to Order 13 rule 3 subrule 3 of the Court of Appeal Rules 1 and is supported by an affidavit filed into court on 11 th November, 2019. The brief background to this application is that on 9 th September, 2016, the applicant commenced an action in the court below against the respondents claiming damages for permanent injuries inflicted on her by the negligent driving of a motor vehicle and refund of monies used for medical expenses and transportation to and from the hospital. On 25th October, 2017, Madam Justice Betty Majula entered judgment in favour of the applicant on all the claims made and referred the matter for assessment of damages to the Deputy Registrar. The judgm.ent on assessment for damages was delivered on 28 th December, 2018 granting the applicant damages amounting to twenty-three thousand, five hundred thirty-one Kwacha (K23, 531.00). Dissatisfied with the said judgment, the applicant intends to appeal before this Court hence this application before me. In the affidavit in support of this application, it is averred that whereas, the Judge in the High Court ordered that the applicant be granted damages for personal injuries on account of the negligence of the 2 nd respondent , the learned registrar on the other hand refused to award the applicant damages for permanent personal injuries, and only awarded her K2,513.00 as special damages, K20,000.00 as damages for pain and R2 suffering, and K.1000.00 as damages for loss of amenities thereby excluding an award for damages for personal injuries contradiction the judgment of the court below. It is averr,ed that by the Registrar refusing to award the applicant damages for personal injuries despite the ,Judge of the court below ordering it in her judgment, is an omission or refusal which amounts to a variation of the judgment of the High Court judge which is an error. It is averred that had the learned Registrar properly guided herself to the applicant's age, the impact of disability on the applicant's mental and physical health and her career, he could not have awarded the applicant the inordinate low damages in terms of the quantum. It was averred that although the Registrar may not have had the information on the rate of the applicant's medical disability, this court, on appeal may admit further evidence so as to ·meet the ends of justice. The deponent averred that the delay in obtaining the information on the rate of her medical disability was not deliberate but for the excruciating physical and mental illness she suffered, post the trial which affected her ability to properly instruct counsel to take further steps in respect of the judgments of the court be.low. That this Court has jurisdiction and discretion to grant the applicant a n order extending the time within which to lodge a notice of appeal and memorandum of appeal out of time. R3 .. II It is further averred that the delay in lodging the appeal before this court within the prescribed period of 30 days from the date of the Ruling of the lower court was neither deliberate nor meant to disregard the rules of this Court or to show disrespect to this court, but was due to circumstances beyond the applicant's control such as her physical and mental illness that kept deteriorating from time to time, all as a result of the accident. That the applicant's medical conditions worsened and caused her to immediately seek further medical attention including subjecting herself to psychiatric tests upon advice by my medical doctors from the University Teaching Hospital (UTH), in addition to physio-therapy which she has continued to undergo to date. It is averred that on 19th June, 2019, the applicant caused to be filed into this court an application for an order for leave to apply for extension of time within which to file Notice and Memorandum of appeal and that the said application was heard on 12 th August, 2019 and that this court granted leave to make an application for extension of time within which to file Notice of Appeal and Memorandum of appeal within thirty (30) days hence this application. In summation the deponent averred that the intended appeal has reasonably high prospects of success. The applicant also filed skeleton argument and list authorities in which it was contended that Order 13 rule 3 subrule 3 of the court of appeal rules 1 R4 .. gives this court discretionary powers, on sufficient reasons, to extend time for making an application for leave to appeal, or for bringing an appeal, or for taking any step in or in connection with any appeal, despite the time limited having expired. The Court was referred to the case of Racheal Lungu Saka v Hilda Bwalya Chomba and Attorney General 1 where this court held that the effect of Order 13 rule 3 subrule 3 is that once leave is granted, then the applicant can file an application for extension of time within which to file the record of appeal. It was submitted that in the present case, an application for an. order for leave to apply for extension of time within which to file notice of appeal and mem.orandum of appeal out of time was granted and hence this application. That it was due to circumstances beyond the application's control that the applicant failed to lodge the appeal on time. Counsel prayed that this court exercises its discretion and give the applicant a benefit of doubt. The 1st respondent filed an affidavit in opposition to affidavit in support of inter-parte summons for an order for extension of time within which to file a notice of appeal and memorandum of appeal out of time. In the said affidavit, the deponent, Mr. Laston Lwanga the 1s t respondent h erein averred that the only reason given by the a pplicant as to why she failed to file notice of appeal and memorandum of appeal before this court within RS .. the prescribed time frame is that she was physically and mentally ill and that her advocates from Legal Aid Board were not available to attend to her timely. That the reasons put across are not valid and that on l 9th January, 2019 when the applicant served him with the said letter, she was in good was health and physically fit. It is averred that a perusal of the medical reports exhibited by the applicant, reviews that the dates thereon are not within the time frame of 30 days from the date of the judgment on assessment as they fall out of the time frame. The deponent asked this court not to entertain the applicant's application as it lacks merit. At the hearing of the matter, Counsel for the applicant r,eHed on the affidavit in support of the application as well as skeleton arguments and list of authorities filed into court. The 1s t respondent could not say anything as he had just been served with the affidavit in support of the application's application. He however, told the court that he would file in an affidavit in opposition to the application. I have considered that record of appeal, the applicant's application, aH exhibited documents as well as the obtaining circumstances. It is not in dispute that the applicant did suffer injuries at the hands of the respondents. The applicant has exhibited evidence that she continues to undergo medical care for a condition which she developed as a result of the accident. R6 It is trite that this court is clothed with discretionary powers to extend time within which any party may take any step in or in connection with an appeal on sufficient reasons. This discretionary power must at all time be exercised judiciously in the interests of Justice. In light of the foregoing, I find sufficient reasons that would make me exercise my discretion to grant the applicant an order for extension of time within which to file the notice and memorandum of appeal. The applicant is hereby given seven days within which to file the said documents. Costs to be in the cause. Dated this the 6 th day of December, 2019. HONOURABLE MRS JUSTICE P. C. M NGULUBE COURT OF APPEAL JUDGE. R7 ..