Zambia Sugar (Z) Plc v Boyd Sikalia (CAZ/08/417/2022) [2023] ZMCA 385 (20 February 2023)

IN THE COURT OF APPEAL FOR ZAMBIA AT THE LUSAKA DISTRICT REGISTRY HOLDEN AT LUSAKA ( Civil Jurisdiction) AZ/08/417/2022 BETWEEN: ZAMBIA SUGAR (Z) PL ._( ~ 7 ~ \ Appellant .l 2 0 FE!J 20?3 4-j /~10 rA~~ ~~ \ )~ AND "'---civi L EoisTRYI / ,/ '-:'~-~1> : :;/ ~,--~~~_soq~?.:.1\~~~-- --· Respondent BOYD SIKALIA Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 20t h February 2023 For the Appellant: Mr. A. Tembo of Messrs Tembo Ngulube & Associates For the Respondent: Mr. C . Bwalya of Messrs KBF & Partners RULING Legislation referred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 of 2 016 Cases ref erred to : 1. John Kunda (suing as country director of an on b ehalf of the Adventist Development and relief agency) v Keren Motors (Z) Limited (2012) 2 ZR 228 (SCZ Judgment No. 14 of 2012) 2. Legal Recourse s Foundation Limited v Norwegian Ministry of Foreign Affairs (CAZ/ 08 / 314 / 2017) 3. Zambia Telecommunication Company Limited v Ire ne Simate & Others3 , 4. Stanbic Bank (Z) Limited v Savenda Management Services Limited (2016 / CAZ/ 08 / 040) 5. D. E. Nkhuwa v Lusaka Tyre Services Limited (1977) ZR 43 (SCZ) 6. Nahar Investment Limited v Grindlays Bank International (Zambia) Limited (1984) ZR 81 7. Twampane Mining Co-operation Society Limite d v E and M Storti Mining Limited (2011) 3 ZR 67, (SCZ) Judgment No. 20 of 2011 Rl 8. Access Bank (Z) Limited v Group Five/ZCON Business Park Joint Venture (suing as a firm}, (2016) ZMSC 24 9. Standard Chartered Bank Plc v John Banda SCZ Appeal No. 94 of 2015 10. Henry Kapoko v The People (2016) ZMCC 6 11. Chakaka Village Country House Limited & 2 Others v African Banking Corporation (Z) Limited - Selected Judgment No. 5 of 2018. 12. Rachel Lungu Saka v Hilda Bwalya Chomba, Appeal No. CAZ/ 8/ 59/2017 This is a Ruling on the Respondent's application brought on 30 January 2023 for an order to dismiss the action for want of prosecution. The Summons was made pursuant to Order 10 Rule 7 of the Court of Appeal Rules, (CAR) Statutory Instrument No. 65 of 2016. The application is supported by an affidavit sworn by Chibowa Moses Bwalya, counsel seized with conduct of the matter on behalf of the Respondent. He deposed that the matter emanates from a judgment of Sinyangwe, J of 30 August 2022 in which the Respondent was awarded damages for unfair and unlawful dismissal, damages for inconvenience, interest, and legal costs. Further, that the Appellant being dissatisfied with this decision, lodged a Notice and Memorandum of Appeal on 22 September 2022 and had up to 22 November 2022 (i.e., 60 days) to file its Record of Appeal and Heads of Argument. However, the Appellant failed to lodge these documents within the time prescribed but the Appellant was granted a 45-day extension of time from 9 December 2022 up to 23 January 2013. In total, the Appellant had about 123 days within which to lodge its Record of Appeal and Heads of Argument. R2 On 23 January 2023, the Appellant sought a further extension of time ex-parte citing the non-receipt of typed proceedings for non-compliance and the closure of its chambers. The Court denied the application in a ruling of 25 January 2023. Counsel stated that they learned that on 27 January 2023, the Appellant again applied ex-parte for leave for extension of time, despite the Court's ruling that dismissed its earlier application. Counsel stated that the Appellant had enough time to comply with the Court Rules and extension order. Further, that following the dismissal of the Appellant's second and third applications for an extension of time, there is currently no appeal pending determination before this Court due to the Appellant's failure to comply with the Court's Rules and the extension order. That the Appellant has to date not satisfied the judgment of the lower Court, 6 months after the lower Court's decision, thus, the Respondent is being denied enjoyment of its judgment. Counsel urged the Court to dismiss this appeal. The Respondent filed its Skeleton Arguments on 30 January 2023 in which he argued that the Appellant sat on its rights to prosecute its appeal as it had a period of 123 days (about 4 months) within which to file its Record of Appeal and Heads of Argument which they failed to do. That the lack of the relevant documentation before Court meant that there was no appeal to be heard and determined by this Court. The Respondent stated that the Appellant failed to file its Record of Appeal and Heads of Argument notwithstanding the extension R3 of 45 days in addition to the initial 60 days it was given by the Rules of this Court. That it is unjust and inequitable to give the Appellant unfettered right to extend time within which to file documents at the expense of the successful litigant who continued to hold on to an unexecuted judgment. Counsel cited the cases of John Kunda v Keren Motors (Z) Limited 1 , Legal Recourses Foundation Limited v Norwegian Mini try of Foreign Affairs2 , Zambia Telecommunication Company Limited v Irene Simate & Others3 , Stanbic Bank (Z) Limited v Savenda4 , D. E. Nkhuwa v Lusaka Tyre Services Limited5 , Nahar Investment Limited v Grindlays Bank International (Z) Limited6 , Twampane Mining Co-operation Society Limited v E and M Storti Mining Limited7 , Access Bank (Z) Limited v Group Five/ZCON8 , Standard Chartered Bank v John Banda9 , to support his arguments that the Appellant had been a dilatory litigant who had approached this appeal in a laissez faire manner and therefore the appeal should be dismissed for want of prosecution. The Appellant filed an affidavit in opposition on 3 February 2023 sworn by Mutuna Kasofu, an Advocate of the High Court in the firm of Tembo, Ngulube & Associates, seized with conduct of the matter on behalf of the Appellant. Counsel stated that the Appellant had filed its Notice of Appeal and Memorandum of Appeal on 22 September 2022 and therefore the Appellant had until 22 November 2022 to file the Record of Appeal and Heads of Argument. R4 However, on 22 November 2022, the Appellant applied to enlarge time within which to file its documents as the transcript of proceedings from the lower Court was not ready and it was unable to complete the preparation of the Record of Appeal and Heads of Argument by 22 November 2022. Further, that the Court granted an ex-parte Order on 9 December 2022 enlarging time to file the documents by forty-five (45) days to run until 23 January 2023. During this period, they engaged the Clerk of Court at Livingstone High Court by phone and by letter served on 23 January 2023 to follow up on the transcript. The deponent contended that the Appellant applied for a further enlargement or extension of time but which application was denied by the Court by Ruling of 25 January 2023. That notwithstanding, the Appellant brought another application for extension of time on 27 January 2023 believing that the Appellant was within the twenty-one days within which to make an application for extension of time. This was dismissed by the Court on 30 January 2023. The contention is that the failure to file the said documents within time was because the transcript of proceedings from Livingstone High Court were not ready and that some were only ready on 31 January 2023 and couriered to Lusaka on 1 February 2023. Counsel submitted that this was not a case fit for dismissal as the Appellant was now able to complete the preparation of the relevant document. RS The matter was heard before me on 7 February 2023. Both parties were represented by counsel. The parties relied on their respective affidavits and skeleton arguments and list of authorities on record filed on 30 January and 3 February 2023. The Respondent's counsel also cited the case of Henry Kapoko v The People 10 and the Chakaka Village Country House Limited & 2 Others v African Banking Corporation (Z) Limited. 11 I have carefully considered the application, the affidavit evidence and the arguments and authorities cited by both parties. The Rules of this Court require that a person desiring to bring an appeal to the Court must give notice of the appeal in accordance with Order X Rule 3(1) of the CAR. Pursuant to Rule 6 of the CAR, after filing the notice of appeal, the Appellant must lodge the appeal, within sixty days, by filing copies of the Record of Appeal and Heads of Argument. The Respondent has brought this application seeking to dismiss the appeal herein for want of prosecution pursuant to Order X Rule 7 of the CAR which provides that: 'If an Appeal is not lodged within the time frame stipulated under rule 6, the respondents may make an application to the Court for an Order dismissing the appeal for want of prosecution, or alternatively for such order with regard to the appeal as the Respondent may require.' R6 As afore stated, Rule 6 (a) of CAR provides a period of sixty days as the time within which a Record of Appeal should be lodged in the registry after the filing of a Notice of Appeal. The consequence of not lodging a Record of Appeal within the stipulated time frame is provided for in Order 10 rule 7 of CAR. The provisions of Order X Rule 6(a) and Rule 7 of CAR are unambiguous. A party intending to appeal has a period of sixty {60) days to lodge a Record of Appeal after filing its Notice and Memorandum of Appeal. Where the requisite documentation is not lodged within the prescribed timeframe, a Respondent is at liberty to apply to dismiss the Appellant's appeal. In this case, the Sinyangwe, J delivered judgment on 30 August 2022 in favour of the Respondent. Being dissatisfied with the said ruling, the Appellant filed a Notice of Appeal and Memorandum of Appeal into this Court on 3 October 2022. Pursuant to the Rules aforementioned, the Appellant had sixty days from the date of filing the notice of appeal within which to file copies of the Record of Appeal and Heads of Argument. The Notice of Appeal having been lodged on 3 October 2022 , the Appellant ought to have filed the Record of Appeal no later than 2 December 2022. The Appellant did not file the Record of Appeal and Heads of Argument but brought an application on 22 November 2022 seeking an extension of time to file these documents. The reason for the extension being that the Appellant had not been able to secure the transcript of proceedings from the lower Court and therefore unable to finalize the preparation and filing of the Record of Appeal and Heads of Argument. R7 Being satisfied with the reasons advanced by the Appellant for the failure to file the documents within the time prescribed, this Court allowed a 45-day extension sought by the Appellant. In terms of this extension period, the Appellant ought to have filed its documentation by 23 January 2023. However, the Appellant's counsel did not do comply with this extension and not having done so, sought a further extension of time on 23 January 2023 advancing the same reasons for not having filed the Record of Appeal as being on account of not obtaining the transcript of proceedings from the lower Court. Counsel also cited the closure of its firm for a vacation in December 2022 through to January 2023 as its inability to follow up on the transcript. Not being satisfied with the reasons advanced by the Appellant's counsel, the second application for extension of time was declined by this Court on 25 January 2023. The Appellant's counsel filed a third application for extension of time which was equally declined. This prompted the Respondent's application to dismiss the action. In the affidavit in opposition, the Appellant's counsel exhibited documentation endeavouring to show the steps he had taken to secure the transcript of proceedings from the lower Court. A close review of the documentation shows that although the judgment was delivered on 30 August 2022, and the Notice of Appeal filed on 3 October 2022, a request for the transcript of proceedings was only initially made delivered to the Assistant Registrar of the lower Court on 19 October 2022 (exhibit 'MK3'). R8 From that date, there appears to have been no follow-ups with the lower Court until the expiration period on 23 January 2023 (exhibit 'MK3'). The Court guided in the case of Rachel Lungu Saka v Hilda Bwalya Chomba 12 as follows: 'We wish to remind the Appellants that it is their duty to lodge records of appeal within the period allowed including any extended period.... Litigation must come to an end, and it is highly undesirable that respondents should be kept in suspense because of dilatory conduct on the part of the Appellant.' In the present case, the Appellant did not lodge the Record of Appeal within the initial 60-day period allowed by the Rules, nor did the Appellant do so within the extended 45-day stipulated period as required. As rightly submitted by the Respondent's counsel, there is currently no appeal pending determination before this Court due to the Appellant's failure to comply with the Court's Rules and the extension order. In view of the foregoing, the application to dismiss the appeal herein for want of prosecution has merit. The appeal is accordingly dismissed forthwith with costs to the Respondent to be taxed in default of agreement. Dated at Lusaka this 20 February 2023. ~ J ~ ~- Sharpe-Ph~ COURT OF APPEAL JUDGE R9