Zambot Limited v NDA Transport Limited (CAZ/08/324/2021) [2022] ZMCA 153 (11 November 2022)

IN THE COURT OF APPEAL FOR ZAMBIA AT THE LUSAKA DISTRICT REGISTRY HOLDEN AT LUSAKA ( Civil Jurisdiction) CAZ/08/324/2021 BETWEEN: ZAMBOT LIMITED AND NDA TRANSPORT LIMITED Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 11 November 2022 For the Appellant: Ms. T. Banda of Messrs Mulengeshi & Company, Agents for V. K Mwewa For the Respondent: No appearance RULING Legislation referred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 of 2016 The appellant brought an application on 20 October 2022 to set aside the order dismissing the appeal for want of prosecution made by this Court. The application was made pursuant to Order VII (1) 4 (1) (2) of the Court of Appeal Rules. Rl The application is supported by an affidavit sworn by one Vincent Kaunda Mwewa, counsel for the appellant, in which he deposes that on 27 September 2022, this Court on an application made by the respondent, dismissed the appeal for want of prosecution. That the Court indicated that the appellant did not oppose the application to dismiss the appeal for want of prosecution. That the said omission was clearly as a result of a serious misinterpretation of the way to ·1 proceed with the respondent's advocates and was in no way meant to indicate that the appellant had no valid reason to fail to apply for extension of time within which to file the Record of Appeal. Further, that the appellant therefore applies for a variation order from this Court so that it could be heard on that application and the matter determined on the merits. That at the determination of the said application, the Court did not address its mind to the failure by the respondent to file the Notice of Address of Service and the consequences that flow from the same. On 7 November 2022, counsel for the appellant filed a further affidavit in support in which he deposed that in this Court's ruling of 27 September 2022, it was observed that the period of delay was too , ., long and that there was no affidavit in opposition and which could not be denied. That after the delivery of judgment by the lower Court, he had pursued the issue of obtaining Judge's notes with the Marshal to the Judge as well as the Assistant Registrar. That the Judge's notes were secured on 15 Octa ber 2022 and preparation of the Record of Appeal commenced. R2 That however, before the completion of the preparation of the Record of Appeal, he fell ill and his workload was restricted but eventually the Record of Appeal was concluded. That it was therefore not deliberate that the Record of Appeal was not prepared in time and that at the hearing there was no affidavit in opposition. That it was clearly out of misapplication of the law between the appellant and the respondent as this Court would notice that there was a purported consent order entered into in an attempt to cure the defect. He concluded by asking the Court to use its utmost discretion to set aside the order to dismiss the appeal for want of prosecution and allow the appellant to file the Record of Appeal on such terms as the Court may determine. The matter was scheduled for hearing on 9 November 2022. On the said date, counsel for the appellant was present but there was no appearance from the respondent. Counsel informed the Court that the respondent has been served with the process and that they filed the affidavit of service. Being satisfied that the respondent was served with the process and aware of the hearing date , I allowed Counsel for the appellant to proceed in the absence of respondent. Counsel for the appellant relied on their affidavit in support of 20 October 2022 and further affidavit of 7 November 2022. I have carefully considered the application before me together with the affidavit evidence on record. R3 The application is made pursuant to Order VII (1) 4 (1) 2 of the Court of Appeal Rules which specifically provides as follows: 4 (1) 'If the respondent does not respond within the stipulated time for the response to an application, the Court may hear and determine the application in the respondent's absence. (2) The Court may, subject to an order as to costs that the Court may make set aside its decision made under Subrule (1) on its own motion or upon the application of the respondent or a party affected by the decision. By this application, the appellant seeks an order to set aside the order dismissing the appeal made on 27 September 2022. By that decision, the Court among other reasons found that the appellant had not taken any steps to prosecute the matter since August 2021 nor made any efforts to defend the application to dismiss the appeal. The appellant has now reappeared in a quest to resurrect the appeal on the basis that the failure to prosecute the appeal was on account of a serious misapprehension of the way to proceed with the respondent's advocates. Counsel added that in arriving at the decision to dismiss the appeal for want of prosecution, this Court did not take into consideration the failure by the respondent to file the notice of address of service. R4 The law is very clear under Order 5(2) of the Court of Appeal Rules on procedures pertaining to filing of notice of address. However, the intention of that provision is meant to ensure that an intended respondent is properly served with process at the correct address and the vice versa for the appellant. This issue however is not relevant in relation to the issue before the Court. The issue before me is whether the appellant has sufficiently demonstrated that the earlier order of this Court should be set aside. ~he appellant's counsel has stated the reasons for its failure to file the Record of Appeal into Court on time, as being on account of the delays in the Court's production of the Record of Proceedings. However, he has not demonstrated through correspondence that he was unable to secure the proceedings from the Court. He has also not shown what efforts, if any, he made to have these proceedings uplifted from the Court. This in my opinion, seems to be an afterthought raised by counsel to cover up his failure to take any steps in the matter in over a year. The appellant therefore having failed to file the Record of Appeal within the time prescribed by the Rules and having failed to take any steps to prosecute the appeal for over one year, plus not having applied for an extension of time to file the Record of Appeal, does not have a basis to seek to set aside the order dismissing the action. RS The delay in filing the Record of Appeal was inordinate and the appellant has not provided reasonable grounds to satisfy me that the delay was excusable. I see no substance warranting me to set aside my earlier ruling to dismiss the appeal for want of prosecution. I accordingly dismiss the application with costs to the respondent, to be taxed in default of agreement. Dated at Lusaka this 11 November 2022. ~ r~ .. Sharpe-Phii COURT OF APPEAL JUDGE R6