Zimbabwe Mining Development Corporation and Anor v Amaplat Mauritius Limited and Anor (NOM/58/2019) [2020] ZMCA 193 (16 April 2020)

Rl IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) NOM/58/2019 BETWEEN: ZIMBABWE MINING DEVELOPMENT CORPORATION i ti APi? 2020 }st APPLICANT THE CHIEF MINING COMMISSIONER MINISTRY OF MINES 2nd APPLICANT AND AMAPLAT MAURITIUS LIMITED 1st RESPONDENT AMARI NICKEL HOLDINGS ZIMBABWE LIMITED 2nd RESPONDENT CORAM: CHISANGA, JP, SICHINGA AND NGULUBE, JJA. On 22nd, 24th January, 2020 and 16th April, 2020. For the Appellant: D. Nundwe, Messrs Ranchhod Chungu Advocates For the Respondent: M. Lukonde, Messrs Simeza Sangwa & Associates ._.... RULING Ngulube JA, delivered the Ruling of the Court Cases referred to: 1. Finnegan v Parkside Health Authority (1 998) 1 ALL ER 595 2 . Leopold Walford v Unifreight (1985) ZR 203 3 . Twampane v Storti SCZ No 20 of 2011 R2 4. Nahar Investments Limited V Grindlays Bank International (Zambia) Limited (1984) ZR 81 SC 5 . Henry Kapoko v The People CC Judgment No. 6 of 2016 6. Rachel Lungu Saka v Hilda Bwalya Chomba and Attorney General CAZ/ 08/ 059/2017 7. Stanley Mwambazi v Morester Farms Limited (1977) ZR 108 (SC) 8. Zambia Revenue Authority v Jayesh Shah SCZ Judgment No. 10 of 2001 Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016. 2. The Court of Appeal Act, No 7 of 2016 3 . The Supreme Court Practice, White Book 1999 Edition INTRODUCTION 1. By notice of motion filed herein on 29th August, 2019, the applicants seek an order for variation, discharge or reversal of the ruling of a single Judge of this court dated 16th August, 2019. The notice of motion was taken out pursuant to section 9 (b) of the Court of Appeal Act 1 and it was accompanied by an affidavit in support. BRIEF BACKGROUND 2. A brief background to this matter is that on 26 th April, 2019, the lower court made a ruling in favour of the respondents. Dissatisfied with the ruling of the lower court, the applicants filed a notice of appeal and memorandum of appeal on 8 th May, 2019. R3 3. On 19t h July, 2019 , the respondents filed summons for an order to dismiss the appeal for want of prosecution accompanied by skeleton arguments. 4 . The applicants filed an affidavit in opposition together with skeleton arguments and list of authorities on 31 st July, 2019 . 5 . The said application was determined by a single Judge of this court on 16th August, 2019 who dismissed the appeal on the ground that the applicants had not complied with Order 10 Rule 6 of the Court of Appeal Rules2 and that they had not sought an extension of time within which to file the record of appeal and heads of argument s pursuant to Order 13 Rule 3 of the Court of Appeal Rules 1 . MAIN APPLICATION 6 . The grounds upon which the applicants have renewed the application that was made before the single Judge are as follows : 1. The single Judge did not give a basis for questioning the plausibility of the events which led to the appellants' failure to file the record of appeal within the stipulated period which are matters of fact for the delay. u . The single Judge erred in facts and in law when she determined that the delay in the typed proceedings of the Court below R4 should have prompted the applicants to apply for extension of time. iii. The single Judge erred in fact and in law when she failed to take into account the intentions and purpose of Order 10 Rule 3 of the Court of Appeal Rules which gives parties an opportunity to apply for extension of time out of the stipulated time limit and with that intention in mind ought to have considered that the appellant would not have applied for extension of time out of the stipulated time limit as there was an application to dismiss the matter for want of prosecution. 1v. The single Judge erred in fact and in law when she failed to consider that the delay by the applicants was not inordinate . 7 . The main points in the affidavit in support sworn by Mr. Paulman Chungu, were merely a reproduction of the notice of motion. In further support of the application, the applicants filed skeleton arguments and list of authorities and contended that in the administration of justice, it is always prudent that matters should be heard on their merits. The overriding principle being that justice must be done and that a party should not merely seek to take tactical advantage from failure of another party to comply with time limits. In RS support of this argument, the Court was referred to the case of Finnegan v Parkside Health Authority 1 • 8. It was the applicants' contention that whereas they concede that the record of appeal was not filed within the time limit stipulated in the Rules of this Court, the breach is not fatal and can be cured. In aid, they cited the case of Le opold Walford v Unifreight2 where it was held that "as a general ru le, breach of a regulatory rule is curable and not fatal, depending upon the nature of t he breach and the stage reached in the p roceedings." 9 . It was contended that the reasons given by the applicants for the delay in filing the record of appeal was plausible as the Lower Court's proceedings were not available and that the law makes it clear that the lower court's proceedings ought to be presented in a properly compiled record of appeal. That the honourable single Judge failed to take into consideration the jurisdiction and discretion to extend the time within which the record of appeal may be lodged by the appellants. The applicants cited Order 13 Rule 3 of the Court of Appeal Rules which provides that- .- R6 "the Court may for sufficient reason extend time for making an application, including an application for leave to appeal, or for bringing an appeal, or for taking any steps in or in connection with any appeal, despite the time limit having expired, and whether the time limit for that purpose was so limited by the order of the Court, by these Rules, or by any written law." 10. It was further con tended that while noting that the a pplicants still has an opportunity to apply for an extension of time outside the stipulated time limit, it would have b een procedurally irregular for the th em to apply for an extension of time within which t o lodge the record of appeal when there was already an application to dismiss the app eal for want of prosecution. It was the applicants' conten tion that the delay in filing the record of appeal was not inordinate and the applicants cannot be said to have sat on their rights to prosecute the matter. In summation it was contended that a special circu mstance d oes exist for this Court to extend time within which the a pplicants can lod ge the record of appeal. 11 . The respondents filed s keleton arguments in opposition on 22 nd January, 2020 and contended that the applicants' application was improperly before this Court as the application was made outside the - - - - - - -- - - - - -- - - - -- R7 prescribed time frame of 10 days. In support of this argument the respondents referred the Court to the provision of Order 59 Rule 14 Sub Rule 41 of the White Book2 which provides for appeals from a single Lord Justice to the full Court as follows: "An appeal to the Full Court against a decision of a single Lord Justice (where such appeal lies as of right) is by a fresh application made within 10 days of the single Lord Justice's determination. The application must be made on summons on which a fee will be payable ...... The 10-day period runs from the date on which the single Lord Justice gave his decision and the application by way of appeal to the Full Court must be set down within that 10-day period." 12. In explaining this provision of the law, it was contended that given the provisions of Order 59 / 14 / 41 of the White Book, where a litigant is dissatisfied with the decision of the single judge, he or she should approach the Court by way of an application made by summons, which must be filed within 10 days of the decision of the single Judge . That as the record indicates, the ruling of the single Judge was delivered on 16th August 2019, and the applicants only filed the summons on 29th RS August 2919, 14 days after the delivery of the Ruling by the single Judge. 13. It was contended that this court should not entertain this application as it was made out of time. In this regard, the resp ondent referred the court to the case of Twampane v Storti3 where Muyovwe JS, stated thus: "In this regard, we cannot over-emphasise the importance of adhering to Rules of Court as this is intended to ensure that matters are heard in an o rderly and expeditious manner. Allowing this appeal would be tantamount to us encouraging laxity and non-observance of unless orders by practitioners and litigants in general. We repeat what we said in Nkhuwa v Lusaka Tyre Services Limited, that those who choose to ignore rules of court will do so at their own peril." 14. In the alternative the respondents contended that the applicants' application lacks merit as the single Judge was on firm ground when she held that the reasons given by the applicants for not filing the record of appeal in time were not plausible and that the delay was inordinate. Further, that the single Judge was on firm ground when R9 she held that the applicants should have applied for extension time upon realizing that the typed proceedings would be delayed. It was the respondent's contention that the application for extension of time should have been made by the applicants at the point when they realised that they would not obtain the typed proceedings in time and before the sixty-days period had expired. 15. It was contended that the applicants' argument that it could have been procedurally unsuitable for them to apply for extension of time while the respondent's application to dismiss the appeal for want of prosecution is pending is lame as they have not provided any legal backing for the same. It is the respondents' further argument that they moved the court ahead in time because the applicants had failed to comply with the rules of court and the decision of the Supreme Court in the case of Nahar Investments Limit e d4 . 16. In reply the applicants referred this Court to the provisions of Order 10 Rule 2(9) which states that- All application involving the dec ision of an appeal shall be made in the manner specified in sub-rule ( 1). Subsequently , sub rule 2 of Order 10 Rule (2) states- ... RlO An application to a single judge shall be made by notice o f motion or summons w ithin fourteen days from the date of the decision complained o f. 17. The applicants contended that the intention of section 8 of the Court of Appeal Act2 and Order 1 Rule 1 of the Court of Appeal Rules 1 relied on by the respondents is to help this Court to refer to the practice and procedure followed in civil matters in England where we have a lacuna in our rules. It was contended that the Court of Appeal rules are very clear as to the practice and procedure were a party wishes to make an application involving an appeal as the same ought to be made by notice of motion or summons within 14 days from the date of the decision complained of. The applicants emphasized that the renewed application was made within the 14 days provided for by the rules of court. 18. At the hearing of the application, Counsel for the applicants Ms. Nundwe relied entirely on the documents filed herein. 19. Counsel for the respondents, Ms. Lukonde relied on the documents filed in opposition and briefly highlighted the contents of the skeleton arguments which we have already summarised above. DECISION OF THE COURT. Rll 20. We have considered the renewed application before us, affidavit evidence, skeleton arguments and oral submissions by respective Counsel. In our view there are two issues for determination before us. Firstly, whether the renewed application was properly made before the full Court and secondly, whether there is inordinate delay on the part of the applicants to apply for extension of time within which to file the record of appeal and heads of argument before this Court. 21. In relation to the first issue, the respondents have argued that the renewed application was made before the full Court outside the 10 days provided for by Order 59 / 14 / 41 of the White Book. In response to this argument, the applicants contended that the Court of Appeal Rules are sufficient and we need not refer to the White Book in this instance. According to the applicants, the right provision of the rules applicable is Order 10 Rule 2 sub Rule (9) as read together with sub Rule 2. To the applicants the import of this provision is that an aggrieved party who is dissatisfied with the decision of an appeal may make an application to the Court for an Order to vary, reverse or discharge the decision of the Judge within 14 day s of the decision complained of. 22. We do not agree with the interpretation of the law by the applicants. The provision of the law relied on by the applicants is applicable to . _., R12 a pplications from the High Court to a single Jud ge of this Court while the issue at hand relates to the renewal of an a pplication b efore the full court. 23. We agree with Counsel for the respondent th a t the Court of App eal rules do not provide for the time fram e with in which a party may renew an application which was originally heard and d etermined by a single Judge to the full Court. Unlike in civil matters , in criminal matters , our rules are clear on the time frame within which an application b efore a single judge can be renewed to the full Court. Order 7 Rule (7) and (8) provides that: (7) Where an application in a criminal matter has been dealt with by a single judge, the Master shall notify the appellant of the decision in Form V set out ill the First Schedule, (8) When an appellant is notified that the application referred to in subrule (7) has been refused, the appellant wishing the application to be heard by the full Court shall lodge with the Master, within fourteen days of receipt of that notification, a notice requesting the application to be heard by the full Court. R13 24. The Supr em e Court held in the case of Henry Kapoko v The Peoples that- "Article 118(2) (e) is a guiding principle of adjudication framed in mandatory terms. It is a basic truth applicable to different situations. The Article's beneficial value is achieved well if it is applied in an eclectic fashion depending on the nature of the rule before it. Article 118(2) (e) is not intended to do away with existing principles, laws and procedures, even where the same may constitute technicalities. It is intended to avoid a situation where a manifest injustice would be done by paying unjustifiable regard to a technicality." 25. The rules do not indicate when a party who is dissatisfied with a decision of a single judge may review it before th e full court. However, parties ought to bring their application for ren ewal before th e full court within reasonable time. We are of the consider ed view that 14 days is a reasonable time within wh ich to file a renewal b efore the court. The rules being silent on when a party should approach the full court to vary discharge or reverse the decision of the single judge, this reprieves the application. It would not be just to penalize the applicant in the , . R14 absence of prescription of the period within which he should have approached the full court. It is also obvious that the other party will not suffer any prejudice . With this said we shall proceed with the application before us and make a determination on its merits. 26 . With respect to the second issue whether the applicants inordinately delayed to apply for an order extending time within which to file the record of appeal and heads of arguments, the applicants argued that they still had to make the application for extension of time and they could not do so owing to the fact that the respondents prematurely made an application to dismiss the appeal for want of prosecution. 27. On the other hand, the respondents contended that the applicants slept on their right to seek an extension of time or leave to file an extension of time. The respondents heavily relied on the case of Nahar Invest ment Limited v Grindlays Bank International (Zambia) Lim ited (supra) where the Supreme Court held that- "In the event of inordinate delay or unfair prejudice to a Respondent, the Appellant can expect the appeal t o be dismissed. An appellant who sits back until there is an application to dismiss their appeal, before making their own frantic application for an extension of time, do so at their own peril" R15 28. Order 10 rule 6 of the Court of Appeal Rules 1 guides app ellants on the time frame within which to file the record of a ppeal and heads of argument by providing as follows: Subject to an extension of time and to an order made under Order XIII rule 3, the appellant shall within sixty days after filing a notice of appeal, lodge the appeal by filing in the Registry twenty-one hard copies of the record of appeal together with heads of argument and an electronic copy of the record of appeal. 29 . The applicants filed a notice of appeal and memorandum of a p peal before this Court on 8th May, 2019, they had a 60-day mandatory period within which to file the record of a p peal . According t o Counsel for the a ppellant, they were unable to file the record of app eal within the stipulated 60 day s becau se the court proceedings were not yet ready. Order 13 of the Court of Appeal Rules provides for extension of time. Relevant to this matter is Order 13 rule 3 sub rule 2 and 3 which provides as follows- (2) An application to the Court for extension of time in relation to adjudgment or the date of expiration of the time within which the application ought to have been made, shall be filed in the Registry within - R17 31 . In this case before us, an application by the respondent to dismiss appeal for want of prosecution was made on 19th July, 2019 on the 10th day after the expiration of the sixty (60) days and within the 21 extra days . 32. In the case of Rachel Lungu Saka v Hilda Bwalya Chomba and Attorney General6 this Court stated that Ord er 13 Rule 3(3) of the Court of Appeal Rules gives discretion to this Court to grant an applicant outside the two prescribed period s of sixty (60) and twenty one (21) days after the expiry of the sixty (60) days. 33. Further, in the case of Stanley Mwambazi v Morester Farms Lim ited7 it was held that; "It is the practice in dealing with bona fide inter locutory applications for courts to allow triable issues to come to trial despite the default of the parties; where a party is in default, he may be ordered to pay costs, but it is not in the interests of justice to deny him the right to have his case heard. For this favourable treatment to be afforded there must be no unreasonable delay, no mala fl.des and no improper conduct on the action on the part of the applicant. • • ,,, R18 34. In the case of Zambia Revenue Authority vs. Jayesh Shahs the Supreme Court stated that- "Cases should be decided on their substance and merit where there has been only a very technical omission or oversight not affecting the validity of process. This is not to suggest that the rules of court can be ignored when they specify what should be included in the record of appeal; the rules must be followed but the effect of a breach will not always be fatal if the rule is merely regulatory or directory". 35. Given the law as espoused in the above cited cases, it is the view of this Court that the applicants did not inordinately delay to apply for extension of time within which to filed the record of appeal. This is a proper case for this Honourable Court to exercise its discretion and reverse the decision of the single Judge in the interests of justice. The applicants were still within the 21 days period afforded to them by the law within which to file an application for extension of time and their explanation that they could not apply for an extension of time after the respondents made an application for appeal to be dismissed is plausible. - /II R19 36. Accordingly, the application is allowed and costs will be in the cause. The applicants are advised to apply for leave to make an application for extension of time within which to file the record of appeal and heads of argument within 7days. I .................. -%-: ............. . F. M CHISANGA JUDGE PRESIDENT, COURT OF APPEAL. P. C. M NGULUBE COURT OF APPEAL JUDGE.