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SCZ RULING NO. 6/2015

IN THE SUPREME COURT OF ZAMBIA SCZ/8/308/2012HOLDEN AT LUSAKA(Civil Jurisdiction)

BETWEEN:

FALCON PRESS LIMITED 1ST APPLICANTGEORGE FRANCIS ROBERTS 2ND APPLICANTANDFACKSON KATONGO KANGWA AND 46 OTHERS RESPONDENTS

Coram: Mwanamwambwa, Ag DCJ, Wood and Kaoma, JJS

On the 15th of October, 2014 and 15th January, 2015For the Applicants: Mr. L. Kalaluka - Ellis and CompanyFor the Respondents: No Appearance

RULING

Kaoma, JS, delivered the Ruling of the Court.

Cases referred to:1. NaharI Investment Limited v Grindlays Bank International (Z)

Limited(1984) Z.R. 812. Tata Zambia Limited v Shilling Zinka (1986) Z.R. 513. Zambia Telecommunication Company Limited v Muyawa Liuwa- SCZ

Judgment No. 16/2002

By notice of motion filed on 26th March, 2014, the applicants

seek to set aside or reverse the ruling of a single Judge delivered

on

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28th February, 2014 dismissing, for want of prosecution, the

appeal that was filed by the applicants on 19th September, 2012.

The motion is supported by three affidavits deposed to by

the 2nd applicant, by Margaret Siame and by Kennedy Kaunda

respectively. The respondents filed an affidavit in opposition to

the motion sworn by Emmanuel Chitala, one of the respondents.

As can be seen from the affidavit evidence and the Ruling of

the single Judge, on 3rd June, 2013, the applicants applied before

the Judge for leave to lodge the record of appeal and heads of

argument out of time, having failed to do so within the requisite

60 days. The reason given for the default was that the file went

missing at court, but the record was ready for filing. The Judge

granted the applicants an extension of 30 days from 2nd August,

2013 within which to file the record of appeal and heads of

argument. However, the record of appeal was not filed.

On 24th September, 2013, the applicants applied again for

leave to lodge the record of appeal and heads of argument out of

time. The reason given this time round was that the heads of

argument were supposed to be couriered on 28th August, 2013 by

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their advocates’ Kitwe office, but were misplaced by Times Print

Pak

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(Z) Limited. It was deposed in the affidavit in support that the

heads of argument were ready and a copy was exhibited.

The application was heard on 12th November, 2013 and

thereafter adjourned to 28th November at 08.30 hours for ruling.

On the latter date, counsel for the applicants attended court at

the scheduled time to receive the ruling, but was advised by the

court marshal that the Judge was attending a workshop in

Chisamba. However, the ruling was delivered by the Judge in the

afternoon of the same day, in the absence of the parties. The

applicants were given 14 days from 29th November, 2013 within

which to file the record of appeal. Again the record of appeal was

not filed.

On 20th January, 2014, the respondents filed summons to

dismiss the action for want of prosecution on the ground that

despite the further extension of 14 days, the applicants had failed

to file the record of appeal.The application was made returnable

on 29th January. Two days later, on 22nd January, the applicants

filed summons for special leave to lodge the record of appeal and

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heads of argument out of time. The main reason given for the

default in the affidavit in support sworn by the 2nd applicant is that

their advocates knew about the Ruling in the second week of

January,

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2014; after they reminded the marshal when she went to serve a

criminal appeal record that they were still awaiting the ruling.

That prior to that Mr. Kaunda,their counsel, had made follow-

ups, twice on dates he could not recall, until their firm closed for

industrial break from 13th December, 2013 to 6th January, 2014;

and by the time counsel collected the ruling the period granted by

the Judge had already lapsed.The application was also made

returnable on 29th January. On 27th January, the applicants filed

their affidavit in opposition to the summons to dismiss the action

for want of prosecution. Both applications were argued on 10th

February, 2014, after which the matter was adjourned for ruling.

The single Judge analyzed the affidavit evidence and

submissions by the respective advocates, but found no truth in

the statement that the applicants’ advocate had been asking the

marshal for the ruling until January, 2014. The Judge found the

averments by the 2nd applicant to that effect to be hearsay. The

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Judge accepted that he was in Chisamba on 28th November, 2013,

for a workshop, but said he returned in the afternoon of the same

day and delivered the ruling, though in the absence of the parties.

(115)

The Judge also found that there had been inordinate delay in

the matter, as the notice of appeal was filed in September, 2012

and there had been three applications for leave to file record of

appeal.

The Judge further found that there was prejudice occasioned

to the respondents who had not been able to enjoy the full

benefits of their judgment since 17th November, 2011

notwithstanding that attempts by the applicants to stay execution

in the lower court and this Court were not successful.

As to the applicants’ application for special leave to file

record of appeal out of time, the Judge believed that the

applicants were awakened and motivated to file the application

by the respondents’ application to dismiss the appeal; and that

they had failed to prosecute their appeal and to file the record of

appeal despite being given leave on three occasions. Finally, the

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Judge dismissed the appeal for want of prosecution with costs,

thus this motion.

Counsel for the applicants filed skeleton arguments on 26th

March, 2014 and Mr. Kalaluka, who was in attendance at the

hearing of the motion, relied solely on the same. There was no

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appearance by the respondents and we have not received any

written heads of argument from them.

The prime issue for us to determine is whether the learned

single Judge ought not to have dismissed the appeal for want of

prosecution, but ought to have granted the applicants special

leave

to file the record of appeal out of time. In answering this question

we shall deal with the five issues raised by the applicants in their

motion and skeleton arguments.

The applicants have attacked the Judge’s finding that the

respondents have suffered prejudice since they are not able to

enjoy the benefit of the judgment. It is argued that there is no

order for stay of execution and the Sheriff‘s Seizure Form and Writ

of Eligit before us clearly show that the respondents are currently

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enjoying the fruits of the judgment, so they have suffered no

prejudice.

It is also argued that even if there were such prejudice, the

respondents are required to demonstrate that the prejudice is in

fact “unfair”. But given the huge sums endorsed on the executed

Writs of Fi.fa and Eligit, it cannot be said that the respondents

have suffered unfair prejudice; and it is not correct as stated by

the single Judge that the respondents cannot be expected to wait

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indefinitely for the enjoyment of the fruits of their judgment. The

case of Nahar Investment Limited v Grindlays Bank International

(Zambia) Limited1is cited, where we held that in the event of

inordinate delay or unfair prejudice to a respondent, the appellant

can expect the appeal to be dismissed.

We accept that there was no stay of execution of the High

Court judgment as the single Judge had refused to stay execution

on 1st January, 2013 on the ground that the appeal had no

prospect of success; and in the ruling, the subject of this motion,

the Judge acknowledged that attempts by the applicants to stay

execution in both the High Court and this Court were

unsuccessful.

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There is also no dispute, as deposed by the 2nd applicant in

the 1st affidavit in support of motion that Writs of Fi.fa and Eligit

were issued and executed by the Sheriff of Zambia. The

documents at pages 39 to 43 of the record confirm this position,

though some are not clearly legible. The respondents have also

accepted in their affidavit in opposition that they are realizing

rentals under the Writ of Eligit, and have since applied to the High

Court for sale of the property as the rentals are insufficient to

offset the judgment debt.

(118)

It seems to us that so far, the sum of K437,275.00 has been

realized under the Writs of Fi.fa and Eligit, leaving the outstanding

principal sum and interest at K4,635,476.00. It is also clear from

the affidavit in opposition, that the applicants have even offered

to sell Plot No. 4309, Ndola which according to them has a value

of K12,000,000.00, so as to liquidate the total amount due to the

respondents. On these facts we agree with the applicants that

the respondents have not been prevented from enjoying the fruits

of the judgment and so have suffered no prejudice.

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However, the question is whether the single Judge was

aware of the issuance and execution of the Writs of Fi.fa and

Eligit. It is clear to us that the execution documents above

mentioned were not exhibited to the affidavits in opposition to

summons to dismiss the appeal or in support of summons for

special leave to lodge record of appeal out of time which are at

pages 53 and 56 of the record.

In addition, whilst the transcript of proceedings at page 106

of the record, show that Mr. Kaunda, counsel for the applicants,

had informed the Judge that there was no stay of execution which

might cause prejudice to the respondents, he did not disclose that

execution had already been levied. Hence, we do not fault the

single

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Judge for believing that the respondents had suffered prejudice as

they were unable to enjoy the benefit of the judgment.

The applicants have also attacked the holding by the learned

Judge that there had been inordinate delay. It is argued that

having been earlier granted leave to lodge record of appeal out of

time, the relevant date/period from which to determine whether

or not there

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had been a delay in applying for special leave was 12th December,

2013 or the second week of January, 2014, when the applicants’

advocates became aware of the existence of the ruling and not

19th September, 2012 when the notice of appeal was filed or the

date the record of appeal was, by law, supposed to be lodged.

We have been referred to the case of Tata Zambia Limited v

Zinka2, where in determining whether or not to set aside default

judgment this Court considered the date when the application to

set aside the judgment was withdrawn and not the date when the

defence was, by law, supposed to be entered.

It is argued that a period from 12th December, 2013 or 16th

January, 2014 to 22nd January, 2014, cannot amount to inordinate

delay and in fact, the learned Judge stated in the Ruling of 28th

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November, 2014 that he found that there were good reasons for

the delay and a period of less than a month’s delay was not

inordinate. It is contended that there was no inordinate delay in

making the applications, including the one before this Court.

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The applicants have also attacked the Judge’s finding that

there was no truth in the 2nd applicant’s statements in paragraphs

4 to 5 of his affidavit.

It is argued that Mr. Kaunda’s affidavit confirms that they

followed up with the Marshal to the Judge until they closed for

Christmas and when the Marshal went to deliver a criminal appeal

record at their Chambers in January, 2014, and it was at that

point that she advised that it had in fact been rendered; and the

Judge confirmed he was in Chisamba at the appointed time for the

ruling and there was no notice of hearing returnable in the

afternoon and no other communication as to the change in time.

The case of Zambia Telecommunication Company Limited v

Muyawa Liuwa3 is cited. In that case, there was no time stipulated

in the original order and the signed order stated sixty days and

with that confusion the Court found difficulty in granting the

application to dismiss the appeal and gave the benefit of doubt to

the appellant.

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It is argued that in light of the miscommunication in this case, the

applicants must be given the benefit of doubt.

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In opposing the application to dismiss the appeal, the

applicants relied on their affidavit in support of summons for

special leave deposed to by the 2nd applicant. The learned Judge

did consider paragraphs 3, 4, 5, and 7 of that affidavit. Whilst the

Judge accepted that he went to Chisamba for a workshop, he said

he returned the same day of 28th November, 2013 and in the

afternoon he delivered the ruling. He disbelieved the assertion

that the applicants’ advocates had been asking the marshal for

the ruling until January, 2014 and considered the averments by

the 2nd applicant in paragraphs 4 to 5 of the affidavit as hearsay.

The Judge went on to say he expected counsel himself to file an

affidavit to that effect, and have the marshal, give evidence to

that effect. Certainly, the 3rd affidavit in support of notice of

motion deposed to by Kennedy Kaunda was not before the Judge

for consideration.

With regard to paragraph 7 of the affidavit in support of

summons for special leave, alleging that there was no inordinate

delay, the Judge found it difficult to believe that an advocate

could advise his client and argue that there had been no

inordinate delay

(122)

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in the circumstances of this case. The learned Judge then took

into account the fact that the notice of appeal was filed in

September, 2012 and that there had been three applications for

leave to file the record of appeal and concluded that there was

inordinate delay.

While we agree that the learned Judge found that there were

good reasons for the previous delays in filing the record of appeal

after extension of time on two occasions, he considered the delay

to

file the record of appeal after the second extension on 28th

November, 2013, to be inordinate especially that the notice of

appeal was filed in September, 2012.

We have considered the authorities cited by the applicants

where extension of time was granted even after delays of six

months and one year. But in this case the single Judge rejected,

and rightly so, the reason given by the applicants for failure to file

the record of appeal from 29th November, 2013 to 20th January,

2014, when the respondent filed the application to dismiss the

appeal.

We are of the view that the learned Judge was right to reject

the reason given as it was hearsay. We do not believe that the

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marshal would have failed to inform counsel for the applicants

that the ruling had been delivered, if indeed, they made a follow-

up

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before they went on Christmas break. As was observed by the

learned Judge, evidence from counsel and the marshal could have

helped the applicant’s case. In the absence of such admissible

evidence, the learned Judge was on firm ground not to accept the

reason given, and the applicants cannot be heard to argue now

that they must be given the benefit of doubt as the

communication qualifies as a special or exceptional circumstance.

The applicants have also questioned the Judge’s finding that

they were awakened or motivated by the respondent’s application

to dismiss the appeal when they applied for special leave to lodge

the record of appeal out of time.It is argued that while the

summons for special leave were filed two days after the summons

to dismiss the appeal, the process to apply for special leave

started way before the respondents filed their summons to

dismiss the appeal as shown in the 2nd affidavit of Margaret

Siame.

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It is further submitted that the summons to dismiss were

served on the applicants’ advocates’ Kitwe office on 23 rd January,

2014; and there was no search conducted on the file by the

applicants prior to 22nd January, to show that they or their

advocates were aware of the application to dismiss the appeal. It

is

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argued that these are special and exceptional circumstances

excluding the holding in the Nahar Investment1 case.

It may be true that the process of applying for special leave

started before the respondents applied to dismiss the appeal, and

it is not disputed that the application to dismiss was served on the

applicants’ advocates on 23rd January, 2014, after the applicants

had filed their application for special leave to file record of appeal

and heads of argument out of time. However, the learned Judge

was not informed of when the process started or when the

application to dismiss the appeal was served on the applicants’

advocates.

The Judge based his decision on the affidavit evidence and

arguments before him. He cannot be faulted for believing that the

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applicants were awakened to apply for special leave by the

respondents’ application to dismiss the action.

Quite clearly, the Court has power under Rule 12(1) of the

Supreme Court Rules, Cap 25 to extend time for making any

application, including an application for leave to appeal, or for

bringing an appeal or for taking any step in or in connection with

any appeal, notwithstanding that the time limited therefore may

have expired. But there must be sufficient reason for the Court to

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exercise the discretion. In this case the Judge rejected the reason

given by the applicants for failure to file the record of appeal after

the second extension of time, meaning there was no sufficient or

good ground on which the Judge could exercise his discretion.

The applicants have further attacked the Judge’s statement

that they had previously been granted leave to file the record of

appeal on three occasions.

It is argued that the applicants have only been granted leave

on two occasions, and the oversight by the Judge that leave had

been granted on three occasions influenced him to grant the

application to dismiss the action. That in fact the heads of

argument and record of appeal were prepared long before the

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second application for leave, an indication that the applicants

have always been willing to prosecute the appeal. Counsel has

placed emphasis on various other authorities in which the Court

has extended time within which to file the record of appeal.

We are not persuaded by the argument that the oversight on

the part of the learned Judge that leave had been granted three

times influenced him to dismiss the action. This is because earlier

on, the Judge had noted that there had been three applications

for

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leave to file the record of appeal. Indeed, the application for

special leave was the third application. In our view, the reference

to “three occasions” was unintentional and there is nothing to

show that it influenced the Judge to grant the application to

dismiss the appeal.

The gravamen of the Judge’s decision was that the

applicants had failed to seriously prosecute the appeal despite

being given leave on previous occasions and leave had been

granted twice.

Counsel for the applicants has further argued that the fact

that Writs of Fi.fa and Eligit have been executed is not a bar to

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restoration of the notice of appeal or extension of time to lodge

the record of appeal. In support of this proposition, he relies on

the case of Tata Zambia Limited v Zinka2 where we held that

there is no law preventing the setting aside of a default judgment

which appears to have been perfected.

Whilst the point made by the applicants’ is valid, we find no

misdirection on the part of the learned Judge when he held that

there was inordinate delay and dismissed the appeal and refused

to grant the applicants special leave. In any case, if the applicants

are agreeable to sell some property and pay the respondents in

full, as disclosed in the affidavit in opposition, the appeal will

serve no

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meaningful purpose. And as the respondents had succeeded in

their application before the single Judge, they were rightly

awarded costs. All in all, the motion lacks merit and we dismiss it

with costs.

_________________________________

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M. S. MWANAMWAMBWAACTING DEPUTY CHIEF JUSTICE

__________________________A. M. WOOD

SUPREME COURT JUDGE

___________________________R. M. C. KAOMA

SUPREME COURT JUDGE