Falcon Press Limited and Another v Kangwa and Others (SCZ/8/308/2012) [2015] ZMSC 3 (14 January 2015);

SCZ RULING NO. 6/2015

IN THE SUPREME COURT OF ZAMBIA             SCZ/8/308/2012

HOLDEN AT LUSAKA

(Civil Jurisdiction)

BETWEEN:

FALCON PRESS LIMITED                                        1^ST APPLICANT

GEORGE FRANCIS ROBERTS                         2^ND APPLICANT

AND

FACKSON KATONGO KANGWA

AND 46 OTHERS                                             RESPONDENTS

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

On the 15^th of October, 2014 and 15^th January, 2015

For the Applicants: Mr. L. Kalaluka - Ellis and Company

For the Respondents: No Appearance

Kaoma, JS, delivered the Ruling of the Court.

Cases referred to:

1. NaharI Investment Limited v Grindlays Bank International (Z) Limited(1984) Z.R. 81
2. Tata Zambia Limited v Shilling Zinka (1986) Z.R. 51
3. Zambia Telecommunication Company Limited v Muyawa Liuwa- SCZ Judgment No. 16/2002

By notice of motion filed on 26^th March, 2014, the applicants seek to set aside or reverse the ruling of a single Judge delivered on

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28^th February, 2014 dismissing, for want of prosecution, the appeal that was filed by the applicants on 19^th September, 2012.

The motion is supported by three affidavits deposed to by the 2^nd 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 3^rd 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 2^nd August, 2013 within which to file the record of appeal and heads of argument. However, the record of appeal was not filed.

        On 24^th 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 28^th August, 2013 by 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 12^th November, 2013 and thereafter adjourned to 28^th 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 29^th November, 2013 within which to file the record of appeal. Again the record of appeal was not filed.

        On 20^th 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 29^th January. Two days later, on 22^nd January, the applicants filed summons for special leave to lodge the record of appeal and heads of argument out of time. The main reason given for the default in the affidavit in support sworn by the 2^nd 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 13^th December, 2013 to 6^th 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 29^th January. On 27^th January, the applicants filed their affidavit in opposition to the summons to dismiss the action for want of prosecution. Both applications were argued on 10^th 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 2^nd applicant to that effect to be hearsay. The Judge accepted that he was in Chisamba on 28^th 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.

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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 17^th 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 Judge dismissed the appeal for want of prosecution with costs, thus this motion.

        Counsel for the applicants filed skeleton arguments on 26^th 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 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 1^st 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. 

There is also no dispute, as deposed by the 2^nd applicant in the 1^st 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.

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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.

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

had been a delay in applying for special leave was 12^th December, 2013 or the second week of January, 2014, when the applicants’ advocates became aware of the existence of the ruling and not 19^th 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 12^th December, 2013 or 16^th January, 2014 to 22^nd January, 2014, cannot amount to inordinate delay and in fact, the learned Judge stated in the Ruling of 28^th

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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.

The applicants have also attacked the Judge’s finding that there was no truth in the 2^nd 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.

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 2^nd 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 28^th 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 2^nd 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 3^rd 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

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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 28^th 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 29^th November, 2013 to 20^th 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 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 2^nd affidavit of Margaret Siame.

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 22^nd 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 23^rd 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 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 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 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.

_________________________________

M. S. MWANAMWAMBWA

ACTING DEPUTY CHIEF JUSTICE

__________________________

A. M. WOOD

SUPREME COURT JUDGE

___________________________

R. M. C. KAOMA

SUPREME COURT JUDGE