Meanwood Venture Capital Limited v Capellaro Investments Limited (Trading as Kifco Packaging in Receivership) (SCZ/8/23/2021) (23 December 2021) – ZambiaLII

' IN THE SUPREME COURT OF ZAMBIA ' SCZ/8/23/2021 . HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: MEANWOOD VENTURE CAPITAL LIMI AND DEC 2021 CAPELLARO INVESTMENTS LIMITED (Trading as Kifco Packaging in Receivership) Before the Hon. Justice Dr. Mumba Malila in Chambers on the 28th September 2021 and 23•d December 2021. For the Applicant: Mr. B. Mosha of Messrs Mosha & Co. For the Respondent: N/A RULING Cases referred to: 1. Zamtel Co Ltd v. Mutawa Liuwa SCZ/ 16/ 2002 2. Henry Kapoko v. The People (2016/CC/0023) 3. Century Enterprises v. Greenland Bank 4. Muchika Farm Ltd ·v. Attorney General & 2 Others 5. Barclays Bank Pie v. Jeremiah Njovu & 41 Others SCZ/09/21/2019 6. Stanley Mwabezi v. Monester Farm Ltd (1977) ZR 108 7. Twampane Mining Cooperation Ltd v. E. & M. Start Mining Ltd (SCZ No 20 of 2011) 8. Lapemba Trading Limited v. Pemba Lapidaries & Industrial Credit Co. (Appeal No 47/2014) 9. Saviour Chibiya v. Crystal Garden Lodge & Restaurant Ltd (Appeal No 97/2013) R2 I regret the delay in delivering this ruling. A variety of factors conspired to make it impossible for me to deliver it earlier. There are two applications before me both moved by the respondent in the caption (which is the applicant in this application). The first is for an order for extension of time within which to apply for leave to appeal to the Supreme Court. The other is for leave to appeal to the Supreme Court. The two applications are supported by a combined affidavit sworn by Agness Ngoma, who is the receiver of the respondent company. She avers in her affidavit that on the 20th November 2020, the Court of Appeal delivered a judgment upholding the Order of the High Court dated 12th August 2020 directing a refund of the monies paid by the appellant towards the purchase of a property and that such monies are to be paid with interest. The High Court, she says, also ordered that in the event of default by the applicant in refunding the money, the property will be conveyed to the respondent. The applicant was unhappy with the judgment of the Court of Appeal and thus instructed its Advocates on 18th December 2020 to apply for leave to appeal to the Supreme Court, contending that the R3 intended appeal raised a point of law of public importance. That application for leave was, however, filed some six days late. On realising this, the applicant applied to withdraw the application. The applicant then renewed the application before the full Court of Appeal on 5th February 2021. The Court of Appeal denied the application on the same day. The applicant has now renewed the application before me. The deponent of the affidavit in support avers that her lawyers were laboring under the honest but mistaken belief that the applicant had 30 days within which to appeal. In consequence, a delay in filling the necessary application occurred. This is what has motivated the present application for an order for extension of time within which to appeal to the Supreme Court. Simultaneously, the applicant has filed summons for an order for leave to appeal to the Supreme Court so as not to waste the court's time. It is further stated in the supporting affidavit that on the basis of the grounds of the proposed appeal, a copy of which is annexed to the affidavit, the appeal raises a point of law of public importance and the application should thus be allowed. R4 The deponent also claims that the Court of Appeal rendered its judgment relying on the order that was rendered by the High Court without having regard to the fact that that court ordered a conveyance that was not legally tenable as the property' in question belongs to a quasi-government body. In the ruling of the Court of Appeal dated 3rd September 2021, the Court observed that the applicant sought to appeal its judgment delivered on 20th November 2020 contrary to section 13(2) of the· Court of Appeal Act which provides that an application for leave to appeal to the Supreme Court against a judgment must be made within 14 days of the Judgment. The applicant should have made its application no later than 4th December 2020. It only made its application on 11th December 2020. The Court of Appeal observed that the application for extension of time was made 60 days late and even then only as a reaction to the respondents' averement in its affidavit in opposition. The court quoted a passage from the Supreme Court judgment in Zamtel Co Ltd v. Mutawa Liuwa1 where the court stated that: RS The appellant who sits back until there is an application to dismiss their appeal before making their own application for extension of time, do so at their own peril. The court also noted that the only reason provided for the delay of over 60 days is that counsel was under a mistaken belief that he had 30 days within which to apply for leave to appeal to the Supreme Court. The Court of Appeal thus dismissed the application as being unmeritorious. That dismissal of the application quite annoyed the applicant and hence the current renewed application before me as a single judge. The proposed grounds of appeal were reproduced 1n an exhibit annexed to the affidavit in support as follows: 1. The Court of Appeal erred in law by upholding the order of the High Court dated 12th August 2020 by reason of it having been proceduirally varied by the High Couirt judge without regard to the said judge's reasoning that the conveyance directed in the order was not legally tenable. 2. The court of Appeal misdirected itself by upholding an order that was unsound in equity and at law and whose effect was to unjustly enrich the appellant by awarding it the benefit of the. property being conveyed to it, interest not withstanding that it already had possession of the property. R6 3. The Court of Appeal erred at law by not exercising its power to order a trial of the matter before the High Court judge in view of the facts alluded to by the High Court judge in her ruling of 5th February 2020 touching on the third-party mortgage and the fact that the appellant had not paid the full purchase price. 4. The Court of Appeal erred by upholding the High Court order to convey effectively extinguished the legal rights of a non party who did not have an opportunity to be heard and instead should have ordered a retrial erred in law and equity (Sic!) The application was opposed. The affidavit in opposition was signed by Diana Nciwa Kolala, Head, Investments in the appellant company. The first point made in the affidavit in opposition was that the contents of the affidavit in support were factually untrue to the extent that the deponent avers that the Court of Appeal in its judgment of 20th November 2020 upheld the High Court order dated 12th August 2020 which was never the subject of the appeal before the Court of Appeal. There was attached to the affidavit in opposition a copy of the memorandum of appeal filed on behalf of the applicant. The deponent of the affidavit in opposition also averred that the Court of Appeal set aside a ruling of the High Court dated 5th February 2020 on the ground that the High Court judge on her own motion moved R7 and reviewed her order dated 12th August 2019 when she had no power to do so. As regards the properties in issue, it was the respondent's position that they did belong to the applicant and not a quasi-government body as claimed. Copies of the certificates of title were annexed to the affidavit. In all it was averred that the grounds of appeal have no merit. The applicant filed skeleton arguments and list of authorities in which various issues were canvassed. As regards jurisdiction, it was submitted that I have jurisdiction to hear and determine the application before me. The applicant pointed to, among other provisions, section 24 of the Supreme Court (Amendment) Act No 24 of 2016, section 17 of the Supreme Court (Amendment) Act No 24 of 2016 and Rule 12 of the Supreme Court Rules, to support the submission that among them, these provisions do donate sufficient power to me to deal with the application in the manner the applicant is urging me to do. As regards the merits of the application, the applicant submitted that although ultimately the application was at the mercy of the court, RS Article 118(2) (e) enJ01ns the court to deal with matters before it without undue regard to procedural technicalities. Counsel quoted a passage from the Constitutional Court judgment in Henry Kapok v. The People2 when, in following the case of Century Enterprises v. Greenland Bank3, it stated that: "The administration of justice should normally require that the substance of all disputes be investigated and decided on the merits, and that errors and lapses should not necessarily debar a litigant from the pursuit of his rights. However, that this did not mean that rules of procedure should be ignored with impunity." Counsel referred to two other Constitutional Court decisions interpreting Article 118(2) (e) of the Constitution before submitting that the application for leave to appeal which was six days late presents a technicality that should not deter the appeal from being heard. On a different note, it was submitted on behalf of the applicant that a delay to file for leave to appeal was initially for six days which cannot be said to be inordinate, nor can the applicant be said to have sat on its constitutional rights. This, according to counsel, is in contrast to the position in numerous case authorities such as R9 Muchika Farm Ltd v. Attorney General & 2 Others4 where a delay of 1 year 7 months was held to be inordinate. Counsel for the applicant then correctly referred to the decision in the case of Barclays Bank Pie v. Jeremiah Njovu & 41 Others5 where the Supreme Court stated that absence of leave to appeal went to the jurisdiction of the appellate court. He then dwelt at length on the desirability for matters to be determined on their merits rather than on technicalities. The case of Stanley Mwabezi v. Monester Farm Ltd6 was cited to buttress that submission. I was urged·on all the forgoing grounds to grant the application. In opposing the application skeleton arguments were filed on behalf of the respondent to the motion. It was pointed out to begin with that the court has discretion to extend time for any application. Rule 12 of the Supreme Court Rules which gives this power to the court however provides that an application for extension of time should be filed within 21 days. This, according to the respondent's counsel, makes the applicant's application made on 18th December 2020 a RlO nullity. The application made on the 5th February 2021 came after a delay of 54 days. Counsel refer to the Supreme Court decision in Twampane Mining Cooperation Ltd v. E. & M. Start Mining Ltd7 where the court held that a delay of 39 days was inordinate. This, a_ccording to counsel, makes the delay of 54 days in the present case, very inordinate. It was also submitted that all the authorities cited by the applicant are united in their requirement that there ought to be sufficient reasons for the court to exercise discretion to extend time. The learned counsel for the respondent submitted that he was wholly unable to comprehend how an advocate with audience before the apex court can labour under a misapprehension of this nature. Court rules are clear. It is, according to counsel, irresponsible for the· applicant to premise the prosecution of an appeal to the apex court on a misapprehension. As regards the claim that the properties in question do not belong to the applicant, counsel reiterated that, that claim is factually incorrect but in any event, the third party who may have an interest, is not precluded from joining the proceedings. Rll Finally, counsel argued that the intended appeal emanates from the applicant's failure to fully comprehend the Court of Appeal's judgment. The court did not uphold the order dated 9th August 2019 which is the subject of the intended appeal. The Court of Appeal dealt with the ruling of 5th February 2020 in which it proposed to exercise a power that it did not possess. Counsel concluded that the intended appeal is devoid of merit and thus the application should be dismissed. At the hearing of the application, Mr. Mosha appeared for the applicant while no appearance was recorded for the respondent. I was satisfied by Mr. Mosha's explanation that the respondent was served with the application as evidenced by the fact that they have responded, opposing the application. I was thus content to proceed in the absence of the respondent's representatives. Mr. Mosha introduced the application without anything much to add beyond what is already out in the documents filed and upon which he relied. R12 I have carefully considered the applications before me. In my view the main application before me is one for extension of time within which to file an application for leave to appeal. The application was declined by the Court of Appeal for reasons which I have earlier referred to. The applicant has placed reliance on Rule 12 of the Rules of the Supreme Court which provides as follows: "The court shall have power for sufficient reason to extend time for making any application, including an application for leave to appeal, or for bringing any appeal, or for taking any step in or in connection with any appeal, notwithstanding that the time limited therefore may have expired, and whether the time limited for such purpose was so limited by the order of the court or by these Rules, or by any written law". It is pertinent to observe that by section 4 of the Supreme Court Act, chapter 25 of the Laws of Zambia, a single judge of the Supreme Court is empowered to exercise any power vested in the court not involving the decision of an appeal or a final decision in the exercise of its original jurisdiction. This means that I may grant an order for extension of time. In Lapemba Trading Limited v. Pemba Lapidaries & Industrial Credit Co8 the Supreme Court stated as follows: R13 "It hardly bears mentioning that every application before a court is grounded on specific requirements which must be established for the court to grant the relief sought. Thus, an application for leave to appeal, for example, requires that the applicant shows prospects of success of the intended appeal. An application to set aside a default judgment should disclose a defence on the merits. In the case of an application for special leave to review a judgment, a plausible reason for the delay ought to be adduced. And we could go on with these examples. A court considering an application for special leave to review is not expected to grant every application as a matter of course. The purpose of the rules insisting that those seeking special leave to review should do so through an application supported by an affidavit, is to ensure that the applicant furnishes to the court the reasons for the failure to make the application to review within the time prescribed. It follows that such reasons must be veritable, verifiable and should, in any case, offer a reasonable account for the delay." Before me, and as I have stated already, the application is for extension of time. I, however, perceive it in much the same way as an application for special leave which was the subject of the Supreme Court decision in Lapemba8• The reasoning cannot be any different. The applicant says that the failure to lodge the application in time was due to counsel's failure to appreciate the state of the law. Holy Moses! It is regrettable that counsel can put forth his failure to read and understand the rules as an excuse for the delay. R14 As we observed in the case of Saviour Chibiya v. Crystal Garden Lodge and Restaurant Ltd9 litigants whose lawyers, because of their inadequacies or lack of attention or clumsiness, cause loss to litigant's cases, have themselves to thank. My view is that the reason given by the applicant for failure to follow the rules is not cogent enough. I am thus inclined to reject the application on that basis alone. Even assuming that I were to grant the application for extension of time,. I think that the long term objective in granting such application, that is to say, to seek and obtain leave to appeal, is likely to suffer a similar fate. A perusal of the proposed grounds of appeal show quite clearly that they raise no point of law of public importance nor do they present any prospects of real eventual success. The application is thus dismissed with costs. n.__.....umba Malila, SC SUPREME COURT JUDGE