Mutinta Hanyinde (Suing as widow and Administratrix of the Estate of the late Borniface Chimpembele) v Josephine Chapipa and Ors (2023/HPF/301) (1 September 2023) – ZambiaLII

Rl IN THE HIGH COURT OF ZAMBIA 2023/HPF/301 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Family Jurisdiction} BETWEEN: MUTINTA HANYINDE (Suing as widow and Administratrix APPLICANT of the Estate of the late Borniface Chimpembele} AND JOSEPHINE CHAPIPA 1s r RESPONDENT OSCAR HANGOOMA 2ND RESPONDENT OBRIEN CHIPEMBELE 3Ro RESPONDENT AUDITOR MOONGA 4rH RESPONDENT Before the Ho,:iorable Mrs. T.S Musonda For the Applicant : Mr. Anthony Mukanda from Messrs. H.M. Ndhlovu & Co ---------------------------------------------------------------------------------------------- RULING ---- --------------------------------------------------------------------------------------- Legislation referred to: 1. The Constitution (Amendment} Act, No.2 of 2016 2. The High Court Act, Chapter 27 of the Laws of Zambia 3. The Subordinate Court Act, Chapter 28 of the Laws of Zambia Cases referred to: 1. Zambia Telecommunications Company Limited V lreen Simate and Others, CAZ/08/006/2017 2. D.E Nkhuwa V Lusaka Tyre Services Limited, (1977) Z.R 43 3. Costellow V Somerset County Council, [1993f 1 WLR 256 4. Twampane Co-operative Society Limited V Storti Mining Limited, S.C.Z Jugdment No. 20 of 2011 5. Henry Kapoko V The People, (2016}'ZMSC 24 6. Access Bank (Zambia} Limited V Group Five/Zcon Business Park Joint Venture, CCZ SJ No.43 of 2016 CamScanner R2 INTRODUCTION 1. This is a Ruling on the Applicant's Exparte application for leave to appeal out of time. 2 . The Court was moved by way of Exp a rte Summons filed by the Applicant herein on 9th June 2023 filed pursuant to Order 3 Rule 2 of the High Court Rules, Chapter 27 of the Laws of Zambia. The application was supported by Affidavit of even date and Skeleton Arguments both dated 9th June 2023. THE APPLICANT'S CASE IN SUPPORT OF THE APPLICATION 3. Counsel on behalf of the Applicant submitted that this Court had inherent powers and jurisdiction to do what was just in the interest of justice. 4. Counsel cited the case of Zambia Telecommunications Company Limited V lreen Si mate and Others (1} where the Supreme Court stated that an application for extension of time required an applicant to disclose a plausible reason for the delay and why more time was required. Further, that a Court would consider prospects of injustice, the length of the delay and the degree of prejudice if any to the other party. Every application was to be considered using different considerations. 5. Counsel also cited the case of D.E.Nkhuwa V Lusaka Tyre Services (2} where the Supreme Court held that an application for extension of time was entirely in the discretion of the Court and this discretion was to be exercised judiciously. 6. Counsel submitted that in the present application, the delay in bring the application was not inordinate as the record would disclose that the Applicant was joined to these proceedings in October 2022. That the application for extension of time for leave to appeal out of time before the Subordinate Court was made on 20th March 2023 and the Court's Ruling was only delivered two months later. CamScanner R3 7. It was the Applicant's position that the delay was occasioned by excuria discussions between the parties. 8 . Counsel submitted that whilst it was acknowledged that excuria discussions do not stop time from running, the interests of justice demand that the door of justice should not be shut for the party who wished to be heard as long as the other party was not prejudiced. 9. Counsel urged this Court to take note of Article 118 (2)(e) of the Constitution of Zambia (Amendment) Act. No. 2 of 2016 and the case of Costellow V Somerset County Council(3).ln the Costellow case, the Court heldthat a party should not in the ordinary be denied the adjudication of his claim on its merits beca·use of a procedural default unless the default caused prejudice to the opponent. 10. This Court was also implored to take judicial notice of the proliferation and wanton harassment and ill treatment of female citizens in this Country upon the death of spouses who die intestate. The Applicant thus wished to raise issues that could only be dealt with by the High Court. The High Court would only have the opportunity to address the issues if this application were granted. 11. In conclusion, Counsel submitted that reliance would be made on the Applicant's depositions in the Affidavit and Skeleton Arguments filed on 9th June 2023. ISSUE FOR DETERMINATION 12. I have considered the Applicant's application as set out in the supporting Affidavit, Skeleton Arguments and Counsel's oral submissions. 13. The main issue for determination is whether the Applicant's application for leave to appeal out of time should be granted. CamScanner R4 THE LAW, ANALYSIS AND DETERMINATION 14. The principles governing leave to appeal out of time are settled. The successful party must demonstrate "sufficient cause" for not filing the appeal in time. The Supreme Court in D.E.Nkhuwa V Lusaka Tyre Services Limitedwhich was cited by Counsel in the oral submissions and Skeleton Arguments, held as follows page 47: ...... The provisions in the Rules allowing for extensions of time are there to ensure that if circumstances prevail which make it impossible or even extremely difficult for parties to take procedural steps within prescribed times relief will be given where the Court is satisfied that circumstances demand it. It must be emphasized that before this Court is able to exercise its discretion to grant such relief there must be material before it on which it can act. 15. It is clear from the above authority .that, whilst the discretion of this Court is unfettered, an Applicant is required to adduce material upon which the Court should exercise its discretion. T~e Court's discretion must be exercised judiciously on proper analysis of facts and proper application of the law to the facts. 16. The Supreme Court in the case of Twampane Co-operative Society Limited V Storti Mining Limited (4) further guided as follows: 1. .. .. 2 . ... . 3.Applications for extension of time should be made promptly. 4 . ...... CamScanner RS 5.lt is important to adhere to Rules of Court in order to ensure that matters are heard in an orderly and expeditious manner. 6.Those who choose to ignore Rules of Court do so at their own peril. 1 7 . It should be noted that the cases of Henry Kapoko V The People ~and Access Bank (Zambia) Limited V Group Five/Zcon Business Park Joint Venture (6), are instructive that Article 118 (2) Utl of the Constitution of the Republic of Zambia was not meant to act as a shield in all circumstances. That parties cannot therefore hide behind Article 118 (2) (e), to flout rules of procedure, even when where the same constitute technicalities. The Supreme Court in the Access Bank (Zambia) Limited case stated that: ..... all we can say is that the Constitution never means to oust the obligations of litigants to comply with procedural imperatives as they seek justice from the courts. 18 . The issue for determination is in the case at hand is whether the Applicant has made out a case for the exercise of this Court's discretion to grant this application for leave to appeal out of time. 19. Judgment in this matter was delivered on 1st September 2022. The Applicant in paragraph· 16 of the Affidavit in support averred that after the delivery of the aforesaid Judgment, she applied to be joined to these proceedings. 2 O . She further averred in paragraph l 7 that she filed her notice of intention to appeal to this Court but due to excuria discussions, she abandoned the appeal. CamScanner R6 21. In paragraph 18 she averred that the said excuria discussions were not successful and the Respondents had since been hostile to her and literally decimated her late husband's estate. 2 2 . In paragraph 19 she averred that she applied to be granted leave to appeal out of time. The said application was denied as evidenced by the Court's ruling dated 20th March 2023, exhibit "MH6". 23. In paragraph 22 she averred that she was desirous of appealing the Subordinate Court's Judgment of 1st September 2022. It was her position in paragraph 24 that the delay in filing this application was regrettable but inadvertent. Further, in paragraph 25 that the application if granted would not prejudice the Respondents but would occasion substantial justice. 2 4. I have considered the reasons advanced by the Applicant for the default to appeal against the Subordinate Court's Judgment of l st September 2022 within time. 2 5 . According to the Skeleton Arguments the present application was filed with the within the three months prescribed in Order 48 Rule 4 of the High Court Rules. It is my view that Order 48 Rule 4, applies to appeals against decisions of the High Court and not appeals from the decisions of the Subordinate Court. 2 6 . This can be discerned from Order 48 Rule 3 which clearly stipulates that after one month from the date of a final judgment or decision, an application for conditional leave to appeal shall not be entertained by the Court below. The Court below referred · to is the Subordinate Court. 27 . Further, the time within which appeals against decisions or Judgments of the Subordinate Court should be lodged is thirty days and against any interlocutory decision, fourteen days as CamScanner R7 provided for in Order 44 Rule 2 (1) of the Subordinate Court's Act. Chapter 28 of the Laws of Zambia. 2 8 . What this Court has noted is that whilst the Applicant averred that the delay to appeal against the Subordinate Court's Judgment was inadvertent, the delay to file this application within the prescribed time was not addressed. This is considering that the Subordinate Court's Ruling which denied leave to appeal out of time was delivered on 30th March 2023, and this application was file two months later on 9th June 2023. 2 9 . The Applicant in her affidavit and Counsel in his oral submissions concentrated on events that occurred after the Subordinate Court delivered its Judgment and also on the delay to deliver its Ruling. No explanation was rendered over the default in filing this application. The delay in filing this ,a pplication can under the circumstances of this case not beattributed to the Subordinate Court which delivered its Judgment on· 1st September 2022 and the Applicant opted not to proceed with her appeal due to excuria discussions. As correctly submitted by Counsel, excuria discussions do not stop time from running. 30. It should always be borne in mind as stated in the D.E Nkhuwa case that in order for a Court to exercise its discretion to grant an Order for extension of time within which to do an act, there must be material before it on which it can act. Further, ttrat parties cannot hide behind Article 118 (2) (e} of the Constitution.to flout rules of procedure, even when where the same constitute technicalities as was held in the Henry Kapokoand Access Bank (Zambia) Limited cases. 31 . The only question to be decided is whether this Court should exercise its discretion to grant the Order sought for leave to appeal out of time. CamScanner R8 32 . Having considered the Subordinate Court's Judgment of Jst September 2022, and the Memorandum of Appeal, I hold the view that it will not be in the interest of justice to bar the Applicant from exercising her right of appeal. Indeed, the Applicant should not be denied access to the seat of justice, despite her default. I have taken into consideration that the Applicant filed this application on 9th June 2023, which was about 2 months and 9 days after the Subordinate Court rendered its Ruling on 301h March 2023. I do not find the delay to be totally unreasonable and inordinate. 33 . After due consideration of all I have stated above, I find that this is a case in which I can exercise my discretion to grant the Order sought. 34. In the upshot, I allow the application for an Order for leave to . appeal out of time. The Applicant is accordingly by this Ruling, granted leave to file the appeal out of time. CONCLUSION 35. In conclusion I make the following Orders: (i) The Applicant is granted leave to appeal out of time and shall file and serve the Notice and Memorandum of Appeal within 21 days from the date herein. (ii) Costs shall be in the cause. CamScanner