Judgment Delivered on 9th November 2011
Court: In the Supreme Court of Zambia
Panel: Chirwa, Mwanamwambwa, and Muyovwe, JJS.
Judgment
of the Court by: Muyovwe, J.S.
Subject
Matter: Civil
Procedure in Zambia – Appeal – Time limit for – Application for extension of
time in Zambia – Grounds for granting; Whether attempts at ex curia settlement
stop the time running out within which to appeal.
Facts:
This case involves an appeal by Twampane
Mining Co-operative Society Limited (the appellant) against a ruling of the
Kitwe High Court. The High Court had refused to grant the appellant an
extension of time within which to appeal. The ruling intended to be appealed
against was delivered on April 16, 2009, and leave to appeal to the Supreme
Court was granted on the same day. The appellant had 30 days to file the appeal
but failed to do so, only filing an application for leave to appeal out of time
on June 24, 2009, which was 39 days after the appeal period expired. The
appellant's explanation for the delay was the need to consult its members
dispersed in different towns. The High Court found the delay unreasonable,
especially as the matter arose from an arbitral award, and noted that attempts
at ex-curia settlement only began after the application for extension was
filed. The High Court also found that the prospect of the appellant succeeding
on appeal was dim.
Issues:
·
Whether the High Court
erred in disallowing the application to extend time within which to appeal.
·
Whether the High Court
erred in delving into the merits of the intended appeal when considering the
application for extension of time.
·
Whether the High Court
erred in not taking judicial notice of ex-curia settlement discussions as a
reason for the delay.
Holding:
Ex-curia
Settlement Discussions: The Court held that
ex-curia settlement discussions do not and cannot stop the time from running
for an appeal. It was noted that the appellant's primary reason for delay was
consulting members, and the ex-curia discussions were an afterthought,
occurring after the time limit had expired.
Promptness
of Application: Applications for extension of
time must be made promptly. The appellant waited 39 days after the appeal
period expired, which was deemed an unreasonable delay.
Discretion
of the Court: The granting of an extension of
time is entirely at the discretion of the Court, but such discretion will not
be exercised without good cause. The Court emphasized that rules of court must
be obeyed, and there must be material on which the Court can exercise its
discretion.
Merits
of the Appeal: An appellate Court is entitled to
look into the merits of the appeal when considering an application for
extension of time. The Court found no contradiction in the High Court granting
leave to appeal and then considering the merits, as the appellant's default
opened its case to further scrutiny.
Adherence
to Rules: The Court stressed the importance of
adhering to the Rules of Court to ensure orderly and expeditious handling of
matters, stating that those who ignore these rules do so at their own peril.
The appellant's failure to appeal within the prescribed period, not filing the
application promptly, and failing to attend the arbitration proceedings (whose
award was final) indicated a lack of merit for an extension.
The appeal was dismissed, with costs to
the respondent, affirming the High Court's decision to refuse an extension of
time.
Full Case: Here