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The Brief facts leading to this appeal are that Willard Solomon ' Nthanga and 52 others commenced an action against the, respondent in the High Court on 28th November, 2000. The learned Deputy Registrar then ordered the joinder of 201 more plaintiffs and the number of plaintiffs increased from 53 to 254. On 8th September, 2003, the learned Judge also granted an application allowing the plaintiffs to amend the writ of summons to add 81 more individuals as plaintiffs, which further increased the number of plaintiffs to 334. The events that followed are at the centre of the dispute in this appeal. It is not clear whether the plaintiffs made a subsequent application to join 68 more individuals as plaintiffs. However, the record shows that on 10th February, 2005, Counsel for the plaintiffs filed an application to amend the writ of summons to add 68 more plaintiffs.
The application was supported by an affidavit in which Mr. Mukande SC deposed that he had received further instructions that a number of former employees were not included on the amended writ of summons which the plaintiffs had filed earlier. It should be noted that there is nothing on record to show that this application was heard or that it was granted by the Court. The matter proceeded to trial and the 68 individuals participated in the proceedings as if they had been formally joined. The number of plaintiffs on record also increased from 334 to 402. After trial, the High Court found in favour of the plaintiffs.
The plaintiffs were again successful when the matter went on appeal to the Supreme Court and it was referred to the learned Deputy Registrar for assessment. At assessment, a preliminary issue was raised by State Counsel Silwamba on behalf of the appellant that the 68 individuals were wrongly before Court because there was no Court order joining them to the proceedings as plaintiffs. The learned Deputy Registrar heard the preliminary objection and dismissed it. He found that the plaintiffs filed an application for leave to amend the writ of summons, which was intended to achieve the joinder of the 68 individuals to the proceedings. He noted that although the application was filed, there was no order granting the application but the 68 individuals were subsequently treated as part of the proceedings.
The learned Deputy Registrar found that the erroneous joinder 1 of the 68 individuals was a pure procedural failure, which could not be wholly blamed on them. He took the view that striking out the 68 individuals as plaintiffs would entail a total failure or defeat of the suit, which would be at odds with Order 14 rule 5(3) of the High Court Rules which provides that no suit shall be defeated by reason of non-joinder or misjoinder of parties. The appellants appealed to a Judge of the High Court against the decision of the Deputy Registrar. The learned Judge found that while the application to join the 68 individuals was made, there was no Court order granting the application. He took the view that the learned Deputy Registrar's decision which was based on Order 14 rule 5(3) of the High Court Rules was invalid in that striking out the 68 individuals would not have resulted in the defeat of the suit as assessment would still have proceeded with the valid parties to the suit. In his view, the fact that the 68 individuals took part in the prosecution of their claim both in the High Court and the Supreme Court was sufficient proof that their application was made before Judgment.
He was satisfied that this was a proper case in which to exercise his inherent jurisdiction to formalize the addition of the 68 persons as Plaintiffs. He therefore dismissed the appellant's appeal and ordered that the 68 individuals be formally deemed to have been added to the suit with effect from a date which was 21 days after they filed their application to amend the writ of summons. It is against the decision by the learned Judge that the appellant appealed to this Court advancing two grounds of appeal expressed in the following terms:
In view of the glaring irregularities that we have highlighted in this matter, it is our considered view that the learned Judge in the Court below did not properly exercise his inherent jurisdiction. We shall therefore allow this appeal and set aside the decision of the learned Judge and that of the learned Deputy Registrar. We make no order as to costs.
Civil Procedure- Application for leave to appeal – Documents filed with the court must contain draft grounds – Effect of failure to include draft grounds of appeal
Civil procedure – Effects of, and rationale for, money paid into Court before trial – Acceptance of money paid into court after judgment
Civil procedure – Supreme Court – Rule 12 of the Supreme Court Rules on extension of time for leave to appeal – Whether provision applies in any event, or only when leave granted or refused
Civil procedure – Application for leave to appeal out of time declined by High Court – Application to be renewed before single Judge of Supreme Court rather than appealed against
The 2nd Respondent, as judgment debtor, applied to set aside an intended conveyance or foreclosure and for an order for directions. The learned Judge delivered his ruling in favour of the Respondents on 14 August 2012 and granted leave to the Appellant to appeal. The Appellant however failed to do so within the period prescribed. On 18 October 2012, the Appellant filed into the lower court a summons for leave to appeal out of time pursuant to Rule 12 of the Supreme Court Rules chapter 25 of the laws of Zambia, supported by an affidavit.
After hearing and considering the submissions for and against the application, the learned judge stated that the Appellant had not given sufficient reasons for the court to grant leave to appeal out of time. The Judge found that there was nothing that prevented the Appellant from filing a notice of appeal within the stipulated time while any ex curia negotiations were going on. Further, that the applicant did not show the court any prospects of success of the appeal. The application was accordingly refused.
The Appellant appealed.
1. Rule 12 of the Supreme Court Rulesª allows the Supreme Court to hear an application for extension of time, in this case, within which to apply for leave to appeal. In terms of Rule 50, the High Court may grant or refuse leave to appeal without formal application at the time when judgment is given. Where leave is given, the appellant shall proceed to give notice of appeal in accordance with the provision of Rule 49. Where leave was neither granted nor denied at the time judgment is given, the application for leave shall be by motion or summons, which shall state the grounds of the application, and shall, if necessary, be supported by affidavit. Clearly this Rule applies when the court which delivered the judgment, grants leave to appeal or when it refuses to grant leave. In this case, the learned judge granted leave to appeal his ruling, and the Appellant, not having appealed within time, sought leave to file a notice of appeal out of time.
2. An application for leave to file an appeal out of time which is made in terms of Rule 50 of the Supreme Court Rules and declined by the High Court, could still be granted by the single judge of the Supreme Court on application made in terms of Rule 17 of the Supreme Court Rules. That means such application will take the form of a renewed application before a single judge. It should not come to the full court by way of appeal from the High Court. Therefore, upon the High Court declining the application for leave to file appeal out of time, the appropriate thing for the Appellant to have done should have been to renew the application before a single judge of the Supreme court, with the prospect of escalating the application to the full court, in the event that the single judge declined to grant it. By lodging an appeal rather than a renewed application before a single judge, the procedure adopted by the Appellant was, therefore, wrong and this appeal is bound to fail on that basis alone.
ªRule 12 of the Supreme Court Rules, Chapter 25 of the Laws of Zambia, 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 for such purpose was so limited by the order of the court or by these Rules, or by any written law.
Regulatory breach - effect of breach not always fatal when rule is merely regulatory or directory