affidavit in support of application

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.

Held:
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.
Appeal dismissed.
____________________________________
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.
_______________________________________