First National Bank of Lesotho VBokang Mohajane & Ano. (C of A (CIV) No.67.2022) [2025] LSCA 68 (7 November 2025)

# First National Bank of Lesotho VBokang Mohajane & Ano. 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(C of A (CIV) No.67.2022) [2025] LSCA 68 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 68 Copy Hearing date 14 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) No.67.2022 Judges [Dr. Mosito P](/judgments/all/?judges=Dr.%20Mosito%20P), [Sakoane CJ](/judgments/all/?judges=Sakoane%20CJ), [Musonda AJA](/judgments/all/?judges=Musonda%20AJA) Judgment date 7 November 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Arbitration and Alternate Dispute Resolution](/taxonomy/case-indexes/case-indexes-commercial-arbitration-and-alternate-dispute-resolution) * [Appeals](/taxonomy/case-indexes/case-indexes-commercial-arbitration-and-alternate-dispute-resolution-appeals) Summary ###### Flynote **_Appeal — Failure to prosecute — Rule 5 of the Court of Appeal Rules_** **_2006 — Record of proceedings not lodged within prescribed time —_** **_Effect of non-compliance — Appeal lapsing automatically —_** **_Jurisdiction of Court — Finality and procedural discipline._** Read full summary * * * Skip to document content ###### Flynote **_Appeal — Failure to prosecute — Rule 5 of the Court of Appeal Rules_** **_2006 — Record of proceedings not lodged within prescribed time —_** **_Effect of non-compliance — Appeal lapsing automatically —_** **_Jurisdiction of Court — Finality and procedural discipline._** **LESOTHO** **IN THE COURT OF APPEAL OF LESOTHO** **HELD AT MASERU** In the matter between: **C OF A (CIV) NO. 67/2022** **FIRST NATIONAL BANK OF LESOTHO APPLICANT** And **BOKANG MOHAJANE RESPONDENT** **MOEKOA THAHANE RESPONDENT** **CORAM:** MOSITO P SAKOANE CJ MUSONDA AJA **HEARD:** 14 OCTOBER 2025 **DELIVERED:** 07 NOVEMBER 2025 **FLYNOTE** **_Appeal — Failure to prosecute — Rule 5 of the Court of Appeal Rules_** **_2006 — Record of proceedings not lodged within prescribed time —_** **_Effect of non-compliance — Appeal lapsing automatically —_** **_Jurisdiction of Court — Finality and procedural discipline._** _Where an appellant fails to lodge the record of appeal within the period_ _prescribed by Rule 5(1), and no extension is sought or obtained under sub-rule_ _(2), the appeal lapses automatically by operation of Rule 5(3). Once lapsed,_ 1 _there is no extant appeal before the Court, and jurisdiction is lost unless and_ _until reinstatement is sought and granted upon good cause shown. The rule_ _serves to uphold finality and procedural order in the appellate process._**_Held:_** _the appeal, having lapsed by operation of law, is struck from the roll with costs._ **JUDGMENT** **MOSITO P** **Factual background** [1] The Applicant (_First National Bank of Lesotho Limited)_ , is a duly authorised financial institution within the Kingdom of Lesotho, with its principal offices situated at the Star Lion Building, at the corner of Kingsway and Parliament Road, Maseru. The First Respondent in the present application noted an appeal in C of A (CIV) No. 67 of 2022 on 30 September 2022. [2] Nearly three years have since elapsed, yet the First Respondent has taken no steps to prosecute his appeal. Neither he nor his legal representatives has provided any explanation for the failure to lodge the record of proceedings, nor have they sought an extension of time from this Court to do so. The appeal remains dormant, and there has been no sign of intention to advance it. [3] On the facts so far outlined, it is plain beyond peradventure that the First Respondent has abandoned all real intention of pursuing this appeal to its conclusion. The applicant before us ( who is the first respondent in the appeal), has approached this 2Court to strike the appeal from the roll for lack of prosecution. There was no appearance for the respondents before us. **Issues for determination** [4] The central question arising in this application is whether the appeal noted by the First Respondent under C of A (CIV) No. 67 of 2022 has, by operation of law, lapsed in consequence of his failure to lodge the record of proceedings within the period prescribed by Rule 5(1) of the Court of Appeal Rules 2006. If so, whether, in the result, the Applicant is entitled to the relief sought—namely, that the appeal be struck from the roll with costs. **The law** [5] Rule 5 prescribes, in exacting terms, the appellant’s duty to lodge the record of appeal within three months of filing the notice of appeal (or of filing the certificate of the judge granting leave). The provision is not merely directory: it is intended to ensure that appeals progress efficiently and that respondents are not left in prolonged uncertainty. [6] The rule also contains a measure of flexibility. Sub-rule (2) allows the parties, by written agreement, to extend the time for lodging the record. But this flexibility is constrained: absent such agreement or a specific order of the court, non-compliance triggers sub-rule (3), which provides that if the appellant fails to lodge the record within the prescribed period or within the extended period, the appeal shall lapse. [7] This language is unambiguous. It does not say the appeal may lapse, but that it shall lapse. It operates automatically, by force of 3the rule itself. Thus, where the record is not filed timeously, there ceases to be a valid appeal before the Court. What remains is merely a notice of appeal without procedural life. The rules of court are not mere technicalities but serve the administration of justice. Procedural rules are the servants, not the tyrants, of justice, yet they cannot be ignored with impunity. The discipline of the appellate process is integral to fairness between the parties and to the orderly administration of justice. The respondent is entitled to know within a defined period whether the appeal will be prosecuted, and the court’s resources must not be held hostage to indolence or neglect. [8] Once the record is not lodged within the three months (or within any agreed or ordered extension), the appeal lapses automatically by operation of Rule 5(3). The jurisdiction of the Court to entertain the appeal ceases. No further step may validly be taken in the appeal unless and until the Court, upon formal application and good cause shown, condones the failure and reinstates the appeal. [9] The rule thus serves two complementary purposes: (a), finality – it brings closure to abandoned or stagnant appeals; and (b), efficiency – it preserves the Court’s docket for appeals that are being genuinely pursued. Although Rule 5(3) is peremptory in language, it does not exclude the Court’s inherent power to control its own process. The Court retains a discretion to reinstate an appeal that has lapsed, provided the appellant satisfies it that: (a), the default was not wilful or due to gross negligence; (b), there is a reasonable and satisfactory explanation for the delay; and (c),the appeal enjoys prospects of success on the merits. This approach 4aligns with the broader equitable principles that attorney negligence may not always excuse non-compliance but that the court must weigh justice against procedural default. **Consideration of the application** [10] In the present case, it is common cause that although a notice of appeal was duly filed, no record has been lodged within the period prescribed by Rule 5(1), nor has there been any agreement under sub-rule (2) or an application for extension. The inevitable consequence, by virtue of Rule 5(3), is that the appeal has lapsed. [11] In principle, once an appeal has lapsed by operation of Rule 5(3), there is no longer a valid appeal before the Court. The effect of the lapse is automatic and self-executing: the notice of appeal remains merely a piece of paper without legal life. Strictly speaking and arguably therefore, nothing is pending on the roll that the Court can “strike off.” However — and this is crucial — the Court of Appeal still retains a residual or housekeeping jurisdiction to record formally that the appeal has lapsed and to order that it be struck from the roll for purposes of clarity, finality, and the proper management of its own process. In other words, the striking-off order does not itself cause the lapse; it recognises and declares the lapse that has already occurred by operation of law. Where the rule declares that an appeal shall lapse, the lapse is automatic; the striking-off order merely gives judicial expression to a state of affairs already produced by the rule itself. It follows that the respondent’s application to strike the appeal from the roll is well- founded. The Court’s jurisdiction to entertain the appeal cannot be revived by mere inaction or indulgence. Only a substantive 5application for reinstatement, supported by cogent explanation, could restore the appeal — and no such application has been made. **Disposal** [12] In sum, Rule 5 represents a deliberate legislative balance between procedural flexibility and finality. It obliges appellants to act with diligence, offers limited avenues for consensual or judicial extension, and imposes automatic lapse upon default. The rule protects both the respondent’s legitimate expectation of closure and the integrity of the appellate process. Accordingly, where no record has been filed and no extension obtained, the appeal lapses by operation of law, and the respondent is entitled to have it struck off the roll. **Order** [13] The appeal is struck from the roll with costs. **______________________________** **K.E. MOSITO** **PRESIDENT OF THE COURT OF APPEAL** I agree: **_____________________________** **S P SAKOANE** **CHIEF JUSTICE** 6I agree: **_____________________________** **P MUSONDA** **ACTING JUSTICE OF APPEAL** **FOR APPELLANT** : ADV S SHALE with ADV M D MJEZU **FOR RESPONDENT** : NO APPEARANCE 7 #### __Related documents ▲ To the top >