Mary Begg Memorial Clinic Limited v Keno Mwamba Sangwa (CAZ/08/468/2025) (5 December 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/4 I? 025 J, ,<.,,, ., l HOLDEN AT LUSAKA / V· I I (Civil Jurisdiction) ' · o5 DEC 2025 :/ - ~ BETWEEN: j, \ J .,,~ . I MARY BEGG MEMORIAL CLINIC LIMITED APPELLANT AND KENO MWAMBA SANGWA RESPONDENT Before the Hon. Lady Justice F. M. Chishimba in Chambers. For the Appellants: Mr. K. Nalombwa of Messrs AMW & Co. Legal Practitioners ✓ For the Respondent: Mr. M. Benwa of Messrs Mike Benwa Legal Practitioners RULING CASES REFERRED TO: 1. Cbimanga Changa Limited v Chipango Ngombe SCZ Judgment No. 5 of 2010 2. Cai-tone Management Company Lhnited v Musonda Chizhinga 3. llep Barth Mover• v Rapld Global Freight AZ Appeal No. 193 of 4• ~•• i,allk (ZaJllbia) Lunltod v Group Jl'ive/ZCON Business Park J'oblt Vootu.ro {9CZ/8/ > S l'lnt QuaAWIII Mtsd»I •Pd Oporationa Limited v David Sendwe 2a •IMI Otb4tr• CAZ ~pptal 1fo, of 2023 · · ctatlon Ltd v Nonve ,_ ,6. t,epJ Reaou.rc•• YoUJI -· · ... l-.n Pclinistry of Foreign f 201'1) I A«.1,• {CAZ Appoal Jfo, a R2 7. Moses Vera v African Banking Corporation Limited CAZ App, lfo, SP/11/2021 s. Prisca Lubungu v Obby Kapango & Others SCZ Appeal No.216/2016 th0 9. Ndola City Council, and Zambia Revenue Au rity v Jayesh Shah 10. Sipalo v Mundia (1966) ZR 105 11. Nigel George Seabrook, Turner Construction Limited v Cathrine Hovstad Van Aard CAZ Application No. 36/2025 Consolidated Appeal No. 220 of 2024 12. Sangwa and Simeza, Sangwa & Associates v Hotellier Limited and Ody's Work Limited (SCZ 8 402 of 2012) LEGISLATION REFERRED TO: 1. The Court of Appeal Rules Statutory Instrument No. 65 of 2016 1.0 INTRODUCTION 1. 1 This an application by the Respondent to dismiss the appeal for want of service. The Application is made pursuant to Order 10 rule 3(9) of the Court of Appeal Rules Statutory Instrument No. 65 of 2016 (CAR). 2.0 RESPONDENT'S AFFIDAVIT IN SUPPORT 2.1 The affidavit in support of the application was deposed to by Keno Mwamba Sangwa, the Respondent herein. He deposed that on or about 1st September 2025, the learned Judge, Mr Justice D.C. Mumba, delivered judgment in his favour. 2.2 A search of the court record established that on or about gth September 2025, the Appellant filed a Notice and R3 Memorandum of Appeal. The search also revealed that there was no application by the Appellant for leave to extend the time within which to take any further step. 2.3 The Appellant was required to serve the Notice and Memorandum of Appeal within 14 days of filing. However, more than thirty-five days had passed since the filing of those documents and no service had been effected on Respondent or his advocates. The Appellant had failed, refused, or neglected to serve the documents within the time prescribed by the Rules. 2.4 In view of this non-compliance, the appeal should be dismissed for want of service, further that the delay occasioned by the Appellant is inordinate and inexcusable and that it has resulted in great injustice to him. 3.0 APPELLANT'S AFFIDAYIT IN OPPOSITION 3. 1 The Appellant filed an affidavit in opposition deposed to by Kate Nalondwa, the Appellant's Advocate. She deposed that on 2 l st October 2025, the Appellant filed an ex parte application for leave to file an application for extension of time within which to effect service of the Notice and Memorandum of Appeal. The said application sets out the basis for the R4 delay, which she stated was not deliberate, and that the application is already on the Court's record. 3.2 The Respondent's application to dismiss the appeal is premature in light of that pending application for leave. That this Court has jurisdiction to grant leave to apply for an extension in order to comply with any procedural step in the prosecution of an appeal. 3.3 On 8th September 2025, the Appellant filed an application for stay of execution. The High Court issued an order staying execution on 9 th September 2025. The Respondent's advocates were served with both the application and the Order. The supporting affidavit to the application for a stay of execution exhibited the Notice and Memorandum of Appeal marked as "MMl", thereby placing the Respondent on notice of the intended appeal. 3.4 On 26th September 2025, the Respondent filed an affidavit in opposition to the stay of execution, together with a list of authorities and akeleton arguments. By the above action, the Re,spondent acknowledged receipt of the appeal documents attached to the application for stay of execution. 3.5 The deponent stated that the Appellant rema .. ns d · f "" estrous o prosecuting the appeal, as evidenced by the application for RS leave to regularise service. She maintained that the application for Leave will cure any procedural irregularity and will occasion no prejudice to the Respondent, as service can still be effected within the sixty-day window. 3.6 She reiterated her position that this Court has jurisdiction to grant leave to enable the Appellant comply with procedural requirements. Such leave would not prejudice the Respondent, whereas dismissal of the appeal at this stage would occasion serious prejudice to the Appellant. 4.0 RESPONDENT'S AFFIDAVIT IN REPLY 4.1 In reply, it was deposed that the Appellant had, to date, not filed an application for extension of time within which to serve the Notice and Memorandum of Appeal. That the Appellant only filed an application for leave to apply for an extension on 21st October 2025, after receiving the application to dismiss the appeal. 4 .2 In addressing the explanation regarding counsel's illness, it was asserted that the Appellant Advocates firm comprise of twenty-four advocates, including Mr. Munzele, Mr. Wishimanga and Ms. Nalondwa, Who had conduct of the matter from inception. There was continued activity by the Appellants in other respects and that no impossibility existed R6 which prevented service or th e filing of th e requisite application for extension of time. nd The deponent denied that the Respo ent's application is 4.3 premature and deposed that the Court lacks jurisdiction to entertain an application for extension where the appeal is incompetently before it for want of service. The application for stay of execution did not constitute service of the Notice and Memorandum of Appeal. 4.4 The Appellant only filed the application for leave to apply out of time after the Respondent had raised non-compliance, and while the application to dismiss the appeal remained pending. The Appellant concedes that service was not effected within the prescribed period. He maintained that the application for leave to serve out of time does not confer jurisdiction upon the Court. 5.0 RESPONDENT'S ARGUMENTS IN SUPPORT 5.1 The Respondent filed its arguments on 13th October, 2025. The essence of the arguments is that the Appellant filed a Notice and Memorandum of Appeal on 8th S . eptember 2025. The Appellant disregarded both its own appeal and the governing law, thereby compelling the R espondent to make an application for dismissal for want of . service. > R7 5.2 The Respondent referred to Order 5 Rule 1(6) CAR h' , ' w tch provides that service of Court of Appeal process shall be effected in the same manner as service of High Court process unless the Court orders otherwise. Reliance was also placed on Order 10 Rule 3(9), which mandates that a notice of appeal and memorandum of appeal must be lodged and served within fourteen days on all parties directly affected by the appeal. 5.3 Regarding the mandatory nature of service, the Respondent referred to the Supreme Court's decision in Chimanga Changa Limited v Chipango Ngombe'1 in which the Court ' held that parties must be served with court process to enable them to react, the rationale being founded on the common law principles of natural justice. Further reliance was placed on the decision of this Court in Capstone Management Company Limited v Musonda Chizhingac21, where the Court interpreted Order 10 Rule 3(9) as imposing an obligation to serve the notice and memorandum of appeal within fourteen days of filing. In that case, the appeal was dismissed for failure to comply with the rule when the appellant did not apply for an extension of time. The Respondent also cited the case of Mega Earth Movers v Rapid Global Freight ( 3J, where RB the Court held that serving documents out of time With out first applying for an extension rendered the appeal incompetent. 5.4 The Respondent additionally relied on the Supreme Court's decision in the case of Access Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture'4 in which ', the Court pointed out the importance of adherence to procedural rules and timelines. Further reliance was placed on our decision in the case of First Quantum Mining and Operations Limited v David Sendwe and Others'5 where ', the Court held that failure to comply with mandatory provisions regarding service may properly attract the sanction of dismissal for want of service. 5.5 According to the Respondent, the record demonstrates that the Appellant failed to serve the Notice and Memorandum of Appeal within the prescribed 14 days, and that no service had th been effected by the time e present application was filed. It was submitted that this omission constitutes noncompliance with mandatory procedural rules. Further, that the conduct of the Appellant by failing to serve the documents relating to the appeal and by not filing its own application for R9 extension of t · . . une shows a lack of 1n terest 1n pursuing the appeal. 5.6 In closing, it was submitted that the failure to effect service for over 35 days, coupled with the Appellant's inaction, justifies dismissal of the appeal for want of service with costs. 6.0 APPELLANT'S ARGUMENTS IN OPPOSITION 6.1 The Appellant's skeleton arguments were filed on 12th November, 2025. The appellant did not dispute that Order 5 Rule 1(6) and Order 10 Rule 3(9) CAR require service to be done in the same manner as the High Court and that service of the Notice and Memorandum of Appeal should be effected within fourteen days. 6.2 However, the Appellant contended that the Court of Appeal Rules also provide a remedial framework for defaulting appellants under Order 13 Rule 3(1), (2) and (3), which nd empowers the Court to exte time for taking any step in connection with an appeal where sufficient reason is shown, th even after the expiration of e prescribed period. The Appellant submitted that th e delay in serving the Respondent was neither deliberate nor intentional and that the reasons for the delay are fully set out in the Appellant's pending RlO application for 1 . f° r extension of time eave to file an application to effect service h' . . the court record. , W 1ch application 1s on 6.3 The Appellant argued that notwithstanding the expiry of ' both the fourteen da . d ~ rv1·ce and the subsequent - y peno 1or se , twenty-one-day period, under Order 13 Rule 3(2), the right to seek extension of time remains available. This right ought to be exercised where sufficient reason exists. The Appellant maintains that such reason has been provided in its application. 6.4 To support its contention that the Respondent's application is premature, the Appellant relied on the decision in Legal Resources Foundation Ltd v Norwegian Ministry of Foreign Affairsl6 where the Court held that an applicant ), may seek extension of time under Order 13 Rule 3(3) even after the lapse of earlier prescribed periods, provided · hown. sufficient reason 18 8 The Appellant further submitted that the authorities relied 6.5 the Respondent, particularly C upon by apatone paPY Llmitod v Muaoncla. Ch.a-h Man.agon,ent C O 111 · . ~ inga and , Jtapld Global hot 1. Mega Barth ,aove,. V . , l&1t (supra), in fact uant's position~ In those ca reinforce the Appe ses, the Court . t d out that where an appellant falls out of time, the po1n e R11 proper course is . to apply for extension of time under Order 13 Rule T · he Appellant submitted that, unlike the circumstances . . in those authorities, it has not proceeded to serve any appeal process out of time without leave and has instead sought th d · e requisite order before 01ng so. 6.6 The Appellant also made reference to the cases of Moses Vera v African Banking Corporation Limited'7 Prisca Lubungu ', v Obby Kapango & Othersl8J and Ndola City Council, and Zambia Revenue Authority v Jayesh Shah'9 which stress ', the Court's discretion to extend time for sufficient reason. It was the position of the Appellant that rules of Court should not be used as an avenue to prevent a party from being heard on the merits where justice would not be impaired. th 6.7 The Appellant submitted at in the case of Sipalo v Mundia,101, the Court held that where a discretion to enlarge time exists, it should be exercised where there is material justifying its application. ntended that grant· 6.8 The Appellant co ing 1e ave to extend time use prejudice to the would not ca ~,espondent, as the . be able to effect servi Appellant w1 ce and continue the al process within the prescribed sbrt appe . Y-day period. 1 dismissing the appeal at thi Converse Y, s stage w ld ou result .., R12 in grave pre,ud· · · h · · ice to the Appellant by ext1ngu1s 1ng its right J to be heard. 6.9 I was urged to dismiss the Respondent's application with costs. 7.0 AT THE HEARING f 7.1 At the hearing, the parties entirely relied on the documents on record. 8.0 DECISION 8.1 I have considered the application to dismiss appeal for want of service of the Notice and Memorandum of Appeal, as well as affidavits and arguments filed by the parties. The Respondent seeks an Order to dismiss the appeal for want of service. The application is premised on the failure by the th Appellant to serve e Notice and Memorandum of Appeal within the prescribed period. 8.2 It is not in dispute that the Appellant filed its Notice of Appeal and Memorandum of Appeal on September, 2025. On 13th 8th r 2s, the Respondent filed surn 0 c t O b e ' 20 rnons for dismissal f the Appeal for want of service. The A PPellant filed a for extension of time Withi summons n Which t o serve the al and Memorandum f Notice of Appe O Appeal on 21st Octob . h - yet to be heard. er, 2025 W h lC 15 R13 a.3 I have carefully d considered the arguments a vancect tn support of the . application for dismissal and the opposing arguments I W'll · 1 begin by pointing out that Order 10 Rule 3(9) is clear as t h f · · h' o t e mandatory nature o service wit 1n the stipulated timefram e. 8.4 I have also considered the plethora of authorities cited by the Respondent in support of its application. I have also considered our strict stance on service of the record of appeal without an Order extending the time within which to do so in our recent decision in Nigel George Seabrook, Turner Construction Limited v Cathrine Hovstad Van Aardl11 J 8.5 The Respondent primarily argues that, according to the Court of Appeal Rules, service witbin the prescribed timeframe is mandatory. That failure to comply with mandatory provisions regarding service may properly attract the sanction of . . al fi want of service. dismiss or · Jiance with mandatory . . The law on cornP .- provisions is common 8.6 have settled this position in se al .. cause. W e ver dec1s1ons, Nfgel ac,or1e Seabrook c including tbe · ase (supra). Coming nt case, the Appellant filed 't to the prese 1 s Appeal on 8th 2025. There is no dispute September . . that the 14-day . d within which to sen, 'b d per10 e the N . prescr1 e 0tice of Appeal R14 and Memoranct d h Urn of Appeal lapsed. Premise on t e above o the Respond t . 13th en launched this application on ctober, 2025. The Appellant filed its application for leave to apply for an extension of time on 21st October, 2022. 8.7 In Nigel George Seabrook we were faced with a different set of facts from the present case. In that case, the issue was the filing the Record of Appeal and Head of Argument outside the f prescribed time. Further in that case service was effected ' without leave to extend the time within which to serve out of time in accordance with Order 13 ule 3. 8.8 At page R25 of our ruling, we emphasised that: Service, effected outside of the mandatory Rules of Court, ° rd without seeking an er of extension from the Court in accordance with Order XIII Rule 3 of CAR, will not be condoned under th e guise of judicial discretion and the apparent lack of prejudice to the Respondent. 8. 9 In the present case, the Appellant has not yet effected service . f Appeal and memoranct of the Notice O um of Appeal but has .c ation for extension of time t filed an app 1 0 serve. In my view, k case is distinguishable fr the Seabroo om the present case. b ook and the authorities refi In Nigel Sea r erred to in th t . a case ffected out of time Without I ' service was e eave Wh . , ereas in the although the Appellant is present case, out of time th ' ey have RlS not effected service and have filed an application for extension of time, which is still pending. 8.10 I take the position that the appeal should not be curtailed at this point as the Appellant has exercised the avenue to apply for an extension of time. I am fortified in Order 13 Rule 3(3) which provides thus: (3) The court may for sufficient reason extend time for making an application, including an application for leave to appeal, or for bringing an appeal, or for taking any step in or in connection with any appeal, despite the time limited having expired, and whether the time limited for that purpose was so limited by the order of the court, by these Rules, or by any written law.(emphasis added) 8.11 This provision allows for the extension of time even when the stipulated timeframe has expired. The primary consideration th in such an application is at sufficient reasons must be given. As the application has not yet been heard, I cannot address my mind to the reasons for the ~ ·1 ure to service . iai within the 14 day period in the present application. 8 12 I also hold the view that dismissal of an · appeal that has not been heard on the merits should be done s . · . Paringly and only in deserving cases. In my view, this is not . such a case as there is still a remedy avrulable to the Ap I Pe lant which they R16 have exercised. I am fortified by the Supreme Court's decision in Sangwa and Simeza, Sangwa & Associates v Hotellier Limited and Ody's Work Limited 1121 w herein the Supreme Court set aside the dismissal of an appeal having found that the appellant was not guilty of unreasonable delay, malafide or improper conduct. There is nothing that has been demonstrated that there was malafide or improper conduct r by the appellant in this matter. I therefore find no merit in the Respondent's application and decline to grant the order of dismissal of appeal sought. 9.0 CONCLUSION g. 1 The application to dismiss appeal for want of service 1s dismissed. I order that each party bears its own costs. Dated the day of December 2025 4th Mrs. Justice F. M Chi' h' Hon · · s trnba coVRT OF APPEAL JUDGE