Great Wall Financial Services Limited v Patrick Ilunga (CAZ/08/272/2024) (4 December 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/272/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: GREAT WALL FINANCIAL SERVICES LIMITED APPELLANT AND PATRICK ILUNGA RESPONDENT BEFORE THE HON. LADY JUSTICE P. C. M. NGULUBE IN CHAMBERS For the Appellant : Mr. G. Haakainsi, Messrs. L. M. Chambers For the Respondent: Mrs. L. K. Mbaluku, Messrs. L. K. Mbaluku & Co. RULING Cases referred to: 1. Ram Auerbach vs Alex Kafwata -SCZ Appeal No. 65 of 2000 2. Capstone Management Co. Limited vs Musonda Chizinga - CAZ/ 08/ 332/ 2023 3. Sydney Silo vs Mary Bwalya Banda -SP No. 42 of 2024 4. Falcon Press Limited & Others vs Kangwa & Others - SCZ No. 308 of 2012 5. Birkett vs James [1977) UKHL J0525-1 6. Nigel George Seabrook & Another vs Cathrine Hovstad Van Aardt -Consolidated Appeal No. 220 of 2024 Legislation referred to: 1. The Court of Appeal Rules, Statutory Instrument Number 65 of 2016 1.0 INTRODUCTION 1.1 This is a ruling on the respondent's application to dismiss the appeal for irregularity and for want of prosecution. It is made pursuant to Order X Rules 3(9), 6, 9(8)(9) and 7 of the Court of Appeal Rules.1 1.2 The application was accompanied by an affidavit deposed to by Loveness Kolala, Counsel seized with conduct of the matter on behalf of the respondent. She deposed that the lower Court delivered a Judgment dated 6th May, 2024. The appellant lodged its appeal on 4th June 2024 which was served on the respondent on 26th August, 2024, outside the mandatory 14 days without leave of Court. 1.3 It was averred that the appeal is incompetent for late service as the notice of appeal and memorandum of appeal were served 60 days from the date of filing. -R2- 1.4 It was averred further that the appellant obtained leave to file the record of appeal out of time but the same was not filed within the extended time. That the record of appeal ought to have been filed by 17th April, 2025 but was filed on 22nd April 2025, outside the extended 30 days. Further, that no leave was obtained to extend the period of 30 days. 1.5 She deposed that the appellant was mandated to serve the record of appeal within 14 days of filing but only served it on 30th May 2025, which was 38 days later. That the record of appeal was served outside the mandatory period without leave of Court. That further, the respondent has been prejudiced by the appellant's action as the appellant is still benefiting from the stay of execution. 1.6 In the Skeleton Arguments in support of the application, Counsel for the respondent submitted that the appellant's failure to get leave of Court before serving the notice and memorandum of appeal out of time has made the appeal defective. For this proposition, Counsel relied on the case of Ram Auerbach vs Alex Kafwata1 where the Supreme Court held that taking a step which -R3- requires leave of the Court but omitting to get leave results in the process being a nullity. 1. 7 Counsel also relied on the cases of Capstone Management Co. Limited vs Musonda Chizinga2 and Sydney Silo vs Mary Bwalya Banda3 where the Court of Appeal of Zambia dismissed an appeal for failure to serve the notice of appeal and memorandum of appeal within the mandatory 14 days. 1.8 It was argued that the delay in serving the notice of appeal and record of appeal was inordinate. Counsel cited the case of Falcon Press Limited & Others vs Kangwa & Others,4 where the Supreme Court emphasized the consequences of failure to adhere to procedural timelines in the appeal process which can result in the dismissal of an appeal. 1. 9 The appellant filed an affidavit in opposition deposed to by Gerald Haakainsi, Counsel seized with conduct of the matter on behalf of the appellant. He deposed that the record of appeal and heads of arguments were filed within the extended time since the appellant was granted time to file the documents within 30 days from 17th March 2025, which were filed on 22nd April, 2025. That the 30th day was falling on a holiday so the record of appeal was filed on -R4- the next day. That therefore, there was no need for leave because the appeal is not irregular since the record of appeal was filed within time. 1.10 He also averred that the late service of the documents was not fatal but curable and the documents have since been served on the respondent. That it is in the interest of justice for the appeal to be heard on its merits rather than be dismissed on procedural technicalities. 1.11 In the Skeleton Arguments in support of the affidavit 1n opposition, Counsel for the appellant submitted that 1n determining this application, the Court needs to be satisfied that the default was not intentional and the delay was not inordinate. That further, the Court needs to consider the nature of the delay and the extent to which the defendant has been prejudiced. To buttress this argument, Counsel relied on the English case of Birkett vs James5 and the learned authors of Halsbury's Laws of England Volume 37 4th Edition. 1.12 In the affidavit in reply, Counsel for the respondent deposed that even though the appellant filed the record of appeal after the Easter holiday, the appeal is still irregular because the notice of -R5- appeal and memorandum of appeal were served after 60 days, which was inordinate delay. Further that 38 days delay in filing the record of appeal was also inordinate. That the appeal is still defective because no leave was sought to file the documents out of time. 1.13 The respondent's Counsel filed Skeleton Arguments in support of the affidavit in reply which present the same arguments as those previously filed. In the interest of judicial efficiency and to avoid unnecessary repetition, I will not reiterate them here. 2.0 DECISION 2.1 I have considered the parties' affidavits and arguments in support and in opposition to the application. The issue that I need to determine is whether the appeal should be dismissed for the appellant's failure to comply with procedural timelines. 2.2 Order X Rule 3(9) of the Court of Appeal Rules mandates that a notice of appeal and memorandum of appeal shall be lodged and served within a period of 14 days. Furthermore, Rule 9(8)(9) stipulates that the record of appeal and heads of arguments must also be served within 14 days. -R6- 2.3 It is not in dispute that the lower Court delivered its decision on 6th May 2024, and the appellant lodged its appeal on 4th June 2024, which was served on the respondent on 26th August, 2024 beyond the mandatory 14 days period, without leave of Court. The appeal is challenged as incompetent due to late service of the notice of appeal and the memorandum of appeal on one hand and the record of appeal and heads of arguments on the other. 2.4 The respondent asserted that the appellant received leave to file the record of appeal outside of time but failed to submit it within the required timeframe. The record of appeal, which was due on 16th April 2025, was not filed until 22nd April 2025, exceeding the 30 days period. Moreover, the record of appeal was served on 30th May 2025, beyond the required timeline. 2.5 The respondent's Counsel referenced the applicable rules regarding timely filing and stated that the absence of timely service of the notice of appeal and memorandum of appeal is a critical issue. 2.6 In opposition, the appellant's Counsel contended that the record of appeal and heads of arguments were filed within the -R7- allowable timeframe, arguing that since the 30 days deadline fell on a holiday, the documents were filed on the next available day. 2.7 Upon reviewing the timeline, I note that the appellant was given 30 days to file the record of appeal from 17th March 2025, which means the deadline expired on 16th April, 2025. I take judicial notice that the first Easter holiday, Good Friday, fell on 18th April, 2025. Therefore, the relevant deadline had passed prior to the commencement of the Easter holidays. Consequently, the holiday is not a valid reason for any purported delay in filing the record of appeal. 2 .8 In case of Nigel George Seabrook & Another vs Cathrine Hovstad Van Aardt,6 the Court appeal of Zambia dismissed an appeal for being incompetent due to failure to serve the record of appeal and heads of arguments within the stipulated 14 days and for failure to obtain leave to serve out of time. The Court clarified its position on the various positions ta.ken on this subject and clarified that the provisions of Order X Rule 9(9) are mandatory and not regulatory. -R8- 2.9 Despite the appellant's claims regarding the timing of the holiday, the failure to serve the notice and memorandum of appeal within the period of 14 days as prescribed by Order X Rule 3(9) and the record of appeal within 14 days period stipulated in Rule 9(9) remains critical. Procedural compliance cannot be overlooked, and the delays cited by the appellant does not absolve it of the necessity to adhere to these rules. Having run out of time within which to serve, the appellant ought to have made an application for leave to serve out of time. Having failed to do so renders the appeal defective. 2.10 In view of the foregoing, the respondent's application has merit. The appeal is dismissed for being incompetent. 2.11 Costs to the respondents. Dated this 4th day of December, 2025. HONOURABLE MRS a'USTICE P.C.M. NGULUBE COURT OF APPEAL JUDGE -R9-