Access Bank Zambia Limited v Ernest Jay Chisanga (Trading as SADIC Import and Exports) (Appeal No. 006 of 2025) (24 September 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 006 of 2025 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: AND ERNEST JAY CHISANGA RESPONDENT (Trading as SADIC Imports and Exports) CORAM: SIAVWAPA JP, CHISHIMBA & PATEL, JJA 16th & 24th September 2025 For the Appellant: Mr. K. Banda of Messrs. AMW & Co with Ms. M. llunga- In House Counsel For the Respondent: Mr. M. C. Zulu y Messrs. Malambo & Company JUDGMENT Patel, JA, delivered the Judgment of the Court. J1 Cases referred to: 1. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 2. Road Development Agency v Stefanutti Stocks and Consolidated Contractors Company Joint Venture -CAZ Appeal No. 31 of 2024 and 3. Alick Tembo and 21 others v Kwacha Pension Trust Fund and Bank of Zambia -CAZ Appeal No. 108 of 2024 4. William Carlisle Wise v EF Hervey Limited (1985} ZR, 179 5. Nyambe v Bank of Zambia (Appeal 207 of 2012) [2016] ZMSC 13 (3 February 2016} 6. Inda Zambia Bank Limited v Christine Banda -SCZ Appeal No. 178 of 2014 7. Maila Rodger Chilele v Patson Mbao & Mweene Habatwa Vincent- CAZ- Appeal No. 88 of 2021 8. African Banking Corporation Zambia v Mubende Country Lodge- SCZ Appeal No. 116 of 2016 9. Kalenga and Another v Sadhu and Others -CAZ Appeal No. 152 of 2018 10. Heaven v Road and Rail Wagon Limited [1965] 2 All E.R. 409 11. Daniel Mwale (Male} v Njolomole Mtonga (sued as Administrator of the estate of the late Gabrial Siwonamutenje Kapuma Mtonga) and the Attorney General -SCZ Judgment No. 25 of 2015 12. Mwanza v Akombwa and Ors -SCZ- Appeal 154 of 2015; [2018] ZMSC 60 13. Absa Bank Zambia PLC v T and L Limited and Others (Appeal No. 131 of 2014} ZMCA 14. Chama Chelemu & two others v Odile Loukomobo 'Chelemu' -SCZ Appeal No. 294 of 15. R.B. Policies At Lloyd's v Butler [1949] 2 All ER 229, 230 J2 Legislation & Rules referred to: 1. The Rules of the Supreme Court of England 1965, 1999 Edition -The White Book ("RSC"). 2. The limitation of Actions Act 1939 3. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016 Other works referred to: 1. Halsbury's Laws of England, 3rd Edition, Volume 24, London, Butterworth (1958) 2. Black's Law Dictionary, Eighth Edition, Bryan A. Garner 1.0 INTRODUCTION 1.1 This is an appeal against the Ruling of E.P. Mwikisa J, on the Appellant's application to raise a preliminary issue on a point of law pursuant to Order 14A of the Rules of the Supreme Court of England 1 ("RSC"). 1.2 The appeal, interrogates, the troubling issue of limitation of action and the accrual of the cause of action. This Judgment will discuss and analyze the application of the statute of limitations to the Respondent's claim, emphasizing the importance of finality in legal disputes and the need for litigants to act with reasonable diligence. 1.3 Reference to page numbers shall refer to the Record of Appeal unless otherwise stated. J3 2.0 BACKGROUND 2.1 For this section, the Parties shall be referred to as they appear in this Court. 2.2 The Respondent (Plaintiff below) commenced an action against the Appellant (Defendant below) in the High Court on 8th December 2022 by way of Writ of Summons and Statement of Claim seeking the following reliefs: i. An order and declaration that the purported debit to the Plaintiff's account of Kl, 449, 300.00 between 7th July 2011 and 8th June 2012, was without authority and of no effect; 11. An Order for restitution of funds unlawfully removed from the Plaintiff's said account with all consequential gains in profit; iii. An Order that the Plaintiff's said business account be re-opened and credited with the funds to be found due; iv. Interest at the contractual rate applicable to the said account; v. Further or alternatively, interest computed pursuant to Section 2 of the Judgments Act, Chapter 81 of the Laws of Zambia; v,. Any further or other relief the Court may deem fit. v11. Costs of and incidental to the suit. 2.3 According to the Statement of Claim, the Respondent was a customer of the Appellant and maintained an account number 0030011128831 since 2011. Sometime in 2013, the Respondent's bank account was seized by the Drug Enforcement Commission ("DEC"). According to the Respondent, the Appellant directed him to stop visiting its premises and to wait until the seizure was lifted. J4 2.4 It was following the assistance of his Advocates that the Respondent states that he was able to obtain statements of accounts from the Appellant and became aware, that between 7th July 2011 and 8th June 2012, the Appellant unlawfully withdrew funds in the sum of Kl, 449, 300.00 and that as a result, he suffered loss and damage. 2.5 On 28th December 2022, the Appellant filed a Memorandum of Appearance and Defence, in which it denied the allegations set out in the Respondent's claim. The Appellant pleaded that the Respondent had access to the account between 2011 and 2013 and was fully aware of all cash withdrawals made between 7th July 2011 and 8th July 2012. Accordingly, the Appellant contended that the Respondent is not entitled to any of the reliefs sought. The Appellant further pleaded that the matter is statute-barred, as the alleged cause of action did not arise within six years prior to the commencement of the action. 2.6 On 12th May 2023, the Appellant filed a Notice of Motion to Dismiss the matter on a preliminary point of law pursuant to Order 14A of the Rules of the Supreme Court of England1 on grounds that the matter was statute barred as over 6 years had elapsed since the Respondent's cause of action accrued. {Hereinafter referred to as the Order 14A application.) 2.7 On 4th August 2023, the Respondent filed his Affidavit and Skeleton Arguments in Opposition to the Order 14A application. In his arguments in opposition, the Respondent argued that the matter is not statute barred by virtue of section 26 (b) of the Limitations Act 19391, as the Appellant acted in a fraudulent manner in the way it handled the Respondent's account. It was further contended that the Respondent only became aware of the said withdrawals JS on 17th September 2021. Accordingly, the cause of action accrued on that date, when the Appellant issued its response to the Respondent's demands of 7th and 15th September 2021. 2.8 On 13th February 2024, the Appellant filed its Affidavit and Skeleton Arguments in Reply in which it argued that there was no fraudulent concealment as the Respondent had complete access to his Bank Account and information relating to the withdrawals between 7th July 2011 and 8th June 2012 and that all other cash withdrawals were available to him at all material times. 2.9 The High Court dismissed the Appellant's Order 14A application by way of its Ruling dated 10th October 2024, which is now the subject of this appeal. 3.0 DECISION OF THE LOWER COURT 3.1 The learned Judge considered the application before her and noted that the only question raised in the application was whether or not the Respondent's cause of action against the Appellant, was statute barred, as over 6 years had lapsed since the Respondent's cause of action accrued. 3.2 The learned Judge was of the view that the Respondent's claims arose from the fact that funds were debited from his account without his authority and hence fraudulently. She noted that an analysis of the Parties' pleadings showed that the Respondent stated that he was only made aware of the alleged unlawful transactions on his account in 2021. It was further noted that the Appellant, on the other hand, stated that the Respondent was aware of the transactions at all material times. J6 3.3 The learned Judge was of the view that the Appellant did not exhibit any evidence to prove its claims. It was her view, that the Respondent, in opposing the application, went a step further to substantiate his arguments such as correspondence between the Parties through his advocates. 3.4 The learned Judge noted that from the correspondence, the Respondent did not receive his statement of account until 17th September 2021, when the same was attached to the letter addressed to the Respondent's advocates. 3.5 The learned Judge arrived at the finding that the Respondent was only made aware of the transactions on 17th September 2021, and that the Respondent's right to institute the action and hence the cause of action arose at that point. 3.6 The learned Judge was of the view that the Respondent was within the time frame stipulated in the statute of limitation when he commenced his action, as it fell within the exceptions to the rule set out in section 26 (b) of the Limitations Act 19392 , where there is fraud or evidence of it. 3.7 The learned Judge accordingly dismissed the Appellant's Order 14A application with costs to the Respondent. 4.0 THE APPEAL 4.1 Dissatisfied with the Ruling, the Appellant appealed to this Court, advancing four (4) grounds as follows; The Court below erred in law and in fact when it held that the conduct of 1. the Appellant was fraudulent contrary to the law and the evidence on the record. J7 ii. The Court below erred in law and in fact when it entertained bare a/legations of fraud that were not pleaded nor particularized contrary to the law and the evidence on the record. iii. The Court below erred in law and in fact when it held that the cause of action accrued in September 2021 contrary to the law and the evidence on the record. iv. The Court below erred in law and in fact when it did not consider the Appellant's Affidavit in Reply contrary to the law and the evidence on the record. 5.0 APPELLANT'S HEADS OF ARGUMENT 5.1 We have duly considered and appreciated the Appellant's Heads of Argument filed on 7th January 2025. The Appellant argued grounds 1 and 2 together while grounds 3 and 4 were argued separately. 5.2 In arguing grounds 1 and 2, it is the Appellant's contention that its' employees did not behave in an unconscionable manner nor was there any evidence that, the Respondent made any inquiries or demands relating to his Account between 2011 and 2013. 5.3 The Appellant further argued that upon receiving a request in writing, its' employees responded on 17th September 2021, and availed the Respondent with the statements he requested. It was further argued that there was no fraudulent concealment and that the Appellant simply followed the instructions from DEC to seize the Respondent's account, a fact communicated to and not concealed from the Respondent. J8 5.4 It is the Appellant's submission that the Respondent did not discharge the burden of proof as the Respondent's allegation of fraud are unsubstantiated and that the Respondent did not plead or particularise the allegations of fraud nor did the Respondent demonstrate what conduct of the Appellant was unconscionable. Reliance was placed on the decision of the Supreme Court in the case of Wilson Masauso Zulu v Avondale Housing Project Limited.1 5.5 In arguing ground 3, it is the Appellant's argument that the Respondent could have accessed his account and discovered the said withdrawals between 2011 and 2012 but failed and neglected to do so. 5.6 The Appellant argued that the lower Court erred in law and fact when it failed to take into account the shift in the evidential burden. It was incumbent upon the Respondent to prove that he had requested for his statements during the stipulated period. There was simply no proof of any effort on his part. 5.7 In arguing ground 4, the Appellant argued that the Respondent's Affidavit and Arguments in Opposition to the Appellant's Order 14A application, raised new allegations of fraudulent concealment, which were not raised in the Respondent's pleadings at all. 5.8 It was also submitted that the lower Court omitted to address its mind to the Appellant's Affidavit in Reply seen at pages 95-105 of the Record and argued that this was contrary to the principles of law and natural justice. J9 6.0 THE RESPONDENT'S HEADS OF ARGUMENT 6.1 We have equally considered and appreciated the Respondent's Heads of Argument filed on 14th February 2025 as well as his Supplementary Record of Appeal filed on 17th February 2025 which contains a copy of his Supplemental Skeleton Arguments dated 7th March 2024 filed before the lower Court. We shall speak to these later in our Judgment. 6.2 In response to grounds 1 and 2, it is the Respondent's submission that there was no requirement to plead fraud and particularize the same as the Respondent's action in the Court below was not founded on allegation of fraud on the part of the Appellant, instead it was founded on breach of contract on the part of the Appellant. 6.3 It is the Respondent's argument that the Appellant was in breach of its contractual relationship giving rise to his commencement of action in the lower Court. It is his submission that he was claiming damages for breach of contract and not damages for fraud. 6.4 It is the Respondent's argument that his argument of fraud came about only as a result of the Appellant's Motion to Dismiss the Matter on a point of law and that the Respondent's Affidavit in Opposition narrated particulars of the concealed fraud. Reliance was placed on the authors of Halsbury's Laws of England, 3rd Edition, Volume 24 1 under Section 5 headed "PLEADING", paragraph 378 which reads as follows: 11378. Fraud. Where concealed fraud or mistake is relied upon as postponing the limitation period it must be sufficiently alleged in the pleading to bring the case within the appropriate statutory provision (t).11 J10 6.5 The Respondent placed further reliance on footnote (t) in which the learned authors go on to explain the import of Paragraph 378 as follows: "(t) i.e. the Limitation Act, 1939 (2 & 3 Geo. 6c. 21}, s.26: see p.317, post. It would seem that where only the remedy would have been barred the plea of concealed fraud or mistake not discovered may be alleged in either the statement of claim or reply; but where the title is barred as well as the remedy it is part of the cause of action to be alleged in the statement of claim: ... " 6.6 In response to ground 3, it is the Respondent's submission that the finding by the Court below that the cause of action accrued in September 2021, was one of fact and placed reliance on the legal principle as stated in the cited case of Wilson Masauso Zulu v Avondale Housing Project Limited. 6.7 It was submitted thatthe Respondent visited the Bank between 2011 and 2012 and was informed by the Appellant's Branch Manager that he could not have access to his account because the same had been seized by the DEC. 6.8 It was further argued that the Respondent could only have discovered that payment out of his account after having access to the bank statement and that he was in prison from 2019 to 2021 and could not have been expected to visit the Appellant or even write to them. 6.9 In response to the Appellant's submission that the Respondent raised new arguments, the Respondent counters that the Affidavit in Reply dated 13th February 2024 is inadmissible for being hearsay. 6.10 In response to ground 4, the Respondent reiterated that the Appellant's Affidavit in Reply was inadmissible as hearsay. Jll 7.0 THE HEARING 7.1 At the hearing, Counsel Banda attempted to raise what he termed as a "jurisdictional issue11 in his effort to object to the Respondent having filed its Heads of Argument, outside the time period and without leave of Court, as provided by the Rules of the Court. 7.2 Although we heard the attempted objection and dismissed it, we are compelled to offer guidance, yet again, to litigants who intend to raise a preliminary objection. Order XIII rule 5 of the Court of Appeal Rules3 {CAR) is instructive. Subrule (2) provides as follows: 11An Appellant who intends to make any preliminary objection in relation to an appeal shall give notice of such preliminary objection in relation to the Court and to the other parties to the appeal, within fourteen days from the date of the receipt of the heads of argument or supplementary record of appeal if any. 11 (emphasis added). 7.3 The rationale and reasoning for this is clear. The Rules of Court, in as much as they are meant to inculcate discipline and adherence, must not also be used as a minefield to ambush, or spring surprises on the opposing party in an adversarial system such as ours. To compound to his ill-fated attempt at raising a preliminary objection in this manner, Counsel Banda placed reliance on an Affidavit of service which clearly showed by the exhibit marked 'GNM2,' that the Firm of AMW & Co Legal Practitioners, were served with the Respondent's Heads of Argument on 5th March 2025, defeating his argument that the defect in service was only noted on 12th September 2025. J12 7.4 We draw the attention of litigants to Judgments rendered by the Court which speak to the form and manner of raising objections and not to flag every transgression as a 'jurisdictional issue'. Our Judgments in the cases of Road Development Agency v Stefanutti Stocks and Consolidated Contractors Company Joint Venture2 (paragraph 8.24} and Alick Tembo and 21 others v Kwacha Pension Trust Fund and Bank of Zambia3 (paragraph 10.6} both speak to this and need no further elaboration. 7.5 What we did question is the propriety of the Respondent's Supplementary Record of Appeal, exhibiting its supplementary skeleton arguments filed before the lower Court. We did not see where the lower Court allowed these to be filed. However, this issue not having been raised in the manner provided, and so as not to wander down the rabbit hole, we shall leave it here. 7.6 Ultimately, and as provided by Order XIII rule 5 (3) of the CAR3 , we refused to entertain the objection. 8.0 ANALYSIS AND DECISION 8.1 We have anxiously considered the assailed Ruling, the arguments and the Record before us. No matter how the grounds of appeal are packaged, the cardinal issue before us is the date of accrual of the cause of action. Simply put, was it statute barred or can the Respondent successfully claim the exemption under section 26{b) of the Statute of Limitations Act2 This is the . essence of ground 3. Grounds 1 and 2 challenge the finding of fraud by the lower Court when it was neither pleaded nor particularised, contrary to settled jurisprudence and authorities in the jurisdiction. J13 8.2 In addressing our mind to the issue of fraud as canvassed by grounds 1 and 2, and eventually leading to the determination of the date of the accrual of the cause of action, the following facts are not disputed: 1. there was in existence a contract arising out of banker and customer between the Appellant and Respondent; ii. the Respondent maintained a business account number 0030011128831 at the Appellant Bank since 2011; iii. alleged withdrawals from the Respondent's bank account took place between 7th July 2011 and 8th June 2012; iv. the Writ of Summons was issued on 8th December 2022; v. fraud was not pleaded in the Statement of Claim or Reply. 8.3 Black's Law Dictionary2 defines a cause of action as follows: "A group of operative facts giving rise to one or more basis for suing; a factual situation that entitled one person to obtain a remedy in court from another person." 8.4 The well cited case of William Carlisle Wise v EF Hervey Limited,4 defined a cause of action as follows: "A cause of action is disclosed only when a factual situation is alleged which contains facts upon which a party can attach liability to the other or upon which he can establish a right or entitlement to a Judgment in his favour against the other." J14 8.5 The starting point of our scrutiny is Section 2 (1) (a) of the Limitation Act which stipulates as follows: "Limitations of actions of contract and tort and certain other actions. {1} The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:- (a) Action founded on simple contract or on tort." 8.6 Critical to the determination of the issue on dispute, is Section 26 of the Limitation Act2 , and whether this case fits within the ambit of it. In support of the appeal, the Appellant submitted that the Respondent sat on his rights and could have accessed his bank account earlier than September 2021 and would have discovered the aforementioned withdrawals. 8. 7 Section 26 of the Limitation Act 2 states as follows: "Where in the case of any action for which a period of limitation is prescribed by this Act, eithera) The action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent, or; b} The right of action is concealed by the fraud of any such person as aforesaid; or c) The action is for relief from the consequences of a mistake; The period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it." (Emphasis ours) JlS 8.8 In response, the Respondent argues that he visited the bank between 2011 and 2012, and he was informed by the Appellant's Branch Manager that he could not have access to his account because the same had been seized by the Drug Enforcement Commission. We have considered the Respondent's argument that he did exercise due diligence but was constantly turned down by the Appellant. The Respondent maintains his argument that fraudulent concealment on the part of the Appellant is clearly alluded and the Court should not overlook the fraudulent manner in which the Appellant handled the Respondent's bank account. 8.9 It is the Respondent's submission that having only discovered the transactions that gave rise to this action in September 2021, he has relied on Section 26(b) of the Limitation Act 2 to support his contention that the period of limitation in this case did not start running until he discovered the alleged fraud in 2021. 8.10 We refer to the case of Prisca Matimba Nyambe v Bank of Zambia 5 and pose the same question that the Supreme Court asked at page J21, namely, did the Respondent commence the action within the period prescribed by the Limitation Act? 8.11 What is apparent to us is that between 7th July 2011 and 8th June 2012, there were withdrawals from the Respondent's bank account amounting to One Million Four Hundred and Forty-Nine Thousand Three Hundred Kwacha (Kl, 449,300.00). We note that Section 26 2 essentially operates to restart or reset the clock for the limitation period, but in order to rely on this provision, it also requires the Respondent to demonstrate that he could not, with reasonable diligence, have discovered the alleged fraud on the part of the Appellant. J16 8.12 We refer to the case of lndo Zambia Bank Limited v Christine Banda6 in which the Supreme Court held that: "Section 26 of the Limitation Act, 1939 anchored on mistake afforded the Respondent another window which had served to postpone the limitation period." 8.13 Did the same window of opportunity exist in casu? Having perused the Record, there is simply no evidence to substantiate the many claims of the Respondent. We have noted that 8 years later, the Respondent wrote a letter to the Appellant, dated 7th September 2021, demanding access to his account to which he received an immediate response dated 17th September 2021 seen at page 79 of the Record. The Respondent has not shown why he was not able to send a letter earlier and within the period allowed by the law. 8.14 The Respondent also placed premium on a decision of the Court rendered in the case of Maita Rodger Chilele and Another v Patsonn Mbao & Mweene Habatwa Vincent,7 to canvass the position that where Parties cannot agree on the date of the accrual of the cause of action, the issue should be determined at the end of the trial. We have visited the said decision and are of the considered view that it can be distinguished from the facts in casu. 8.15 In the Chilele Judgment, we upheld the decision of the lower Court to dismiss the Order 14 A application, (similarly mounted on the issue that the claim was statute barred), as the mover of the Order 14 A application had not filed its defence as per the requirement settled by the Supreme Court by its decision in the case of African Banking Corporation Zambia v Mubende Country Lodge7 The Order 14A application was dismissed as being incompetent. . J17 8.16 In the Chilele judgment, we stated at page J18 the following: "It is clear that the parties are not agreed on the date the right of action accrued, making it a triable issue that needs further interrogation. There is need for evidence to be adduced to prove the date of accrual before concluding that the matter is statue barred. We are of the view that such issues cannot be disposed of under Order 2/2 RSC." 8.17 To use the above holding to canvass the argument that a Court may not consider an Order 14 A application, simply because Parties disagree on the date of the accrual of the cause of action, is an argument misplaced and plucked out of context. 8.18 In critically analyzing the Arguments, we have noted that the Respondent has conceded in its Heads of Argument that its action against the Appellant was based on contract and not fraud. See paragraph 6.2 and 6.3 above. Reliance on the authorities as canvassed at paragraph 6.4 and 6.5 above, simply confirms that for a Party to postpone the limitation period and fall on section 26 (b) of the Limitations Act, fraud or mistake must be sufficiently pleaded. To this extent, the lower Court misdirected itself when it made findings based on fraud on the part of the Appellant. We have no hesitation in setting that aside. 8.19 In light of the above, we ask ourselves why the Respondent did not take proactive steps during the period 2013 to 2021 to access his statements and bank account. it is canvassed that the Respondent accounts for his apparent inactivity in 2013 to 2021 for reasons that he was consumed by his defense for liberty in the criminal prosecution against him. We are of the considered view that such excuses do not operate to defer the accrual of the cause of action. J18 8.20 In a recent decision of the Court, rendered in the case of Kalenga and Another v Sadhu and Others9 on page J28, we referred to the diligence of the Plaintiff's , inquiry and stated as follows: "The diligence of the plaintiff's inquiry into the existence of a claim is judged according to an objective reasonable person standard. No allowance is made for any trust the plaintiff may have had in the honesty of the defendant's behaviour or representation. The defendant is under no duty to disclose her wrongdoing. Her silence will not stop the clock from running on an injured party's cause of action. Indeed, the defendant's denial of wrongdoing does not constitute fraudulent concealment and will not serve to toll the statute of limitations. 11 8.21 It is apparent that the Respondent slept on his rights having only commenced his action almost 10 years after the first alleged fraudulent withdrawal from his account. The Respondent had every opportunity and means to question the transactions on his account. With respect to the justification of the limitation period, we refer to the case of Heaven v Road and Rail Wagon limited10 in which the Court stated as follows: ". .. The reasons of public policy are not far to seek. It is unfair to defendants and it makes the administration of justice more uncertain if litigation is delayed so that witnesses die or cannot be traced; or memories fade and defendants are entitled to know definitely, at the expiry of some defined time, whether or not they are to be pursued in the court. .. 11 J19 8.22 We are fortified in arriving at the finding on when the cause of action accrued and refer to a Judgment of the Supreme Court which was also faced with the determinative issue of when a cause of action is deemed to have accrued. In the case of Daniel Mwale (Male) v Njolomole Mtonga (sued as Administrator of the estate of the late Gabrial Siwonamutenje Kapuma Mtonga) and the Attorney General11 the Supreme Court, held that time for prescription begins to run when there is a person who can sue and another who can be sued and when all facts which are material to be proved to entitle the Plaintiff succeed. In that case, the Supreme Court noted that time began to run at the moment the certificate of title was issued. It further noted that the appellant (in that decision), need not have waited for the Chief Registrar of Lands to reject a request to rectify the certificate of title. 8.23 We refer to another decision of the Supreme Court rendered in the case of Mwanza v Akombwa and Ors12 This decision, delivered in the context of . medical negligence, addressed when the period for limitation of the action started running; whether or not there were subsequent causes of action; whether or not there was concealment; and, whether or not there was a break in the limitation period. In this case, the Court was of the considered view, that time did not start from the date of the operation (the negligent act), but from the date when the Plaintiff became aware of the damage caused. It took the view that negligence alone does not create a cause of action, actual damage must be known. In the Mwanza case, the appellant became aware of the full extent of the damage by 4th August 2010, when he wrote to the hospital after receiving a medical report. The appellant claimed the respondents concealed the extent of his injuries, which should suspend time under section 26(b) of J20 the Limitation Act 1939. However, the Court rejected this, and found that by August 2010, he already knew the nature and cause of his injury, and that consequently, there was no concealment. On that reasoning, the Court found that the action commenced in 2014 was out of time and statute barred. 8.24 In our decision in the case of Absa Bank Zambia PLC v T and L Limited and Others13 (an action pertaining to land), the main issue was whether the , Respondent's action against the Appellant was brought too late under the Limitation Act 1939. The Court was of the considered view that section 26(b) only suspends the limitation period where the Plaintiff could not, with reasonable diligence, have discovered the fraud earlier. In the Absa case, the Court rejected the Respondent's reliance on section 26(b)2 and came to the conclusion that the Respondent had access to sufficient information by 2008, to pursue a claim, even if the alleged fraud had occurred. (emphasis is ours). 8.25 Further and in a recent decision of the Supreme Court, in the case of Chama Chelemu & two others v Odile Loukombo 'Chelemu'14, although pertaining to rights over a disputed matrimonial property, the Court was of the settled view that the disputed transfer of the property having been effected in 2004, time began to run in 2004 and not from 2012 when the testator passed away, nor from 2020, when the marriage was annulled. Simply speaking, the Court emphasized that statute bar is a procedural but complete defence ensuring finality. Applying the reasoning above to the facts of the case before us, it is evident that the Respondent, the owner of his own bank account could have and should have made a conscientious follow up on his account and not left it to years later, when he allegedly instructed Counsel. Such voluntary neglect cannot and should not delay the period of limitation. J21 8.26 We refer to the case of R.B. Policies at Lloyd's v Butler15 in which Streatfield J stated as follows: "One of the principles of the Limitation Act 1939 is that those who go to sleep on their claims should not be assisted by the courts in recovering their property. But another equally important principle is that there shall be an end to these matters and that there shall be protection against stale demands. 11 8.27 In light of the above, we are of the considered view that the lower Court misdirected itself when it considered that the action accrued from the date when the Respondent's Advocates made a request for bank statements. The following extract of its finding arrived at on page R18 is perverse and against the weight of evidence before the lower Court: "In the circumstances, I find that the plaintiff herein was still within the time frame stipulated in the statute of limitation when he commenced this action as it falls within the exceptions to the rule where there is fraud or evidence of it. 11 8.28 In casu, the Respondent had both the means and opportunity to request his account statement at any time prior to 2021, and his decision not to do so does not satisfy the threshold of reasonable diligence required to delay the running of time under section 26(b) 2 • 8.29 In summation, the Respondent's delay in taking action, despite having access to relevant account information and the ability to inquire about his account status, demonstrates a lack of reasonable diligence. This failure undermines any argument for an extension of the limitation period under section 26(b)2 J22 and reinforces the principle that claims must be brought within the defined statutory timeframe to promote certainty and fairness in the administration of justice. 9.0 CONCLUSION 9.1 As earlier stated in this Judgment, we have considered the grounds of appeal wholesomely. The net result is that there is merit in the appeal. We accordingly set aside the Ruling of the lower Court, as a consequence of which, the action stands dismissed for being statute barred. We award costs to the Appellant. ' l M. J. SIAVWAPA JUDGE PRESIDENT F.M. CHISHIMBA A.N. PATEL S.C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J23