Faustine Mwenya Kabwe and Ors v Access Financial Services Ltd (In Liquidation) (CAZ/08/442/2024) (29 April 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA CAZ/08/442/ 2024 HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MATTER OF: ACCESS INVESTMENTS LTD IN THE MATTER OF: SECTIONS 64, 82(3), 82(8), 85(1) 93, 96, 98, 99 AND 363 OF THE COMPANIES ACT, NO.10 OF IN THE MATTER OF: AN APPLICATION BY A MEMBER OF A COMPANY FOR AN ORDER TO CONVENE A MEMBERS' AND DIRECTORS' MEETING IN THE MATTER OF: AN APPLICATION FOR AN ORDER OF APPOINTMENT OF DIRECTORS OF ACCESS INVESTMENTS LIMITED PURSUANT TO SECTION 96 OF THE COMPANIES ACT, NO. 10 OF 2017 2 9 APR 2075 BETWEEN: FAUSTINE MWENYA KABWE 1 APPELLANT ST EDWARD SHAMUTETE 2ND APPELLANT AARON CHUNGU 3RD APPELLANT ACCESS INVESTMENTS LTD 4 TH APPELLANT AND ACCESS FINANCIAL SERVICES LTD (In Liquidation) RESPONDENT Before the Honourable Lady Justice B.M. Majula, this 29th day of April, 2025. For the Appellants Ms. N. Mwila & Mr. S. T. Banda of Simeza Sangwa & Associates For the Respondent Mr. I. Siame & Mr. Z. Phiri of Messrs Linda Mataka & Partners R2 RULING Cases referred to: 1. Allan u Sir Alfred McAlpine & Sons Ltd (1968) 1 All ER 543 2. Dipak Patel v David Kangwa Nk.onde- SCZ Appeal No. 125/ 2010 3. Access Bank Ltd v Group Five/ ZCON Joint Venture (SCZ/ 8/ 52/ 2015) 4. National Pension Scheme Authority v Metraclark (Zambia) Ltd (CAZ I 8/ 80/ 2016) 5. Kalyangu Kapepe v John William Clayton (SCZ/ 8/ 292/ 2014) 6. Anglo Irish Beef Processors v Montgomery (2002) IESC 60 7. Nahar Investments v Grindlays Bank - SCZ Judgment 1 of 1984 8. Zambia Revenue Authority v Jayesh Shah - SCZ Judgment No. 10 of Legislation referred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 of 2016 1.0 INTRODUCTION 1.1 This is a ruling on an application by the Respondent, Access Financial Services Limited, seeking an order to dismiss the Appellants' appeal for want of prosecution under Order X, Rule 7 of the Court of Appeal Rules, Statutory Instrument No. 65 of 2016. 2.0 FACTS 2.1 The background to the application is that the Appellants filed a notice and memorandum of appeal on 12 September 2024. __________J R3 Under Order X, Rule 6, they were required to file the record of appeal and heads of argument within 60 days, a deadline that initially expired on 1 November 2024. Upon their request, this Court granted an extension of 60 days on 28 November 2024, thereby extending the deadline to 27 January 2025. On 14 February 2025, before the lapse of the final extension period, which ran up to 17 February 2025 (inclusive of the 21-day allowance under the rules), the Respondent filed the instant application to dismiss the appeal. 3.0 RESPONDENT'S CASE FOR DISMISSAL OF APPEAL 3.1 Counsel for the Respondent contended that as of 13 February 2025, a registry search revealed that the Appellants had not filed the requisite documents nor sought a further extension. It was therefore argued that the delay was inordinate and inexcusable, warranting dismissal in line with the principles enunciated in Allan v Sir Alfred McAlpine & Sons Ltd1 , and our local authorities including Dipak Patel v David Kangwa Nkonde, Access Bank Ltd v Group Five/ZCON Joint Venture,2 and National Pension Scheme Authority v Metrac lark (Zambia) Ltd. 3 4.0 APPELLANT'S CASE 4.1 In response, counsel for the Appellants submitted an affidavit in opposition deposed by Naomi Mwila, asserting that the delay in filing the record of appeal and heads of argument arose due to the High Court's delay in preparing the R4 transcript of proceedings, a matter outside the Appellants' control. It was submitted that the Appellants had been diligent throughout and that, as at the time of applying for dismissal, they had already secured the transcript and finalised the documents, which were ready for filing. Counsel relied on decisions such as Kalyangu Kapepe v John William Clayton,4 Anglo Irish Beef Processors v Montgomery, 5 Nahar Investments v Grindlays Bank,6 and Zambia Revenue Authority v Jayesh Shah, 7 to argue against penalising litigants for delays arising from court administration. 5.0 HEARING OF THE APPLICATION 5.1 This matter came up for hearing on 10th April 2025. Both parties relied on their filed documents, with only brief additions that essentially reiterated the arguments already presented. 6.0 MYVIEW 6. 1 I have meticulously considered the affidavit evidence, the submissions of counsel, and the applicable authorities. The issue for determination is whether the Appellants' delay in filing the record of appeal and heads of argument constitutes such inordinate and inexcusable delay as to justify the drastic remedy of dismissal for want of prosecution. 6. 2 This Court takes judicial notice that delays in procuring court transcripts remain a prevalent procedural challenge. As recognised in Nahar Investments (supra), appellants ought RS not to suffer adverse consequences where delays are attributable to systemic administrative processes beyond their control. The Appellants in this case were not idle; the uncontroverted evidence before this Court is that they actively engaged the Assistant Registrar and finalised their documents within the extension period. 6.3 Furthermore, Order X, Rule 7 vests a discretionary power in the Court, not an automatic trigger for dismissal. This discretion must be exercised judiciously, balancing procedural efficiency with the right to be heard on the merits. I accept the Appellants' explanation as reasonable and find that they acted with sufficient diligence to preserve their right to prosecute the appeal. 6.4 The Respondent's reliance on Dipak Patel (supra) and other authorities is distinguishable on the facts. In the present matter, the extension granted by this Court had not yet lapsed at the time the dismissal application was filed. There is also no evidence of prejudice occasioned to the Respondent, nor of intentional or contumelious conduct by the Appellants. 6.5 In the premises, I am not persuaded that this is a fit and proper case to warrant the extreme remedy of dismissal for want of prosecution. 7.0 CONCLUSION 7.1 Accordingly, the application by the Respondent to dismiss the appeal is hereby declined. The Appellants shall proceed to file R6 the record of appeal and heads of argument within seven (7) days of delivery of this ruling. 7 .2 Costs for this application shall be in the cause. Delivered at Lusaka this 29th day of April, 2025. B. ~ la Court of Appeal Judge