Lactalis Zambia Limited and Anor v Mukulu Dairies Limited (CAZ/08/219/2024) [2024] ZMCA 261 (18 July 2024)

IN THE COURT OF APPEAL OF ZAMB1A HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/08/219/2024 BETWEEN LACTALIS ZAMBIA LIMITED DALMATA SPA AND "r'"'i ,, 0 I o JUL LJ_ 1 "'... .. , •, / 1 ST INTENDED APPELLANT / . . / . 2-"'P--INTENDED APPELLANT MUKULU DAIRIES LIMITED INTENDED RESPONDENT CORAM: Hon. Mr. Justice K. Muzenga in Chambers at Lusaka. For the Intended Appellants: Mr. P. Chomba & Ms C. Musausheni of Messrs Mulenga Mundashi Legal Practitioners ..( For the Intended Respondent: Mr. M. Ndalameta & Ms H. C. Chileshe of MAY and Company EX-TEMPORE RULING Cases referred to: 1. Group Five Zambia v Nuco Industrial Services Limited - CAZ/08/116/2022 2. Adam Botha v Pulse Financial Services Limited (Trading as Entrepreneurs Financial Services) - CAZ/08/281/2021 Legislation referred to: R2 1. The Court of Appeal Act, No. 7 of 2016. 2. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016. This is an application for an order for leave to appeal to the Court of Appeal against the High Court ex-tempore Ruling dated 27th February 2024 pursuant to Section 9(b} and Section 23(1}(e} of the Court of Appeal Act No. 7 of 2016 as read together with Order X Rule 4(5} of the Court of Appeal Rules, Statutory Instrument No. 65 of 2016 and all Enabling Laws. I have carefully considered the notice of motion to raise preliminary issue and for an order to dismiss the application for leave to appeal, the affidavits and arguments for and in opposition to the application. The grounds on which the preliminary objection is anchored are that: 1. The application for leave to appeal was made woefully out of time; and 2. The evidence in support of the application for leave to appeal goes beyond what was before the Judge in the High Court. Learned counsel for the respondent has argued that the lower court delivered its Ruling declining the applicant's application for leave to appeal on the 20th March 2024. And that the present application was only made on R3 the 10th May 2024, way outside the period of 14 days from the date the lower court declined leave. On the other hand, learned counsel has argued that their application was made specifically pursuant to Order 10 Rule 4 and that no timeline is provided for in which to renew the application and further no sanction is provided for non-compliance to the none existent timeline. I note that there is no dispute on the fact that the renewed application before me was made outside the period of 14 days. The issue seems to be whether there is a timeline for renewal of applications for leave to appeal to this court. We have had occasion in a number of cases to guide on this subject matter. In the case of Group Five Zambia v Nuco Industrial Services Limited1, I had the following to say: "I have taken note of the provisions of Order 7 of the Court of Appeal Rules which basically encompasses interlocutory applications before a single judge of this Court. There is no time frame given for renewing an application to a single Judge in that Order. I wish to guide that in that regard, recourse must be had to the provisions of Order 10 of the Court of Appeal Rules, which deals with civil appeals, especially Rule 2 which deals with applications before a single Judge of this Court. It provides that: 2.(l)An application to a single Judge shall be made by notice of motion or summons within fourteen days from the date of the decision complained of." R4 I proceeded to state in paragraph 6. 7 that what is abundantly clear from the foregoing provisions is that a renewal application before a single judge of this court must be made within 14 days from the date of the decision complained of. In the case of Adam Botha v Pulse Financial Services Limited (Trading as Entrepreneurs Financial Services),2 I stated that: "In applications such as these, that is leave to appeal, stay, extension of time and other similar applications, no appeal lies to this court. An aggrieved party simply needs to renew the application before a single judge of this court within 14 days from the date the decision in issue was made." The within application is a renewed application for leave to appeal to this court which was made about 40 days from the date of the Ruling declining leave to appeal by the lower court. This is clearly outside the prescribed 14 days period. I am inclined to agree with the argument by learned counsel for the respondent. I hold that the application for leave is incompetently before me and as such I am starved of jurisdiction to grant it. The argument by learned counsel that since no sanction has been provided for default, no penalty or sanction can flow, holds no water in the circumstances of this case. When a statute provides for timelines for bringing applications or filing of court documents, default or filing outside RS the stipulated time goes to jurisdiction and/or competence of the said documents or applications. In the circumstances I uphold the first preliminary issue. I therefore dismiss the application for leave to appeal for being incompetently before me as leave or extension of time was not sought before bringing the same. I find it unnecessary to consider the second ground of the objection. I award costs of this application to the respondent to be taxed in default of agreement. Dated this ... .. .................. day of July 2024. \~tL K. M~a COURT OF APPEAL JUDGE