Lactalis Zambia Limited and Anor v Mukulu Dairies Limited (CAZ/08/341/2022) [2022] ZMCA 148 (12 September 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) CAZ/08/341/2022 IN THE MATTER OF: LACTALIS ZAMBIA LIMITED IN THE MATTER OF: SECTION 134 OF THE COMPANIES ACT NO 10 OF 2017 IN THE MATTER OF: ORDER XLIV OF THE HIGH COURT RULES, CHAPTER 27 OF THE LAWS OF ZAMBIA BETWEEN: LA CT ALIS ZAMBIA LIMITED.._ INTENDED 1 ST APPELLANT DALMATASPA AND ' ..,/ ---- ~r_-<- -~ , ,,:;; INTENDED2Nn APPELLANT MUKULU DAIRIES LIMITED ~ INTENDED RESPONDENT 1 I "~ ( \ , Coram: Hon. Lady Justice N. A Sharpe-Phiri in Chambers on 12th September 2022 For the Intended Appellants: Mr. M. Chiteba & Mr. P. Chomba of Messrs Mulenga Mundashi Legal Practitioners For the Intended Respondents: Mr. M. Ndalameta of Messrs Musa Dudhia & Company Ex tempore Ruling Cases referred to: Legislation referred to: I . Court of Appeal Act, No. 7 of 2016 2. Court of Appeal Rules, Statutory Instrument No. 65 of 2016 Rl This application was brought by the intended appellants seeking leave to appeal against the Ruling ofMbewe, J of the High Court of 14th July 2022. The summons was made pursuant to Section 9(b) and Section 23(1) of the Court of Appeal Act and Order X Rule 4(5) of the Court of Appeal Rules, 2016. It is supported by an affidavit of 23 rd August 2022 sworn by one Rakesh Sharma, the Chief Executive Officer of the 1st intended appellant. The gist of his depositions is that the intended respondent brought an action by way of Petition against the 1st and 2nd intended appellants under Section 134 of the Companies Act No. 10 of 2017. Following the commencement of this action, the intended appellants filed two applications, firstly seeking to dismiss the Petition for irregularity and for want of jurisdiction on 30th November 2021 and subsequently seeking leave to file an Answer out of time filed on 3rd December 2021. The later application was dismissed by the Court by Ruling of 14th July 2022. Being dissatisfied with the said Ruling, on 2nd August 2022, the intended appellants sought leave from the lower Court to appeal to the Court of Appeal, which was declined by the learned Judge on 16th August 2022, hence the application being renewed before this Court. The respondent filed an affidavit in opposition on 8th September 2022 sworn by their advocate essentially indicating that the intended appeal does not disclose real prospects of success or compelling reasons as to why the intended appellants should be granted leave to appeal. The matter was scheduled to 12th September 2022 for hearing of the application. On the said date, both Counsel for the appellant and respondents attended Court. Both Counsel relied on their respective affidavits and arguments filed before Court. I am grateful to Counsel for the authorities. I have carefully considered the affidavits on record, the arguments of the parties and the relevant rules of this Court. R2 Section 12(2) of the Court of Appeal Act provides that: 'A single Judge of the Court may grant leave to appeal where an appellant is denied leave to appeal by the High Court or quasi-judicial body.' The foregoing provides jurisdiction to this Court to entertain an application for leave to appeal, where the lower Court has declined to grant the same. It is undisputed that the Judge of the lower Court refused to grant the applicant leave to appeal to this Court. Hence, the application is properly before this Court. In the affidavit in support and the arguments, the intended appellants have endeavoured to show how the appeal has reasonable prospects of success and compelling reasons for the appeal to be heard. Without delving into the merits of the intended appeal, I have reviewed the grounds of appeal and am satisfied that the intended appellants have demonstrated that their appeal has reasonable prospects of success and that there are matters of law of public importance to be addressed by this Court. I am therefore satisfied that this is a proper case to exercise my discretion and grant the intended appellants leave to appeal. For the foregoing reasons, I allow the application as prayed. The costs of the application are in the cause. Dated at Lusaka this 12th September 2022 ~ rp e -Ph i r i 'F ~PPEAL JUDGE R3