Nyundu Nyundu Joseph v Pulse Financial Services Limited (Trading as Entrepreneurs Financial Centre) (CAZ/08/400/2022) [2022] ZMCA 146 (26 October 2022)

IN THE COURT OF APPEAL FOR ZAMBIA AT THE LUSAKA DISTRICT REGISTRY HOLDEN AT LUSAKA ( Civil Jurisdiction) CAZ/08/400/2022 BETWEEN: AND Appellant PULSE FINANCIAL SERVICES LIMITED (Trading as Entrepreneurs Financial Centre) Respondent Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 26th October 2022 For the Appellant: For the Respondent: Mr. J. Nyundu, in person Mr. J. Shawa, In-house Counsel, Pulse Financial Services Limited Extempore Ruling Legislation referred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 of 2016 This matter comes before me for hearing of two applications. The first is an application to stay execution of judgment brought by the appellant by way of exparte summons on 23 September 2022. It was endorsed to be heard inter-parte. Rl In support of the application, the appellant filed an affidavit sworn by himself in which he contends that the lower Court did enter judgment against him on 14 June 2022 awarding the sum of K295,015 to be paid to the respondent within 90 days. Following the entry of the judgment, he sought an order to pay the debt in instalments which application was declined. Being dissatisfied with the decision of the lower Court, he filed an appeal into this Court in which he averred that the learned Judge in the Commercial Court erred when she failed to take into consideration the evidence before the Court showing the disbursed and collected amounts. He added that the Court further failed to consider the amounts that were repaid. He further contended that he had always been willing to settle the debt in instalments but due to the financial challenges his business was facing, he was unable to do so. He also contended that he would be prejudiced if a stay of execution is not granted as the respondent had already filed a writ of fifa. He urged the Court to allow an order of stay of execution pending appeal so that the appeal could be heard on its merits. The respondent opposed the application by way of affidavit in opposition filed on 27 September 2022 deposed to by one Kelvin Mayonga, the Chief Credit officer in the employ of the respondent. R2 The respondent disputed that the appellant had filed an application to stay execution of the judgment debt and that the learned Judge in the Court below had rendered such a ruling under cause 2022 / HPC / 0007. The respondent contended that the appellant filed Notice of Appeal and Memorandum of Appeal beyond the time limit set by the rules, that the extempore judgment was delivered on 14 June 2022, whilst the Notice of Appeal and memorandum of Appeal were filed on 16 September 2022. The respondent denied the appellant's contention and insisted that the Honourable Judge in the Court below considered all facts and payments made by the appellant. Further, that the appellant had not made any commitment to settle the judgment sum and that his equity of redemption had lapsed. The respondent further contended that it had not filed a writ of fifa but had filed a writ of delivery dated 15 September 2022 pursuant to the extempore judgment dated 14 June 2022 , which clearly stated at paragraph 7 .0 that in default of payment of the judgment sum, the appellant shall deliver up for sale of the pledged movable property; and that the respondent was within its right to file the writ of delivery. The respondent urged the Court to dismiss the appellant's application for stay of execution of judgment. R3 The appellant filed an affidavit in reply on 5 October 2022 in which he essentially repeated his earlier sentiments in the affidavit in support. The respondent also brought an application on 5 October 2022 to dismiss the appellant's appeal pursuant to Section 25 of the Court of Appeal Act and Order X Rule 3(5) of the Court of Appeal Rules. It is supported by an affidavit sworn by one Tombi Chango, a Legal Officer in the respondent company in which she deposes that the appellant filed a Notice of Appeal and Memorandum of Appeal beyond the thirty-day time limit set by the Rules. That the Extempore judgment appealed against was delivered on 14 June 2022, whilst the Notice of Appeal and Memorandum of Appeal were only filed on 16 September 2022. The deponent further contends that the appeal is out of time and should therefore be dismissed. The appellant filed his affidavit in opposition into Court on 21 October 2022 . He disputed the contents of paragraph 3 and averred that from the time the Commercial Court Judge passed the extempore judgment on 14 June 2022, he took a step on 15 July by filing an application for stay of the said extempore judgment and liquidation of the judgment sum in instalments and that on 1 7 August 2022, the Commercial Court Judge delivered extempore ruling dismissing his application and further granted leave to appeal. R4 Further, that on 16 September 2022, he filed Notice of Appeal and Memorandum of Appeal before this Court as admitted and alluded in the respondent's affidavit. He contended that the respondent was only desirous of taking possession of his property as the respondent had on 15 September 2022 filed before the Commercial Court writ of delivery and thereafter had drawn conveyancing documentations for his properties which the respondent wants him to sign under coercion. He urged this Court to expunge the respondent's application and allow him to prosecute the matter herein for the purpose of liquidating the judgment sum as proposed. The matter was initially scheduled for hearing on 19 October 2022 but was rescheduled to today 26 October 2022 to give the appellant an opportunity to respond to the respondent's application. On the said date, both Counsel for the respondent and the appellant were present. I have carefully considered the two applications before me together with the affidavit evidence and arguments on record. I will begin with addressing the application to dismiss the appeal. It is made pursuant to Section 25 of the Court of Appeal Act and Order X Rule 3(5) of the Court -of Appeal Rules. RS · Section 25 of the Court of Appeal Act specifically provides as follows: 'Subject to Section twenty-three, a person who intends to appeal to the Court from a judgment shall do so within thirty days of the judgment'. The aforementioned provision is supplemented by Order X Rule 3(5) of the Court of Appeal Rules which states: 'The notice and memorandum of appeal shall be entitled in the proceedings from which it is intended to appeal and shall be filed with the Registrar within thirty days after the judgment appealed against'. The provisions of Section 25 of the Court of Appeal Act and Order X Rule 3(5) of the Court of Appeal Rules are couched in mandatory terms by the use of the word "shall". It is clear and unmistakable that an appellant desirous of appealing to the Court of Appeal is required to file the notice of appeal and memorandum of appeal within thirty days of the judgment appealed against. If a party is unable to file the appeal within the prescribed timeframe, the party is required to bring an application for an extension of time or to appeal out of time. A respondent is at liberty to apply to dismiss the appellant's appeal if the notice of appeal and memorandum of appeal is not filed within the requisite timeframe. R6 In this case, the judgment appealed against was delivered on 14 June 2022, while the notice of appeal and memorandum of appeal were only filed on 16 September 2022. The appellant clearly did not file the notice of appeal and memorandum of appeal within the ·mandatory thirty-day period after the date of the judgment. The filing of the notice and memorandum of appeal were thus, distinctly out of time. There is no evidence before the Court that the appellant sought an extension of time or leave to file the appeal out of time. In view of the foregoing, I am satisfied that there is merit in the application to dismiss. I accordingly dismiss the appeal for having been lodged out of time without leave of the Court. Given that the appeal is dismissed, it follows that the application for a stay of execution which is made pending appeal accordingly fails and is dismissed forthwith. Costs to the respondent, to be taxed in default of agreement. Dated at Lusaka this 26th October 2022. ~--rR_ N_: Sharpe-Phiri COURT OF APPEAL JUDGE R7