CHRISTAIN OMILI JONNY V TUNISIKI INVESTMENT LIMITED (2019/HP/1505) [2021] ZMHC 136 (30 June 2021)

IN THE HIGH COURT FOR ZAMBIA 2019/HP/1505 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: CHRISTAIN OMILI JONNY PLAINTIFF AND TUNISIKI INVESTMENT LIMITED DEFENDANT BEFORE THE HONOURABLE LADY JUSTICE P. K. YANGAILO, IN CHAMBERS, ON 30TH JUNE, 2021. For the Plaintiff No Appearance For the Defendant: No Appearance RULING CASES REFFERED TO: 1. Lackson Mwabi Mwanza v Kangwa Simpasa and Chisha Lawrence Simpasa (2012) Vol I Z. R. 144; 2. Lewanika and Others v Chiluba (1998) Z. R. 79; and 3. Castellow v Somerset County Council (1993) 1 ALL ER 952. LEGISLATION REFERRED TO: 1. The High Court (Amendment) Rules S. I. No. 5 o/2020; and 2. The High Court Act, Chapter 27, Volume 3 of the Laws of Zambia. INTRODUCTION Rll Pa g e 1.1 This Ruling is in respect of the Defendant's application for special review to review my Ruling of 24 th November, 2020, out of time. 1. 2 Considering that that Zambia 1s currently faced with Covid-19, a global pandemic which demands social distancing and that the parties have filed herein their Affidavit evidence and Skeleton Arguments, I have dispensed with the attendance of the parties and now determine this matter on the documents on record. BACKGROUND 2.1 The Defendant applied for Special Leave to Review a Ruling of the Court by which the Defendant's Applications to Adduce Evidence by Audio Visual Technology and for an Adjournment were dismissed. According to the record, the events leading to this Application were that on 23rd November, 2020, a day before the date scheduled for trial of the action, the Defendant filed an Application to Adduce Evidence by Audio Visual Technology. A perusal of the Affidavit in Support of the said Application revealed that the Defendant's intended witness was a British National permanently residing in the United Kingdom who had been denied entry into the country. 2.1 An analysis of the documents exhibited in the said Affidavit revealed that the Defendant's intended witness' passport had been stamped at Kenneth Kaunda R21 Page International Airport on 31st October, 2020, with a directive that he should leave Zambia immediately. Another document, being an application to the Director General of Immigration dated 12th November, 2020, to permit the Defendant's intended witness to re-enter Zambia and be granted a temporal permit to attend trial was exhibited in the said Affidavit. 2.3 At t he trial of this action, on 24th November, 2020, Counsel for the Defendant made orall submissions in support of the aforesaid application and inter alia stated that the Application for a temporal permit for the intended witness was stiU pending determination by the Director General of Immigration. Couns.el proceeded to make an oral application for an adjournment to enable her time to access the Audio Video Technology facilities to present the Defendant''s case. 2.4 The Plaintiff's Counsd opposed the Defendant's applications on the basis that the Plaintiff was not given an opportunity to respond to the said application as he only received! notice of the application a day before the trial. It was further argued that the Defendant had ample time to secure the attendance of the Defendant's witness as the Notice of Hearing was issued on 11 th May, 2020 and has thereby failed to meet the rules of Court. R3f Page 2.5 In determining the foregoing applications, this Court took into consideration that the said application was filed on the 23rd November, 2020, a day before the trial and also considered the prov1s10ns of The High Court (Amendment) Rules1 which proscribes a party from lodging and a Judge from considering any interlocutory application filed less than 14 days before the commencement of trial and an application for an adjournment filed 1n less than 10 days from the commencement of trial. 2.6 This Court found that as the aforesaid rules were couched in mandatory terms, it could not depart from them. Based on the foregoing, this Court dismissed the Defendant's applications and proceeded to hear the Plaintiffs case. There being no witnesses from the Defendant, this case was deemed closed and Judgment was reserved for 29t h of April, 2021. 2. 7 It is the foregoing Ruling of the Court that is the subject of the Defendant's Application for Special Leave to Review. AFFIDAVIT EVIDENCE 3 . 1 By the Affidavit in Support of the aforesaid Application, it was d eposed inter alia that in December 2020, the Chief Justice issued a Memorandum on the Application of The High Court (Amendment) Rules1 wherein she stated that the aforesaid Rules did not apply to cases that were R4 I P age commenced before the enactment of the said Rules. A copy of the Memorandum was exhibited as 'JRM 2 '. 3.2 Counsel sought the indulgence of this Court to Review its Ruling on the Defendant's Application to Adduce Evidence by way of Audio Visual technology on the basis of the Chief Justice's guidance on the application of The High Court (Amendment) Rules 1• 3.3 The application was opposed by the Plaintiff. In the Affidavit in Opposition filed herein on 21 st April, 2021, it is inter alia deposed that the Defendant did not take action in good time as the Application for Special Leave of Court to Review its Ruling dated 24 th November, 2020, out of time, was only made in March, 2021, when trial was in November, 2020. Counsel deposed that the rules of Court are very clear on service and that the Defendant did not meet the required time frame as per High Court Rules. Counsel was of the view that the application by the Defendant was made as an afterthought meant to delay delivery of Judgment by this Honourable Court and as such, must be dismissed. 3.4 By the Defendant's Affidavit in Reply, filed herein on 27th April, 2021, the Defendant's Counsel mainly reiterated what was already on record and save to state that the Defendant's delay in applying for special leave from the Court was exacerbated by the fact that the sole witness in RSI Page this matter is resident in the United Kingdom. Further that at the time, the Corona Virus was at its peak and therefore obtaining instructions proved to be a challenge. Counsel deposed that the delay was neither deliberate or inordinate granted the circumstances of the case. SUBMISSIONS 4.1 By the Defendant's Counsel's List of Authorities and Skeleton Arguments filed on 17th March, 2021, Counsel cited a number of authorities in support of the application which included the High Court case of Lackson Mwabi Mwanza v Kangwa. Simpasa and Chisha Lawrence Simpasa1 in which it was stated as follows: - "Leave b no.t given unless,, first the evidence is material, second, that it has been. discovered since the decision; and thi.rd could n.ot with reasonable diligence have been di.scovered: before ... ,,, 4.2 On the basis of the authorities cited, Counsel submitted that the Memorandum issued by the Chief Justice constituted material fresh evidence that had only been since discovered after the Ruling of 24th November, 2020. In view of the foregoing, it was contended that it would be in the best interest of justice for this Court to review its Ruling. 4. 3 By the Plaintiff's Skeleton Arguments and List of Authorities filed on 21 st April, 2021, Counsel cited the case R61 P a ge of Lewani.ka and Oth.ers v Chi.luba2 in support of their submission that the Defendant should have made the app]ication for review in good time as opposed to making it at the point when Judgment is to be delivered so as to save the Court's time. DECISION OF THE COURT 5.1 I have carefully considered the Defendant's Application for Special Leave to Review Ruling dated 24 th November, 2020, Out of Time and the parties' Affidavit evidence. I have further considered parties' Skeleton Arguments and List of Authorities cited, for which I am grateful to Counsel. The point for determination is whether or not the Defendant has met the threshold for t he grant of an Order of Special Leave to review the Ruling of this Court. 5.2 By the said Ruling, t his Court dismissed the Defendant's Application for leave to Adduce Evidence by Audio Video Technology ma.de a day before the trial and its application at trial for an Adjournment. This Court based its decision to dismiss the said application on the Order XIX, Rule 3 Sub-rule 3 and Order XXXIIl1 Rule 2 of The High Court (Amend·men.t) R'.ules1. The afo,resaid rules provide as follows:. - "Order 19 Rule 3 Sub-rule 3 R11 P age A party shall not lodge, and a Judge shall not consider any interlocutory application fourteen days before commencement of trial. Order 33 Rule 2 A party intending to apply for adjournment of hearing shall, not less than ten days before the date set for the hearing, file a notice of that intention." (Court's emphasis) 5.3 The foregoing rules proscribe, in mandatory terms, a party from making an interlocutory application fourteen days before trial and an application for an adjournment ten days before trial. 5.4 The Defendant's Counsel made the Application for Special Leave to Review Ruling pursuant to Order XXXIX, Rule 1 and 2 of The High Court Rules2 which state as follows: - "fl) Any judge may, upon such grounds as he shall consider sufficient review any judgment or decision given by him (except where either party shall have obtained leave to appeal, and such appeal is not withdrawn) and upon such review, it shall be lawful/or him to open and rehear the case wholly or in part, and to take such fresh evidence, and to reverse, vary or confirm his previous judgment or decision. (2) Any application for review of any judgment or decision must be made not later than fourteen days after such judgment or decision. After the RSI Page expiration of fourteen days~ an application for review shall not be admitted, except by speci.al leave of the Judge on such terms as seem Just." 5.5 I refer to the case cited by the Plaintiff of Lewanika a .n.d Others vs. Chiluba2 , which confirms the Cou rt's power to review under Order XXX1X of The High. Court Rules2 and goes further to explain the stages that exist for having recourse to review. It states as fallows:: - "Review under Order XXXIX is a two stage. process. First, showing or finding a ground or gro,unds co,nsidered to, be sufficient, which then opens the· way to actua.l revi.ew.,'" 5.6 From the record, it is clear that the Defendant made this application after the expiration of fourteen days and is hereby seeking special leave of this Court to review the Ruling dated 24th November, 2020, p u rsuant to Order XXXIX, Rule 2 of The High Court R.ules?, whi.ch is cited above and whose interpretation was aptly outlined by the Supreme Court in the case of Jama.s Milling Company Limited v Imex International (PTY) Limited3 as follows.: - "For review under Order 39 rule· 2 of the High Court Rules to be available, the party seeking it m.ust show that he has discovered material evidence which wo,uld have had material effect upon the decision oj the c·ou.rt· and has been discovered since the decision. but c:ou ld not with reasonable diligence have been. discovered: before ..... The R91 Page fresh evidence must have, existed at the time of the decisi.on but had not been discovered before. " 5. 7 Based on the foregoing authorities and in determining whether the Defendant herein should be granted special leave of this Court to Review this Court's Ruling, I have to consider whether the Defendant''s application has satisfied the fo]lowing test: - 1. That the fresh evidence is material; 2. That thefresh evidence would have material effect upon the Courts decision; 3. That the fresh evidence existed prior to the decision of the Court; 4. That the fresh evidence was only discovered after the decision of the Court; and 5. That thefresh evidence could not have been discovered prior to the decision. 5.8 On my analysis of the Defendant's Affidavit in Support of its Application for Specia] Leave to Review Ruling, I find that the basis. of the Defendant''s Application for Special Leave to Review Ruling, ]S the Chief Justice's Memorandum on the Application of Statutory Instru.m.ent No. 58 of 20201 which directed that the practice and procedure in Th.e High Court (Amendment) Rules1 shall only be applied by the High Court in respect of matters commenced on or after 19th June, 2020. R lO l Page 5.9 The Defendant contends that the said Memorandum constitutes material fresh evidence that has only since been discovered after the Ruling dated 24th November, 2020. The P]aintiff on the other hand did not address the Chief Justice's Memorandum in his arguments, but insisted that the Defendant's Application to Adduce evidence by Audio Video Technology was not done timely and there by prejudiced the Plaintiff as he was denied an opportunity to respond to it. 5.10 On my ana]ysis of the Chief Justice's Memorandum, I am satisfied that the Defendant h as met all the conditions for this Court to con sider a Review of its Ruling dated 24th November, 2020, as the Chief Justice's Memorandum on the Application of Th,e High. Court (Amendment) Rules1 is material evidence that offers direction on the application of the aforesaid High Court Rules, which direction has an effect on the Ruling subject of this application. I note further , that the said Memorandum was issued on 28th December, 2020, which date is clearly after the subject Ruling d a ted 24th November, 2020 and therefore, could not h ave been discovered pnor to the said Ruling. Accordingly, the Defendant's Application for Special Leave to Review the subject Ru]ing is granted. 5.11 I will now proceed! to review the Defendant's Application to Adduce Evidence by Audio Video Technology made on 23rd R11 IP age November, 2020. In determining this Application for Review of the subject Ruling, I shall consider the law and practice of the High Court as it stood prior to the enactment of The High Court (Amendment) Rules. 1 5.12 According to the Affidavit in Support of the Application to Adduce Evidence by Audio Video Technology, the Defendant's Counsel contended that the intended witness was a British National and that his application for a temporal travel permit to enable him appear before this Court was rejected. To support this assertion, Counsel exhibited a copy of a page from the Defendant's Stamp which indicated that he was directed to leave Zambia immediately by the Immigration Department at Kenneth Kaunda Airport on 31 st October, 2020. Counsel further deposed that the Def end ant had made another application to the Zambian Immigration Department dated 12th November, 2020, for a temporal permit to enter Zambia and attend trial but that the said application had not yet been approved. 5.13 At the trial of the action on 24th November, 2020, Counsel for the Plaintiff opposed the Defendant's Application to Adduce Evidence by Audio-Visual Technology on the basis that he was only notified of the said Application at 16:37 hours on the day before trial and as such, had been denied an opportunity to respond. R12 I Page 5.14 On my review and analysis of the Defendant's Application to Adduce Evidence by Audio Visual Technology, I find and hold that by the Defendant's Affidavit in support of the Application, the Defendant demonstrated that it attempted to secure the attendance of the intended witness at trial as is evidenced by the application for a temporal permit addressed to the Director General Immigration dated 12th November, 2020. I further take into consideration the Def end ant's submissions that t he intended witness was permanently resident in the United Kingdom and that due to the Covid-19 pandemic, Counsel may not have been able to obtain instructions. 5. 15 I note further, that the Plaintiff's Counsel in opposing the application stated t hat the Plaintiff had been denied an opportunity to respond! to the Defendant's application as it was fi]ed a day before the trial. However, the Plaintiffs Cou nsel did not demonstrate to this Court how this denial or the grant of the Defendant's application to Adduce eviden ce by Audio Visual Technology would have prej udiced him. According to the case of Castellow v Somerset Ca,unty Council3 it was held that: - "The plaintiff s:h.ould not in the ordinary way be denied an adju.dication of his clai.m on its m.erits because of procedural' default unless the default causes preiudice to his opponent for which an award of costs cannot compensate."' R13, lf Page 5.16 On the strength of the foregoing authority, and considering that the Defendant herein has filed a Coun ter-Claim to this suit, I find that as the granting of the Defendant's Application to Adduce Evidence by Aud io Visual Technology will not prejudice the Plruntiff in any way, the Defendant herein should not be denied an opportunity to present its case. 5.17 Turning to my review of Defendant's Application for an Adjournment, I am guided by the earlier provision s of Order XXXIII, Rule 1 of The High Court Rules2 , which states as follows regarding the postponement of the hearing of a matter: - "The Court may postpone the hearing of any ctvil cause or matter, on being satisfied th.at the postponement is likely to have the effect of better· ensuring th.e h.ea.ring and determination of the questions between the parties on the merits, and is not made for t:he purpo,se of mere delay. The postponement may be made on such terms as to the Court seem just." 5 . 18 From the foregoing provision, it is clear that before the enactment of The High Court (Amendment) Rules1, there was no restriction on time within which one may apply for an adjournment. This Court had the discretion to postpone the hearing of a matter on the condition t h a t t he adjournment is likely to have the effect of better ensuring the h earing and determination of the questions between R14 I P age the parties and that the postponement is not made for mere delay. 5.19 On my analysis of the facts leading to this application, particularly the predicament that the intended Defendant witness has found himself in of being unable to physically appear before this Court and considering that no reasons have been advanced by the Plaintiff to demonstrate how he would be prejudiced by the grant of an adjournment, I am satisfied that the Defendant's application for an adjournment was not made for mere delay of the case and that the grant of an adjournment is likely to have the effect of better ensuring the hearing and determination of the questions between the parties. Accordingly, the decision to dismiss the Defendant's application for an adjournment made on 24th November, 2020 is hereby reversed. 5.20 Based on my findings above and in exercise of the discretion conferred upon this Court pursuant to Order XXXIX, Rule 1 of The High Court Rules2 cited above, I reverse the Ruling dated 24 th November, 2020, in its entirety and order the reopening of this case for the purpose of taking the Defendant's evidence via Audio Video Technology on a date to be advised in due course. 5.21 I make no order as to costs. R15 I P age 5.22 Leave to Appeal is granted. Signed, Sealed and Delivered at Lusaka, this 30th d.ay of June, 2021. P. K. YANGAILO HIGH COURT JUDG'E R16 IP age