Cusa Zambia Ltd v Attorney General (Appeal 51 of 1999) [2001] ZMSC 112 (22 March 2001)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 51/99 BETWEEN: CUSA ZAMBIA LIMITED APPELLANT AND THE ATTORNEY GENERAL RESPONDENT Coram: CHAILA, LEWANIKA, CHIBESAKUNDA, JJS 26th October, 199 and 22nd March, 2001 For the Appellant : Mr. M. Mutemwa, Mutemwa Chambers For the Respondent : Mr. S. Chisulo, Solicitor-General Mr. J. Jalasi, State Advocate JUDGMENT Chaila, JS, delivered the judgment of the court. This is an appeal by CUSA ZAMBIA LIMITED, hereinafter referred to as the Appellant, against the decision of Chibomba, J, at Chambers, allowing the Attorney General, hereinafter referred to as the Respondent, to defend an action, which had been determined by the Deputy Registrar. The record showed that the appellant had issued a Writ of Summons against the respondent, who before an appearance was entered to the Writ, wrote to the respondent and told him to ignore the Writ since it had been prematurely issued. The respondent did not, therefore enter an appearance - J2 - to that Writ. The appellant later took out summons for judgment in default of an appearance. The respondent did not appear to defend the action and the Deputy registrar entered judgment in default against the respondent. The respondent appealed to the Judge at Chambers. The Appellate Judge heard the submissions and various authorities cited to her and she came to the conclusion that there were triable issues, which could not be settled through affidavit evidence and set aside the judgment and granted the respondent unconditional leave to defend the action. The appellants through their advocate have advanced mainly one ground which is that the learned trial judge erred in law and fact in holding that there were triable issues between the appellant and respondent thereby granting unconditional leave to defend. Counsel has vigorously argued that according to their affidavit evidence, there were no triable issues and that the learned trial Judge should have not given the respondent unconditional leave to defend. We have considered the submissions of the learned counsel for both sides. We have seriously considered the affidavits contained in the record and judgment of the appellate Judge. The learned appellate Judge went through the authorities thoroughly and came to the conclusion that this case cannot not be decided on the affidavit evidence alone. We have considered the arguments and evidence on record and judgment of the court below. We clearly agree with the learned appellant Judge’s decision or conclusion that this case cannot be settled on the affidavit evidence and that it can only be settled by a trial. The appeal is therefore dismissed with costs. - J3 - M. S. CHAILA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE