Derek Mukokanwa v Anthony Mbewe and 2 Ors (Appeal No. 159/2021) [2023] ZMCA 440 (29 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL NO 159/2021 BETWEEN: DEREK MUKOKANWA AND ~--- -----=----- /{f lJWC OF l~M ,~~ 1~1 APPELLANT \ . . I ''-~..,.... Gi_STR--~ ~ !Jf:0~,7. l\)~,._ ANTHONY MBEWE ATTORNEY-GENERAL DRUG ENFORCEMENT COMMISSION -- - 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT CORAM: SIAVWAPA, JP, CHISHIMBA AND BANDA-BOBO, JJA On 22 nd and 29 th August 2023 FOR THE APPELLANT: NOT IN ATTENDANCE FOR THE RESPONDENTS: NOT IN ATTENDANCE JUDGMENT SIAVWAPA, J. P. delivered the Judgment of the Court Cases referred to: 1. 2. 3. Lewanika and Others v Chiluba and 4 Others (1998) ZR 79 Jamas Milling limited v Imex International (Pty) Limited SCZ Judgment No 20 of 2002 Stanbic Bank Zambia Limited v Savenda Management Services Limited CAZ/ 08/ 040/ 2016 4. Minister of Home Affairs and the Attorney General v Lee Habasonda (2007) ZR 207 Legislation referred to: 1. 2. Rules of the Supreme Court 1999 edition The High Court Rules Chapter 27 of the Laws of Zambia Other works Black's Law Dictionary 8th Edition 1.0 INTRODUCTION 1. 1 This appeal is against the order of the High Court rendered by the Honourable Mrs. Justice Elita Phiri Mwikisa on 26 th February, 2021. 1.2 By the said order the learned Judge refused to review her Ruling dated 2 nd February, 2021. 2.0 BACKGROUND 2.1 In the Court below, the 1st Respondent; who was the Plaintiff commenced an action against the Appellant and the 2 nd and 3 rd Respondents. 2.2 In that action, the 1st Respondent sought specific performance of a Contract of Sale relating to Stand No. 8423 Lusaka. 2.3 During trial on 27 th August, 2020, Counsel for the Plaintiff, now 1st Respondent, applied to the Court that one Stanislous J2 Chishimba, who was a party to the loan agreement, be subpoenaed to testify. 2.4 There being no objection from the Defendants' Counsel, the Court granted the application. Soon after, Counsel for the 2 nd and 3 rd Defendants applied to the Court for leave to file a supplementary bundle of documents. 2.5 Similarly, Counsel for the 1st Defendant and the Plaintiff did not object to the application upon which the learned Judge granted the application and adjourned the matter to a stated date for continued trial. 2.6 On the 5 th October, 2021 when the matter came up for continued trial; the subpoenaed witness took the stand and testified. 2. 7 During cross-examination of the witness by Counsel for the 1st Respondent, the witness was directed to refer to page 13 of the Defendants' supplementary bundle of documents. 2.8 Counsel for the Plaintiff objected to the reference to the supplementary bundle of documents because the same was filed more than 14 days after closure of pleadings contrary to Order 24 rule 2 of the Rules of the Supreme Court 1999 edition. J3 2. 9 Counsel for the 1st Respondent opposed the objection on the ground that the Court had already allowed the production of the supplementary bundle of documents. 2.10 In her Ruling dated 2 nd February, 2021, the learned Judge took the view that it was too late to P.roduce the supplementary bundle of documents. She sustain+ the objection and refused to admit the supplementary bundle of documents into evidence. 3.0 APPLICATION FOR REVIEW 3.1 Unhappy with the outcome, the Appellant applied to the Court for an order for review of the Ruling setting aside supplementary bundle of documents. 3.2 In the affidavit in support, the Appellant stated that at the time Counsel for the Appellant applied to the Court, Counsel for the 1st Respondent did not object and that upon the application being granted by the Court, the Appellant served the supplementary bundle on the 1st Respondent. 3.3 The learned Judge made an order on 26 th February 2021 refusing to review her Ruling and granted leave to appeal. By a separate order, she stayed proceedings pending appeal. J4 4.0 THE APPEAL 4.1 On 15th March, 2021, the Appellant filed Notice and Memorandum of Appeal against the order refusing to review. 4.2 The Appellant advanced two grounds of appeal as contained in the Memorandum of Appeal set out as follows; 1. That the Honourable Judge in the Court below erred in law and in fact by refusing to review her Ruling dated 2 nd February, 2021 in which she refused to admit supplementary bundles of documents for the 2 nd and 3rd Defendants when in fact the Appellant had furnished the Court with sufficient grounds on which the review should b e based. 2. That even though the power to review the Ruling by the Honourable Judge was discretionary same was not judiciously exercised on good and sufficient grounds as it was bereft of proper reasoning or authorities to justify the refusal to review the Ruling. 5.0 ARGUMENTS IN SUPPORT 5.1 The gist of the arguments in ground one is that the learned Judge did not render any reason for refusing to review the Ruling. JS 5.2 As authority for the argument, the Appellant referred us to and cited the case of Lewanika and Others v Chiluba and 4 Others 1 in which the Supreme Court of Zambia guided on the application of Order 39 of the High Court Rules. 5.3 In ground two, the Appellant argues that the learned Judge, failed to exercise her discretion judiciously. In support of the argument, the Appellant referred us to the definition of "Judicial Discretion" by Black's Law Dictionary, 8 th Edition. 6.0 ARGUMENTS IN OPPOSITION 6.1 None of the Respondents filed heads of argument in opposition. On 17th August, 2023, the Appellant filed a Notice of none appearance. The Respondents did not appear on the date of hearing. We shall therefore, base our Judgment on the grounds of appeal and the heads of argument filed by the Appellant. 7.0 OUR ANALYSIS AND DECISION 7. 1 It is not in dispute that the Appellant, through Counsel, applied to the Court on 27 th August, 2020, for leave to file a supplementary bundle of documents. The Appellant further applied for an adjournment of the matter should the Court grant the first application. Counsel for the 1st Respondent, Mr. Nyirongo, gave a no objection to the applications and the learned Judge granted the applications. (see pages 258 and 259 of the Record of Appeal) J6 7.2 The Appellant was therefore, rightly dissatisfied with the decision by the learned Judge to set aside the supplementary bundle of documents while the Appellant's Counsel was cross examining a witness subpoenaed by the Court at the instance of the 1st Respondent. 7. 3 It is our considered view that by seeking to have the Court review its Ruling, the Appellant was on firm ground. This is so because authorities abound that guide on the conditions that must be present for the Court to review its decision. 7.4 One of the leading authorities on the review pursuant to Order 39 of the High Court Rules is that of Jamas Milling Limited v Imex International (Pty) Limited2 , in which the Supreme Court of Zambia laid down the following guidance; (i) there must be fresh evidence which existed at the time of the decision; and (ii) a demonstration of failure to discover such fresh evidence with due diligence 7.5 In this case, the Appellant argued that he had provided grounds that warranted a review as per the case of Lewanika and others v Chiluba (supra). The basis of the argument was that it was erroneous for the learned Judge to refuse to admit the J7 supplementary bundle of documents having earlier granted leave to file the same. 7. 6 The issue here is whether the fact that the learned Judge had, on 27 th August, 2020, granted leave to file a supplementary bundle of documents, was sufficient ground for the learned Judge to review her Ruling of 2 nd February, 2021. 7. 7 We note that in arguing his objection to the admission of the supplementary bundle of documents on 22 nd October, 2020, Mr. Nyirongo relied on Order 24 rule 2 of the Rules of the Supreme Court 1999 edition among other authorities. This is to the effect that supplementary bundles shall be filed within 14 days after the closure of pleadings. 7.8 He argued that since the matter was commenced on 18th October, 2018, and pleadings had closed more than 14 days before the application, the same was incompetent and liable to be dismissed without hearing the application. He drew inspiration from our Judgment in the case of Stanbic Bank Limited v Savenda Management Services Limited3 in which we held that an incompetent application was not worth hearing at all. 7.9 While we stand with our position that an incompetent application is not worthy wasting time on, we find it J8 disingenuous that counsel, who had at the time the application was made, given a no objection to the application, should, a month later, raise the objection on account of time within which the application ought to have been made having elapsed. 7.10 Mr. Nyirongo admitted that the Appellant had served the supplementary bundle of document s on the firm on 22 nd September, 2020, following leave that was granted by the Court on 22 nd August 2020. Our view is that the appropriate time for Mr. Nyirongo to have opposed the filing of the supplementary bundle of documents is at the time the application was made on 22 nd August 2020. 7.11 Raising the objection after the learned Judge had granted leave was as good as locking the stable after the horse has bolted and therefore, futile. We believe that the reason advanced by the Appellant was sufficient to trigger the process for review under Order 39 of the High Court Rules. 7. 12 We also note that in dismissing the application for review, the learned Judge fell short in her decision-making. This is so because the learned Judge simply stated; «J refuse to review my decision. " 7. 13 This approach is highly undesirable as it fails to meet the barest minimum standard of Judgment writing as espoused in the J9 case of Minister of Home Affairs and the Attorney General v Lee Habasonda4 . 7 .14 The learned Judge ought to have d elivered a well-reasoned Ruling stating why she could not grant an order to review her Ruling of 2 nd February 2021. 7.15 In the circumstances, it is our considered view that this is a proper case in which to set aside the Ruling refusing to review the Ruling of 2 nd February, 2021. 7 .16 The decision to refuse to admit the supplementary bundle of documents after leave to do so had been granted was highly prejudicial to the Appellant's case as he had already prepared to use the documents in his defence. 7. 1 7 The learned Judge misdirected herself when she entertained an application to set aside the supplementary bundle of documents for which she had earlier granted leave to file. This is more so because the 1st Respondent did not make an application for the Judge to set aside the leave she had granted on 22 nd August 2020. 7. 18 Having set aside the decision on the application for review, it follows that the Ruling setting aside the supplementary bundle of documents has no leg to stand on. As a consequence, it must JlO suffer the same fate as the incompetent order refusing to review her earlier ruling. Subsequent to the above, the order of stay granted by the learned Judge falls away forthwith. 7.19 We remit the record to the High Court for the continued hearing of the case before the same Judge. 7.20 The net effect of our Judgment is that the appeal succeeds with costs to the Appellant to be taxed in default of agreement I~ ....................... ~ •.•...............•... M. J. SIAVWAPA JUDGE PRESIDENT ·-····· --~ F. M. CHISHIMBA COURT OF APPEAL JUDGE A. M. BANDA-BOBO COURT OF APPEAL JUDGE J11