Development Bank of Zambia and Anor v Christopher Mwanza and Ors (SCZ/8/ 103/08) [2012] ZMSC 117 (30 November 2012)

IN THE SDPREM HOLDEN AT Lus!~DR'I' OF ZAMBIA SCZ/8/ 103/08 CHRISTOPHER MWANZA & . OTHERS RESPONDENTS CORAM: MAMBILIMA, DCJ, MWANAMWAMBWA AND CHIBOMBA, JJS On 19th May 2010 and 30th November 2012 For the Applicants: For the Respondents: v£.c. ZULU, of Malambo & Co Mr. F. H. HAMAKANDO, of Batoka Chambers MAMBILIMA, DCJ delivered the Judgment of the Court. JUDGMENT ~UTHORITIES REFERRED TO 1. MASAKA VS THE PEOPLE (1-972) ZR 9 !&GISLATION REFERR ED TO· . , UPRElYIE COURT, C,AP 25 OF THE LAWS OF ZAMBIA I 1. RULES OF THE iouRT ACT, CAP 25/ 0F THE LAWS OF ZAMBIA 2. THE SUPREME · . I I • .l By _t{9t1c_~_ · .. --- -'-- ~ ...__- of Motion. tak~n J. Jnd~L Rule_-4.8.(4.) of THE- RULES . . OF' THE SUPREME co·URT1 , as read with SECTION 4(B) OF THE SUPREME COtJRT Order that th R , ACT . the 1st Applicant has applied for an e Uhng by a single Judge of the Court, that was delivered on 14th M ay 2008, be reversed so that the Applicants may be granted leave to appea against the JUdgment of the Industrial . . . Relations Court (I R . · . C.) given on 29th July 2003 and that if the said leave will be granted, the heru;-ing should be considered. as an appeal itself. The application has been brought on the ground that there was a miscarriage of justice in the-Court below and the judgment that was entered on 29th July 2003 ought to be set aside. An affidavit in .support of the Motion was sworn by one, Andrew MUSUKWA. He describes himself as the Bank Secretary/Legal Counsel of the 1st Applicant. In the said affidavit, he deposed inter alia that on 29th July 2003, a judgment wa-s entered against the ' . Applicants herein, together with DE-GARNIER HOLDINGS (POLYPACKERS) AND LAWRENCE MVULA, who were the 1st and ' I • i I ,· • I 4th Respon en d ts respectively in the court below. . d' tisfi.ed with the judgment in default, the Applicants Bemg issa f Appeal to the Supreme Court on 19th August 2003. . . . fi iled a Notice 0 . · · 1' he said Notice s . JU.dgment as e · tated that the app~al was " .... against the who le d cides that judgment in defaU:lt be entered for the Resp0 ftd ·~ ents th redundant w·th According to M at they be deemed to have been declared effect from 22nd October 1999 with interest.:'' r. MUSUKWA, the Respondents applied before Justice CHITENGI ' to have the matter dismissed for want of prosecution but b ' Y consent, the appeal was withdrawn. An Order to that effect s · d b . · igne Y Just~ce CHITENGI on 28th January, 2004, states:- "It f,· d .::. ~r ere d . that the Appellants withdraw the appeal and the Respondent discontinue the application to dismiss the matter for w·ant of prosecution." After t his withdrawal, the parties .then wept back to the I. R. C.where the Applicants applied to set aside the default judgment. Mr. MUSUKWA deposed that the application to set aside was set for 31 st March 2005 but it was struck out due to non attendance. It would appear that the application to se~ aside ·the default t. judgment of 2003 was reinstated because it was again set down for I . h eanng on 12th October 2005. None of the •parties attended Court . Prompting an a dJ'ournment to 21 st October 2005. Again, there was no appearance by the parties and the Court adjourned the matter to . 31 st October, Q05 On 31 s t October, the parties did not appear. · 'l'\ J. Qe Court then s trUCk out the matter and gave an 'Unless Order' to the effect that 1 .f the matter was not restored within 14 days, it will The matter was never restored. It stood stand dis"h-\ 1 · ... .._.1. ssect. dismis sect. It was not until J leave to appeal out anuary, _2006, that the Applicants sought . of time against the 'Unless Order' made .by the Court on 31st O t b c O er 2005. The application was heard ·by the Chairman of the Court. He ~ismissed it on the ground that power to grant leave to appeal to the Supreme Court out of time against Orders of the I. R. C. was .vested in the Supreme Court. On 2 nd May 2006, th.e Applicants filed a Notice of Appeal to the Supreme Court against the entire Ruling of the Chairman. The appeal was listed before this Court on 15th April 20.08, but it was again withdrawn by Counsel for the Applicants on account that it was improperly before the Court. Mr. MUSUKWA· deposed that .following the withdraw~ of the appe al f rom t he full Court, the Appellants now applied before a · • d single Ju ge 10 · · r. r leave to appeal out of time against the judgment of th e I. R. C. given l\,r J.viay 2008. H... '-1.te full Court. · is exhibite d to . in July 2003, which application was refused .on 14th · Th Appellant has now renewed its application before e A proposed record _of appeal has been prepared and th affidavit in support of the Motion. According to e Mr. MUSlJI{W A , the Ap r for leave to ap P icants now want to have their application . Peal to the Supreme Court heard de novo. He stated that the Appl· icants have a good case . because they are not responsible to pay the Respondents'· terminal benefits since they were not the em 1 P oyer; and that if this application is not allowed? . the Applicants ·u wi suffer gre9:t injustice. / In the written submissions that have been filed before this Court,. Counsel for the Applicants has proposed that if this Court i~ inclined to grant the Order for leave as requested, then the hearing of the application for leave to appeal out of time _should be treated as the hearing of the appeal itself and consequently, be allowed ancl the judgment of the lower Court set aside. · According to Counsel, the treating of the hearing of an application for leave to appeal as -~ _ hearing of the actual · appeal has been employed in a number 9:f . . al cr1m1n cas es that have been decided in our jurisdiction. He I contend~d that although the authorities that the Applicants were relying on re a te to criminal matters, the procedure is applicable even in civil ma . . . tters. He cited a number of decisions, one . of w1::i,ich · is the case 0 f IVIASAKA VS THE PEOPLE1 in which GARDNER J. A. stated: "I Would ap I pea , allow . Sub grant th e application the appeal and rn1tting furth . application to and consider this hearing as the hearing of the, quash the conviction and set aside the sentence." er, Counsel stated that in arguing the · vary the Ruling ·of the single Judge, it would be necessary to del . ve into the proposed grounds of appeal as set out in th e proposed recor ct of appeal. That the position of the law is that no appeal can lie from an int~rlocutory order or judgment of a High Court Judge or the I. R. C. unless leave is ·granted by the lower Court I , . ·, and if refused; by a single Judge -of this Court. That in this case, leave to . appeal was refused by the Chairman of the Industrial Relations Court in the Ruling delivered on the 31 st March 2006. A subsequent application was made to a single Judge of the Supreme Court who on 14th May 2008, also· refused the application. , . . Counsel submitted that on the authority of SECTION 4(B) OF THE ,,.. SUPREME COURT ACT2 ,\ , the 1st Applicant has now brought this app ea on li . ti before the full Court. Section 4(b) of the Supreme Court A et that as h been ref erred to allows the Supreme Court to reverse or vary a eel d •sion of a single Judge. _ TrLlJ contended that the exercise of the power granted to Mr. Zv · the Supreme court under Section· 4(b) of the Act is entirely in the . discretion o f the court. That for the Court to properly exercise this discretion ' . it exercise the p :must b e presented with material upon which to ower and th' 18 material is found in the consideration of the merits of th · e grounds of appeal which the 1st Applicant intends to rely on should . it be granted the Order sought. The Respondent has filed an affidavit in opposition to the Motion, sworn b Y one Mr. F:i;-ed Hamuzwe Maambo HAMAKANDO, Counsel, who has the conduct .of this matter on behalf of the Respondent. Mr. HA;t\t!AKANDO deposed in his affidavit that under RULES 48(4) AND 49 (a) OF THE SUPREME COURT RULES 1 as read with SECTION 4(B) OF THE SUPREME COURT ACT2 , any party aggrieved by the decision of a single Judge of the Court, who desires to have such decision varied, discharged · or reversed, shall apply to the full bench by Notice of Motion wit_hin 30 days. That a single Judge of the Court in this case, did on 14th May 2008 refuse t o grant ea ve to the Applicants to appeal against the judgment 6f the I._R. C that was given in July 2003. That the Applicants only ~ ' ~ . N ti' e of Motion to appeal against the Ruling of the single filed their o c . Judge on 8 th December 2008, showing a delay of more than six . 11lonths. That the delay or failure to file the Notice of Motion within the prescribe . d time is inordinate. Mr. BAMAKA. NDo . . . of Motion out f deposed further that the frhng of the Notice . time without leave of Court was to frustrate the Respondents' S ummons of Assessment of · Damages which was pending before th e LR. C. He urged this Court to dismiss the Motion on the ground that it has no merit, is frivolous and vexatious and · ' ls an abuse of .the process of the Court. We have considered the Motion before us and the submissions of Counsel. It is common cause that the Applicants have been before this Court twice before. Before CHITENGI, JS, the Appeal was withdrawn after an application by the Respondent to ·have the matter dismissed for want of prosecution. In April 2008, the appeal was withdrawn before the fun.· Court on account that it was improperly before the Court. The Applicants then went back to the I R C . ~ . . Wl 'than application to set aside the default judgment but the Chairman ruled against them, prompting an application before a . single Judge 0 f this Court. The single Judge refused the . . account of inordinate delay. The single Judge found application on . the handling of the matter by the Applicants lacked that if anything, . d was an abuse of the process of the Court. . seriousness an Counsel h as renewed th' Or er that th e 1st A . l' d . against the jud . ls application before us to seek an PP icant should be granted leave to appeal gment of the I. R. C. that was given in July 2003. Mr. HAMAKANno fi ' or th . e Respondents, has pointed out that it took the Applicants more th . an six months to contest the Ruling of the single · judge. shows I I< 'l He -submitted that this delay was inordinate. Our record that the Motion was first set down for hearing by the full Court on 20th May 2009. It was struck out with liberty to restore due to non attendance by the parties. Upon restoration, it was heard by the Court on 19th May 2010. The 1st Applicant has proposed that in considering this application, we should delve into the merits of the case and hear the appeal just as is the practice in criminal matters. As conceded ,.r y ounse, b C 1 such a procedure has never been invoked in civil matters. The reason for that is clear. The preparation -of a case in the hands of the liti2:ants as opposed to a ~ · · civil litigation is in criminal case where an accuseq. · person or convicted person on appeal does no t prepare the record. He or she is at the mercy of Prosecutors, Counsel. DJ-... the prison authorities and sometimes, the defence And, in rnost cases, the liberty of the individual is at stake. It Would h 13,ro<?~d.ure could b be . :clear as we d ... ave to be i · n a very e:Xceptional case~~ that such a ,· . e adopted in civil matters. For reasons that will eal · · · Wlth the issues in . this case this case .does not . .. ·- . .. . • · . . . . ' . · · .. , pr-esen t such exce . . . _ptional circumstances:{ . . ... . ,, .. , This cas . e was commenced in the I. R. C. in 1999. The events on the mana gement of the c~se by the Applicants from the I. R. C. ~ right up to this Court show total disregard of Court hearings, inordinate delay and vandalism of Court Rules. As observed by the single Judge, when judgment in default was entered in July 2003, an appeal against this judgment was lodged on 19th August 2008. An Order for Stay of Execution pending appeal was given on 9th Oclober 2003. When the matter came before a single Judge on 28th . . June 2004, the appeal was withdrawn whereupon the Applicants \; went back to the lower Court to set aside the judgrnent in default. Th ey con en t ded that they had a defence on merit. On ·1 st March 2005, an application to set aside the default . JUdgment e· b fore the I. R. C. was struck out due to non attendance. I t was broug ht ·back in October 2005 and set down for 12th October . ... 2005. On . date it was adjourned to 21 st October 2005, because 1s ' th none of the P arties attended Court. On 21 st October 2005, the matter was . parties attend d Yet again ct· a Journed to 31st October. None of the e C~urt on that day either. The Court struck out the application and gave an 'Unless Order' that if the matter was not · restored within 14 days, the application would stand dismissed~ The 14 days ela d - pse and the matter stood dismissed. ;Really; J1o_V\{/ serioi;t.s is 'i:i :litigant who fil .. . . . . . · ••• ) · •• · • t ·t~i i . e~ ·-:Process 1n ourt gp(: .. iqrge~s a . o.u 1 .·t . . . C ..... d "' b .r ' , ,, \ It was only in January 2006 that the Applicants came back to Court to seek leave to appeal against the 'U~less ·order' of 31 st October .2005. The Court refused that application on the -ground that it lacked jurisdiction and that such an application must be made in the Supreme Court. The Applicants appealed to the Supre:me Court and the matter came before the full Court in April 2008. The Applicants had to withdraw the appeal because no leave r' · of the lower Court had been obtained before the filing of the appeal. \' Th e App c re used · e f li ants now made the application before a single Judge who th application on the ground that there was too much art of the Applicant and the period of delay was too · th P e laxity on long. Even ° · t contest the Ruling of the single Judge, it had to take n1ore thax1 s1.fl. .;-Q' inonths for the l s t App1icant to re11;ew its application befor e th e fun Court. delay after del We have not b any merit. w Clearly, this case has been characterized by ay and extreme laxity. een persuaded to find that this application has e agree with the single Judge .. that there has been too much delay. So much water has gone under the bridge and tile first Applicant has t h.b. . no ex 1 1~ed any seriousness in prosecuting t e · · h case. lt is in the . pul?l.ic .interest tq._at t _here should be finality .t9 l·t·· 1 1ga ion. In ·our view; it:tv:6ct)·tj.:n9t·.l?~ -in. the public interes,t-:~p i$.iU9\:~~;~: t' . ai1 Appli9ant who has oeen w~nd~t_ing in _tl?-e .corridors of th~ 9oµJ. J.t and is .guilty of so ,nuch delay ~d. l~ity ·to hold other -litigants Jn .( s.uspe nse when they ought to have · -dqne the needful at ·the -: right time,. For this reason, this application is refused with costs to the Respondent. .. I , I I. C. Mambilima DEPUTY CHIEF JUSTICE ' . 'ttE:X). ~ ... ='-"°=='="~~:::::-~-- ~~~~~ ~~~~~A~'-~-H. Chibomba 'C ~ PR SUPREME COURT JUDGE . 12