Dominic Chola Mulaisho and Anor v Development Bank of Zambia and Ors (APPEAL NO. 181/2016) [2019] ZMSC 376 (8 August 2019)

J 1 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 181/2016 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: DOMINIC CHOLA MULAISHO KALULUZI INVESTMENTS ........... .. 1 ST APPELLANT 2ND APPELLANT AND DEVELOPMENT BANK OF ZAMBIA 1 ST RESPONDENT SIPHO PHIRI (Sued in his capacity as Joint Receiver of Kaunga Investments Limited) 2 nd RESPONDENT WILLIAM KABEMBA (Sued in his capacity As Joint Receiver of Kaunga Investments Limited) 3 rd RESPONDENT ANNABEL FLOWERS LIMITED 4 th RESPONDENT Coram: Hamaundu, Malila and Kaoma, JJS On 25 th July, 2019 and 8 th August, 2019 For the Appellants : Mr S. S. Zulu, SC, Messrs Zulu & Company For the 1st respondents: Mr L. Linyama, Messrs Eric Silwamba, Jalasi and Linyama Legal Practitioners (Action discontinued) For the 3 rd respondent: For the 4 th respondent: Mr M. Ndalameta, Messrs Musa Dudhia & Company JUDGMENT HAMAUNDU, JS, delivered the Judgment of the Court J 2 Cases referred to: 1. Ruth Nkumbi and Robinson Kaleb Zulu (2009) ZR 183 2. Re Jokai Holdings Ltd (1993) 1 All ER 630 3. D. E. Nkhuwa v Lusaka Tyre Services ( 1977) ZR 43 4. Twampane Mining Co-operative Society Limited v E and M Storti Mining Limited (2011) 3 ZR 67 This appeal is against the refusal by the High Court presided over by Mulongoti, J, (as the learned judge then was), to grant the appellants an extension of time to restore their action to the active cause-list. The appellants commenced this action in 2002. There is unchallenged contention on record by the appellants that trial had started, with the 1st appellant giving his testimony and closing the case for the appellants. It is not in dispute that at some point, around 2007, the case record went missing; and when it resurfaced, the notes on the appellants' testimony had gone missing: thereby necessitating the holding of a trial de nova. This led to the 1st appellant writing a letter of complaint to the Judicial Complaints authority against the judge that was handling the matter. Again, it was not in dispute that between 2009 and 2011, the case stagnated on account of the retirement of the judges that had handled the J 3 matter. This led the 1st appellant to seek the intervention of the Chief Justice. The latter responded to the 1st appellant on 12th April, 2011, giving him assurance that the matter had been re-allocated to another judge and would now be handled expeditiously. In June, 2012, Chashi, J, to whom the matter was eventually re-allocated, set a date for 21 st June, 2012. It is unclear whether the date was for trial or status conference. None of the parties appeared. The learned judge then struck the matter off the cause list and ordered that it be restored within 30 days, failing which it would stand dismissed for want of prosecution. In September, 2013, the appellants filed a notice of intention to proceed. At a status conference held for that purpose, before Kondolo, J, (as he then was), the parties were informed of the "unless order" which Chashi, J, had made in 2012. The appellants then applied for extension of time to comply with the order for restoration. That is the application which was heard by Mulongoti, J. In her ruling of 15th July, 2016 Mulongoti, J, reviewed authorities on the subject. She acknowledged that under Order 3/5/9 of the Rules of the Supreme Court (White Book) the court still J4 retains the power to extend the time to comply with an "unless order" which has not been complied with; and that this position was confirmed by this court in the case of Ruth Kumbi and Robinson Kaleb Zulu111 . She, however, also noted the caution with which the court must exercise the discretion to extend the time. The learned judge further noted, from the case of Re Jokai Holdings Ltd12 1, that one of the relevant considerations to take into account is whether the failure is intentional and contumelious. The judge went on to look at our decision in D. E. Nkhuwa v Lusaka Tyre Servicesl3 1 where we said that the most important factor is the length of time. Finally, the learned judge looked at our decision in Twampane Mining Co operative Society Limited v E and M Storti Mining Limited14 1 where we placed emphasis on adherence to the rules of court; and also said that the court is at large to look into the merits of the case. Applying the principles in those cases to the facts of this case, the learned judge found that over one year had elapsed from the time that the matter stood dismissed to the time that the appellants came to court to resuscitate it. In the judge's view, the delay was very inordinate and inexcusable. The judge dismissed the argument by counsel for the appellants that his clients had not been made aware that the matter had been struck out. The judge said that she was not J 5 persuaded by that contention because the appellants were responsible for the conduct of their case and knew that they were not represented during the period that Messrs Zulu & Co had ceased representing them. The judge also noted that the appellants had approached their case with laxity, going by the fact that fourteen years had passed without the case being concluded. On those grounds the learned judge refused to extend the time. The appellants came to this court on nine grounds of appeal. At the hearing, all the three counsel agreed that their clients had not been aware of Chashi, J's "unless order" until they were told by Kondolo, J. When we asked counsel for the respondents why they were opposing the appeal, given the circumstances surrounding the "unless order", Mr Linyama for the 1st respondent expressed lack of enthusiasm to continue opposing the appeal. He, however, submitted that, in the circumstances, if we do allow the appeal, the parties should bear their own costs. Mr Ndalameta, for the 4 th respondent, did eventually agree that perhaps there is merit in the appeal. In view of that turn of events, we shall cut to the chase. The holding by the Court of Appeal in England in the case of Re Jokai Tea Holdings Ltd12l which the court below looked at applies to the J 6 situation in this case. The Court of Appeal said that the relevant question is whether such failure is intentional and contumelious. The court went on to say that, if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and, therefore, does not disentitle the litigant to rights which he would otherwise have enjoyed. We have stated that, at some point, the case record in this case went missing. We have also said that, as at 2011, the 1st appellant had sought the intervention of the Chief Justice concerning the delays of two of his matters. The judge's notes show that when the matter was before Chashi, J, on 21 st June, 2012, none of the parties was present before him. The notes also show that Chashi J, merely noted the absence of the parties then proceeded to strike out the matter and make the ((unless order" in issue. There is no indication that Chashi, J, satisfied himself that the parties had been notified of the hearing date. What followed thereafter is also very significant. There is no indication on record that a formal order was drawn and signed by Chashi, J. This is the order that would then have been served on the parties; so that, even if they had not attended the hearing, they would have become aware of what had happened in J 7 their absence, and reacted accordingly. That the parties were unaware of the "unless order" is confirmed by the fact that, as of 31 st May, 2013 almost a year after the order had been made, the 4th respondent was in communication with the Chief Justice concerning the record which the 4 th respondent thought was still missing. The 4 th respondent would not have taken that route had it been aware that in fact there was in existence an order which had dismissed the appellants' case. So, one cannot even begin to say that there was contumelious disregard of Chashi, J's order, or that there was inordinate delay in applying to extend the expired period when the appellants were not even aware of the order's existence. The court below said that the appellants should have been following up their case. Presumably, the court was saying that, by so doing, the appellants would have become aware of the order in good time. Our view is that the appellants had played their part. They had complained to the Chief Justice, who assured them that their matter had been allocated to another Judge. All they were waiting for was notification from the court as to the date of status conference or hearing. That is why Chashi, J, should have satisfied himself that the · ~ ~ =::~) before proceeding to . . .... , ,. . : . · . . c ,1:. ;J-:>al. To save time, we ~-~-.-~:1~~~·3 ~ ~ . , .. :-~:gh Court be restored, r _:s means that the . ' p lace lS hereby .. , . · .. ·~ _ - -· :: -:i. 4:h.e determination of the trial. Each )a:•'.::y wij b· . ., .. 4 ' . : . :T· ; ·•· ~ ">Sts in this appeal and in the a pplication D, .. Jo--c ~t...t~ . -- .. '-'· · ... :st 1s the su bject of this appeal. ~ , ~ -:-· -· .... .::.--- . .-, - .4.("""..,t.,. • - ...... GE C G..,