Tembo v Sichembe & Others (Appeal 177 of 2014) [2017] ZMSC 50 (12 June 2017)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO.177/2014 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: SCZ/8/141/2014 ELIAS TEMBO (Sued as Attorney for John APPELLANT AND HENRY SICHEMBE LUSAKA CITY COUNCIl; TABALENJI TEMBO 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT Coram: Hamaundu, Wood and Kaoma, JJS on 6th June, 2017 and the 12th June, 2017 For the Appellant: Mr. R. Mainza, Messrs Mainza and Company and Mr. J. M. Katolo, Messrs Milner Katolo and Associates For the 1st Respondent: Mr. N. Okware, Messrs Okware and Associates For the 2nd Respondent: Not present For the 3rd Respondent: Not present JUDGMENT HAMAUNDU,JS, delivered the Judgment of the Court Cases referred to: J2 1. Mwambazi v Morrester Farms Limited [1977] Z. R. 108 2. Attorney General v Marcus Kampumba Achiume [1983] Z. R. 1 3. Beatrice Kapasa Bwalya v Thomas Bwalya Appeal No. 24, of 2007 4. Zambia Revenue Authority v Jayesh Shah, [2001] Z. R. 60 5. RDS Investments Limited v Moon Jelly Ouseph Joseph SCZ Appeal No. 52 of 1998 6. Water Wells v Jackson [1984] Z. R. 98 Rules referred to: . 1. Order 35 rule 5 of the High Court Rules This appeal is against the refusal by the High Court to set aside a judgment which it had rendered after having heard the 1st respondent in the absence of the appellant and the other two respondents. We believe that the casual and rather reckless manner in which the appellant's advocates have over the years interchanged and misplaced the citation of the parties could have largely contributed to this appeal. To set the record straight, this matter started as a dispute between the 1st respondent and the 3rd respondent only. John Longa Mulutula quickly joined the matter and filed a defence. He went on to file his bundles of documents, after the process of discovery. It was then that Elias Tembo joined the action as attorney for John Longa Mulutula to defend the action on the latter's behalf. In the wrong citations that followed, Elias Tembo was now cited as the 1st defendant. J3 The party whom he represented, John Longa Mulutula, was cited as the 2nd defendant. The 3rd respondent herein, who was the 1st defendant, simply vanished from the citation. In this appeal, we now see an attempt by the appellant's advocates to set the record straight by going back to the position that Elias Tembo was, and still is, in this matter. Having set the record straight, we shall now go straight to the crux of the appeal. The events that gave rise to this appeal spanned three sittings of the court below. The record shows that on 25th April, 2012, the court sat for some sort of scheduling conference. It was during the period when Elias Tembo was wrongly cited as 1st defendant and John Longa Mulutula was cited as 2nd defendant. Elias Tembo and his advocates were not present. The court went ahead and set the trial date for 5th June, 2012. The record shows that on that date again Elias Tembo and his advocates were not present. However, it is important to note that, on this particular occasion, the 1st respondent's advocate explained to the learned judge that Elias Tembo's advocates were appearing before another judge. The 1st respondent's advocate went on to tell the judge that the 1st respondent was also unable to proceed with J4 the hearing because he was unwell. The court then adjourned the matter to the 17th July, 2012. When the matter came up for hearing on the 17th July, 2012, Elias Tembo and his advocates were not present. This time the 1st respondent's advocate brought to the attention of the judge, a letter which he had written to Elias Tembo's advocates informing them about the date of hearing. He also brought to the attention of the judge the letter of acknowledgement from Elias Tembo's advocates. The 1st respondent's advocates went on to say: ''they are not before court this afternoon and no reason has been furnishedfor their absence. In view of the fact that this is a very old matter and the plaintiff being before the court, it is our prayer that the court may proceed and hear the plaintiff." Then the court said: "The defendants have been consistently absent and despite being served by the plaintiffs advocates as demonstrated by the affidavit of service they have still failed to turn up in court today. The court therefore orders that the matter shall proceed." The court then proceeded to receIve evidence from the 1st respondent and then reserved the judgment to a later date. In its reserved judgment, the court below went on to give further reasons to justify why it had decided to proceed in the absence ofthe other parties. J5 One such reason was that Elias Tembo had not filed a defence and bundles of pleadings. Another reason was that the matter was very old arid several applications had been made over the years. The court went on to say that there had been a total disregard in defending this matter. The judgement, overall, was not in the appellant's favour. Attempts were made by the appellant to appeal against the judgement but resulted in a withdrawal of the appeal. The appellant then applied to the court below to set aside the judgment. Typical of the confusion that the appellant's advocates had created earlier, there was exhibited to the application a proposed defence and counter-claim. The court dismissed the application, this time relying on the case of Mwambazi v Morrester Farms Limited1 and imputing on the part of the appellant unreasonable delay, malafides and improper conduct. According to the court below, that is why it found nothing to compel it to treat the appellant favourably and allow another adjournment. Hence this appeal. The appellant has filed five grounds of appeal as follows: 1. The court below erred in law andfact when it refused to set aside the judgement that was entered in the absence of the appellant without due regard to the fact that matters must be determined on merit. J6 2. The court below erred in law and fact when it held that the defendant had failed to appear on two previous occasions when the record reflected that the adjournments on two occasions were. at the instance of the 1st respondent herein and that the 1st respondent had not effected service on the 2nd respondent. 3. The court below erred in law and fact when it disregarded a plethora of authorities from the Supreme Court which emphasize the need to hear both parties and arrive at a judgment on the merits by refusing to set aside a judgment that was entered in the absence of a party. 4. The court below fell into gross error when it refused to set aside judgment on the ground that the 1st defendant was aware of the hearing date when there were other parties to the action on whom there was no proof of service of the notice of hearing. 5. The court below erred in law and in fact when it refused to set aside judgment obtained in the absence of parties despite the existence of compelling grounds to warrant the setting aside of the judgment obtained in the absence of parties. These grounds raise only one question; was the appellant's conduct which compelled the court below to proceed in his absence such that the judgment cannot be set aside? We intend to consider the argument by the parties from that view point. The 1st respondent did not file heads of argument, having been of the view that his preliminary objection might dispose of this appeal. We, therefore, only heard arguments on behalf of the appellant. J7 The arguments on behalf of the appellant dwelt mainly on the learned judge's view that the appellant had been consistently absent despite being served with notices of hearing by the 1st respondent's advocates. To begin with, it was argued that this was an erroneous finding of fact made by the learned trial judge. After reproducing the record of proceedings on the three occasions that we have already set out, counsel for the appellant argued that the record revealed that, in fact, the adjournments were occasioned by the 1st respondent, through his advocates who had failed to notify all the defendants of the trial dates on 25th April, 2012 and 5th June, 2012. We were, therefore, urged to reverse that supposedly finding of fact on the usual authority of Attorney General v Marcus Kampumba Achiume2. On the same point, the appellant raised issue with the learned judge's rejection of his explanation that he personally was not aware of the trial date of 17th July, 2012 because his own advocates did not bring it to his attention. We were referred to an unreported case of Beatrice Kapasa Bwalya v Thomas Bwalya3, where the facts suggested that while the advocates were aware of the hearing date, they did not communicate it to their client. We held the view that a party should not be punished for the default of their advocates. On that authority, JS counsel argued that it was a misdirection by the learned judge to reject the appellant's explanation on the ground that the actions of the advocates should be imputed to their clients. Again, on the same point, the appellant raised issue with the fact that the court below completely ignored the fact that there were two other defendants who needed to be served with notices of hearing but were not served. These were Lusaka City Council and Tabalenji Tembo. Counsel submitted that the court below proceeded as if these two defendants had no right to be heard. It was argued that that point alone was sufficient ground to set aside the judgement. The other argument was based on Order 35 rule 5 of the High Court Rules which provides that any judgment obtained against a party in their absence may, on sufficient cause shown, be set aside. This time, counsel for the appellant recounted what had transpired on the record and demonstrated that in fact the appellant joined this action as attorney for John Longa Mulutula, who had already filed a defence and bundles of documents. It was argued that the effect was to substitute John Longa Mulutula with Elias Tembo. Consequently, it was argued, Elias Tembo was at liberty to adopt the defence and bundles of documents filed by John Longa Mulutula. Counsel further argued J9 that, in the circumstances, the 1st respondent will not be prejudiced in any way by the setting aside of the judgment. In support of those arguments we were referred to cases such as Zambia Revenue Authority v Jayesh Shah4 , where we said that cases should be decided on their substance and merit; and the case of RDS Investments Limited v Moon Jelly Ouseph Joseph5 , where we reiterated what we have said in a number of cases that any judgment not on the merits is liable to be set aside. The appellant went on to raIse Issue with the court below for saying that there had been a total disregard in defending the matter. Counsel pointed out that, to the contrary, it was the 1st respondent's action which had been dismissed for want of prosecution in 2010. With those arguments, we were urged to allow the appeal. We have said earlier that the question really is whether the appellant's conduct which prompted the court below to proceed in his absence is such that the judgment rendered in his absence should not be set aside. First, however, we hasten to observe that not all the reasons that the learned judge has used to justify his decision to proceed in the absence of the appellant were revealed at once. Instead, they were revealed piecemeal; in the judgment rendered and the rulings JIO of the subsequent applications that the appellant made to the court. We wish to state that when a trial court decides to proceed in the absence of a party, all the reasons for its decision must be revealed on the record, there and then. The court should not give reasons in subsequent applications as if they are after-thoughts meant to justify its refusal to set aside the default judgment. Coming to the main issue, we have held in a number of cases, such as those cited by the appellant, that a judgment that is obtained in the absence of a party may be liable to set aside. We have again held on numerous occasions that when dealing with applications to set aside such a judgment, the overriding concern is that matters should be decided on their substance and merit. We said for example in RDS Investments Limited v Moon Jelly, Ouseph JosephS that hearing a matter on the merits means that both sides must be heard. In this case, the only reason that the court below revealed for its decision to proceed in the absence of the appellant and his co- defendants was that they had been consistently absent and that they had failed to appear on the 17th July, 2012 even after being served with the hearing date. This matter had been handled by several judges previously. The current judge only started handling it from the 25th April, 2012. As we }11 have shown, the judge sat only three times. The first sitting was merely some sort of scheduling conference. The appellant was not present but this did not affect the purpose of the sitting, as the court still gave directions and set a trial date. At the second sitting, the appellant was again absent. However, this time the absence of the appellant's advocate was satisfactorily explained. In fact, even the 1st respondent was reported to have been unwell and unable to proceed with trial. Therefore, the failure to proceed on the second sitting cannot be solely attributed to the appellant. It is on the third sitting, when the court decided to proceed, that the appellant and his advocates were absent without any explanation. When one reads the record of proceedings before previous judges, one does not see any consistent absence by the appellant. In fact, as counsel for the appellant submitted, at one point the appellant had obtained an order, dismissing the 1st respondent's action for want of prosecution. The current judge even dealt with that issue at the scheduling conference where he ordered the appellant to either make a fresh application or proceed with trial on 5th June, 2012. Therefore, the only substantial default by the appellant was his absence on the 17th July, 2012. We do not think that that default alone is sufficient to earn the appellant the tag of a persistent absentee; or ]12 for the court below to say that there had been total disregard in defending the action. In fact, we think that some of the reasons that the court below gave to justify the step it took were influenced by the confusion that was created by the wrong citation of the parties; Elias Tembo in particular. Had the court below taken care to study the record and set it straight, the way we have done, it would have discovered that Elias Tembo was in this action as attorney for John Longa Mulutula, who had already filed a defence and bundles of documents. It would consequently not have said that the appellant had not filed a defence and bundles of pleadings; a statement which appears to have influenced its view that there had been total disregard in defending the action. In the circumstances, we are of the view that the default of the th July, 2012 did not justify the conduct which the court below imputed of the appellant. . Hence, even though the court below subsequently rejected the explanation by the appellant for his failure to attend court on the 17th July, 2012, that should only have resulted in the condemnation of the appellant in costs, as we have stated in numerous cases such as Water Wells v Jackson6 and Mwambazi v Morrester Farmsl. J13 Therefore, we allow this appeal. We set aside the judgement of the court below and order that trial on the merits be held. At this point we wish to address a side issue. We are aware, as a result of the preliminary motion that we heard, that the appellant has made partial payment in fulfilment of the judgment. By setting aside the judgment we have not made an order for the immediate refund of the amount paid so far. The sum shall remain paid until the conclusion of this whole action. The final outcome of the case will determine the fate of the money paid so far. Each party shall bear their own costs of this appeal. However, the appellant still remains condemned in costs of the unsuccessful application that he made in the court below to set aside judgment. Wij"- ----=:~. ", ,',' ~U ' ~,"..-... . ............................. "--.- E. M. HAMAUNDU . SUPREME COURT JUDGE A. ..... OD . SUPREME COURT JUDGE _O<.:Y C? c:::::::::: ~.o ~ / '";";-;-;-'''''''.".! . R. M. C. KAOMA ! SUPREME COURT JUDGE