Evans Lupiya Chilweza and Eight Ors v Zambia Railways Limited (2000/HL/31) [2003] ZMHC 1 (28 February 2003)

IN THE H1GH COURT FOR ZAMBIA AT THE LIVINGSTONE DISTRICT REGISTRY (CNIL JURISDICTION) HOLDEN AT LIVlNGSTONE BETWEEN: EV ANS LUPIY A CHIL WEZA AND EIGHT OTHERS AND 2000/HL/31 PLAINTIFF ZAMBIA RAILWAYS LIMITED DEFENDANT Before Honourable Justice Mr. M . S. Mwanamwambwa this 28th day of February, 2003 For the Plaintiffs M r. A. R. Chipande - Livingstone Partners For the D efendant Miss I Suba of Kuta Chambers RULING Cases referred to : MWAMBAZIV MORESTER FARMS LfMITED 1977 Z. R. 108 '- This is an application by the Defendant to adduce further evidence. The Defendant closed its defence on 9th July 2002. This application was filed on 23rd October 2003. In effect, the Defendant is trying to re-open the matter some 2½ months after it had closed its case. The record shows that this matter was instituted on 23rd May 2000. The case underwent full pleadings. On 12th October 2001 trial started. On that date, the 1st Plaintiff gave evidence on his own behalf and on behalf of the other 8 Plaintiffs. Before trial started Mr. Chipande told the court that the 1st Plaintiff would be the only witness to give evidence on behalf of himself and the other 8 Plaintiffs. He took the move because the evidence for the other 8 was the same. He was cross-examined at lengthy by Mr. Singine and Miss Sub a, who were then jointly defending the Defendant. At 13 :02 Hours on that date, the matter was adjourned to 18th and 19th December 2201, for continued cross examination. On 18th December 2001, Miss Suba who then appeared for the Defendant alone, resumed cross examination of the Plaintiff. On the same date the Plaintiffs closed their case. On the same date the 1st and 2nd witness for the Defendant gave evidence. Initially, counsel for the Defendant had told the court that these 2 were the only witnesses the Defendant would call. At the end of evidence for the second defence witness, Miss Suba applied for an adjournment to a later date, other than 19th December 2001. She said that the move was necessary to enable her call some more witnesses from the Union and Management. These new witnesses were to come from Kabwe. She added that she did not call these in advance because she thought that all the 8 Plaintiffs would give evidence up to 18th .._ December 2001 . Mr. Chipande strongly objected to the application for an adjournment. He pointed out that at the start of hearing he had intimated that only the 1st Plaintiff would give evidence for the entire group. He also pointed out that at the previous hearing, the matter was given 2 dates; 18th and 19th December 2001 because one of the reasons given was that the Defence witnesses were to come from Kabwe. He added that this matter involves conditions of service for the Plaintiffs before their retrenchment. Therefore, the defence should have anticipated in advance that the witnesses being referred to would be required to testify. He urged the court to call for submissions. The court agreed with the observantions by Mr. Chipande. The court stressed that with proper planning and preparation, it would have been easy for the defence, after hearing and partly cross examining the 1st Plaintiff, to determine in advance what kind of evidence and witness to call. However, in the interest of justice, the court reluctantly .... adjourned the matter to 3rd and 4th April 2002. To disapprove of the conduct of the defence, the court ordered costs against the Defendant. On 3rd April 2002, the 3rd Defence witness was called. During his evidence in chief, there was a hitch. This was at a stage when the witness was trying verbally, to reproduce the contents of a circular that was not produced. The circular was reported to be in Kabwe. The court drew the attention of the defence to the principle in Band P. v The People 1979 Z. R. 202. The principle prohibits verbal reproduction of the contents of a document that is not produced. It then transpired that infact the Defence never prepared the list of documents. The court observed that in a matter that is as contentions as this, there ought to have been full discovery and inspection of documents. On 4th April 2002, at the end of evidence for the 4th Defence witness, Miss Snba said and I quote : " The need has ariseJl'to call one more witness to give evidence as to whether /I,...,, some of these Plaintiffs were not paid their Long Service allowance. In the event we agree on as to who was not paid, then we will notify the court that the Defendants have closed their case. In which case we will proceed with written submissions." "Mr. Chipande I consent to the above Court : The Defence allege that some Plaintiffs were paid their long service allowance. This very allegation arose at the earlier sitting. If it is true then I do not see any problem. Such a payment would involve documents. So it is very easy for the Defendant to produce documents of such payment. So I order the parties and their Advocates meet and discuss the issue. In the events they agree as to who was paid, then they may make the necessary amendments to the pleadings by consent. In fact this issue should have been discussed and sorted out a long time ago. In the event of agreement, hearing would be deemed to have closed and the matter would proceed to submissions. The matter is tentatively adjourned to 9th July 2002, at 9:00 Hours. M. S. Mwanamwambwa JUDGE." On 9th July, 2002, the matter came up. Miss Suba never attended court and there was no explanation for her absence. Mr. Chipande attended court and said that since the last sitting on 4th April 2002, there was no discussion between him and her over the alleged payments of benefits. Thereafter, the court said : "I take it that counsel for the Defendant has dispensed with the further witness and that she has closed her case. Accordingly, I order that the parties file written submissions. The Plaintiffs shall file theirs with in 2 weeks from the date hereof. The Defendant shall file its within 2 weeks from the date of receipt of the Plaintiff : Judgment will be delivered on a date to be notified. M. S. Mwanamwambwa JUDGE." There is on record a letter from the Plaintiffs Advocates to the Defendants Advocates which reads as follows: " 9/0712002 Messrs Kuta Chambers Suites 512-514 5th Floor, New Wing Musi O Tunya House LIVINGSTONE. Dear M adam, Re : EVANS LUPIYA CIDLWEZA AND OTHER vs ZAMBIA RAILWAYS LTD. We refer to the matter in heading and to our letters dated 24/04/2002 and 31/05/2002 wherein we infonned you of the names of the Plaintiffs and their number of years as regards their claim for non payment of the long service allowance. We regret to note that to date we have had no response from yourse lves as to whether or not your clients dispute this claim as directed by the Court, so that we may proceed to the next stage in these proceedings. Please note that in the event that we do not hear from yourselves within the next seven (7) days as to your clients position we shall treat this as an adm ission on lhe part of your clients that indeed they owe our clients the long service allowance and then proceed to file our submissions as per the Judges directive. Yours faithfully, LIVINGSTONE PARTNERS Per : AR CHIPANDE CC: The Marshall, Hon. Justice M. S . Mwanamwamba's Chambers Judiciary Department LIVINGSTONE." On 11th July 2002, the Court Marshal wrote to the Defendant's Advocates as follows: "11 th July, 2002 Messrs Kuta Chambers Suites 512 - 5145th Floor New Wing Mosi-O-Tunya House LIVINGSTONE Dear Madam, Re: EVANS CHILWEZAAND OTHE RS vs ZAMB IA RAILWAYS LIMJTED . I refer to the matter in heading. On the 4th day of Ap1il, 2002 you made an application to add one more witness for the defendants to give evidence as to whether some of the plaintiffs were not paid their long service award and tentatively the matter was adjourned to the 9th July, 2002. Regretably on the 9th July you did not attend court and as a result of this, the court bas taken it that you closed your case. As per Judge's directives you are informed to proceed to file your submissions. Yours faithfully, C. N. Sitali MARSHAL TO JUSTICE M. S. MWANAMWANIBWA CC: Livingstone Partners Mosi-O-Tunya Road Old Civic Centre Building LIVINGSTONE." On 30th August 2002, the Plaintiffs filed their submissions. "On 14th October 2002, the Defendant's Advocates wrote the Court Marshal as follows: 14th October, 2002 The Deputy Assistant Registrar High Court P. O. BOX 60110 LIVINGSTONE ATT: MR. SITALI Dear Sir, RE: EV ANS CIDLWEZA & 8 OTHERS vs ZAMBIA RAILWAYS LIMITED: 2000/HL/31 We refer to the above matter and hereby request the Honourable Court to give us extension of time within which to file Submission up to Friday this week. Yours faithfully, Per./ ... (signed) .. KUT A CllAMBERS" On 23th October 2002 the Defendant's Advocates filed an application to adduce further evidence. This is the very evidence that was mentioned at the last sitting on 4th April 2002. The Affidavit in support reads as follows: " AFFIDAVIT lN SUPPORT OF SUMMONS TO ADDUCE FURTHER EVIDENCE SECTION 27 AS READ WITH ORDER 5 r. 10 CAP 27:- I ROBERT MAHACHI make oath and say as follows:- 1. THAT my full names are ROBERT MAHACHf. 2. THAT I am a Zambian by nationality 3. THAT I reside at House No. 21 Njoko Road, Livingstone 4. THAT I am employed as a Senior Human Resource Officer for the Defendant Company at its Livingstone Office by virtue of which I have authority to swear to this my Affidavit from matters within my own personal knowledge and belief. 5. THAT the Honourable Court has received evidence from both the Plaintiffs and the Defendants herein. 6. THAT the Plaintiffs have infact filed their Final Submissions but the Defendants are yet to file their Submissions. 7. THAT the court has not delivered it's judgement in the dispute. 8. THAT the Defendants have since discovered documentary evidence showing Payments made to the Plaintiffs which fonn part of the Plaintiffs Statement of Claim. 9. THAT it is desirable that the Honourable Court is accessed with all the available and including evidence that has come to light during the cause of the adjournment. 10. THAT we pray for the indulgence of this Honourable Court to re-open the Defence and admit such very vital evidence for which without such evidence put on record this Honourable Court will not dispense the justice of this cause. 11. THAT unless this Honourable Court grants this Application to call further evidence the Defendants will be prejudiced in that the Honourable Court will not have received all the available evidence in the dispute. 12. THAT the contents of this my affidavit are trne and correct to the best of my knowledge and belief. SWORN by the said ROBERT MAHACHI This ...... day of .......... 2002 AT LIVINGSSTONE (signed) DEPONENT " BEFORE ME ........................................ . COMMISSIONER FOR OATHS On 23.10.02 the court instructed the Marshal to set hearing of the Defendant's application for 28.11.02. He was also told to inform the Advocates on both sides to file written submissions on the application. This was meant to avoid protracted Verbal arguments. He did so on 29 10.02. On 28th November 2002, at 8:30 hours, the matter came up for hearing. The court record shows as follows:- "28/ 11/02 At 8.30 Hrs, In Chambers Before: M. S. Mwanamwambwa Judge For the Plaintiffs Mr. E. Chilweza in Person For the Defendant No appearance (later Miss Suba arrived at 8.40 hrs) Mr. Chilweza: Mr. Chimpande is out of town. He has told me to request to the Court to proceed with the application as per affidavit. Court: (talks to Miss Suba): I instructed the Marshal to tell you to file written submissions on this application. He did so by a letter dated 29/10/02. Why have you not done so? I also note that you came in at 8 .40 hrs, ten minutes late. Miss Suba: I was under the impression that the letter of 29/10/02 referred to main submissions on trial. Court: I do not accept that explanation because it is the earlier letter of 11/7 /02 which tells you to file written submissions on the trial case. The letter of 29/10/02 specifically refers to your Chamber application of 23/10/02 returnable today. I do not have time to attend to your verbal arguments because at 9: 00 hours, I have a trial in open court. I don't want your application to eat into the trial time. I repeat my earlier order that submissions be in writing. Later I shall make a reserved writing. M. S. Mwanamwabwa JUDGE At 8.50 hrs 28/11/02 On 6th December 2002, counsel for the Defendant finally filed written submissions on the application. For precision and ease ofreference these are wholly quoted verbatim below:- " DEFENDANT'S SUBMISSIONS IF IT MAY PLEASE HIS LORD, WE WISH TO SUBMIT AS FOLLOWS: The Plaintiffs in their Statement of Claim under particulars as head (vii) claim as follows:- Payment of salary appraisal for the period commencing 1 /08/98 to 28/09/2000 at 37% of the Plaintiff's salaries as at time of separation. To this end, the Defendants maintain both in their viva voca evidence and the Defence that the Plaintiffs who are unionized members of staff were not entitled to unionized members. They further maintain that performance appraisals were paid to management staff but not the Plaintiffs. As a result of this, the court ordered that the two Parties meet and agree on which ones of the Plaintiffs were paid and which ones were not. As the term salary appraisal has the connotation of salary increment the documents now sought to be produced are pay slips showing earnings, allowances and deductions covering the period 1998 to October, 1999 which period is the material this, the court ordered that the two Parties meet and agree on which ones of the Plaintiffs were paid and which ones were not. As the term salary appraisal has the connotation of salary increment the documents now sought to be produced are pay slips showing earnings, allowances and deductions covering the period 1998 to October, 1999 which period is the material period in relation to this inquiry. This st is in respect to each and every one of the nine Plaintiffs except that in the case of the 1 Plaintiff, there is a letter dated 23 rd August, 2000 advising him to collect his under payment on retrenchment package. It is settled Law My Lord that to allow one person to be paid twice for the same claim amounts to unjustified self enrichment. It is with piece in mind that we pray that the evidence contained in the pay slips be admitted on record to assist the court arrive at the correct quantum, if at all, to be awarded in this cause. The contents of the pay slips will not take the Defendants by surprise as they were supplied these through their Advocates about two weeks ago and at any rate they are merely copies of what documents the Plaintiffs have received before during the course of their employment. We pray that these be admitted with leave of the court record. Dated this 6 th day of December 2002. DRAWN BY ........................................... . MESSRS KUTA CHAMBERS SUITE 512-514 Sm FLOOR, NEW WrNG MUSI-O- TUNY A HOUSE P. O. BOX 61078 LIVINGSTON ADVOCATES FOR THE DEFENDANTS TO: MESSRS LIVINGSTONE PARTNERS OLD CIVIC CENTRE BUILDING MUSI-O- TUNY A ROAD P. O. BOX 60858 LIVINGSTONE ADVOCATES FOR THE PLAINTIFFS." Counsel for the Plaintiffs did not submit. I have deliberately given a detailed account above to show exactly what happened in this case. A leeding case on defaults is MWAMBAZI v MORESTER FARMS LTD (1 ). It states : (ii) "It is the practice in dealing with bonafide interlocutory application for courts to allow triable issues to come trial despite the defaults of the parties; where a party is in default he maybe ordered to pay costs, but it is not in the interest of justice to deny him the right to have his case heard" (iii) "For this favourable treatment to be afforded, there must be no un reasonable delay, malafides and no improper conduct on the part of the applicant" Granting the Defendant's application will entail re-opening hearing of this matter, which has been dragging on since 12.10.02. Between 12.10.01 and 4.04.02, there was enough time for the Defendant and its Advocates either to produce the documents in question to the court or to discuss and solve the alleged payments with the Plaintiffs and their Advocates. The allegations of payments were repeatedly raised by the Defendants through out proceedings. No reasonable explanation has been given by the Defendant and its counsel for this default. In particular, on 4.4.2002, counsel for the Defendant made an express under taking in court, to do the task in question. She did not stand by her word. Further, when the matter came up on 7. l l.2002, she never attended court and there was no explanation for her absence. I consider the delay by the Defendant in this matter un reasonable. l also consider the conduct of the Defendant and its counsel improper. For these reasons, I refuse to re-open hearing and dismiss the application with costs to the Plaintiffs. 1 wish to add that by this conduct the Defendant and its counsel are either guilty of inexcusable laxity or are deliberately attempting to buy time and delay the matter. Which ever is the case, the result to the same: This kind of conduct is irresponsible and totally unacceptable. Leave to appeal is hereby granted. Delivered at Lusaka this 28th day of February 2003. 13