Road Development Agency v James Muzyamba (CAZ APPEAL No. 65 OF 2019) [2019] ZMCA 430 (28 August 2019)

IN THE COURT OF APPEAL HOLDEN AT NDOLA (Civil J u risdiction) BETWEEN: CAZ APPEAL No. 65 OF 2019 ROAD DEVELOPMENT AGENCY APPELLANT AND JAMES MUZYAMBA <y \ ~ ESPONDENT CORAM: KONDOLO SC, MAKUNGU, CHISHIMB~ ~ /: l _ _,. / JA On 21 5 T August, 2019 and 28™ August, 2019 For the Appellant For the Respondent : Ms. M. Mukuka of Messrs Ellis & Co. : Mr. J. C. Mukende of M ess rs Kabesha and Company JUDGMENT KONDOLO SC, JA d eliver ed the Judgm ent CASES REFERRED TO: 1. Elias Tembo v Henry Sichembe and 2 Others Appeal No. 177 of 2014 2 . Water Wells L i mited V Wilson Samuel Jackson (1984) Z. R. 98 3. Stanley Mwambazi V Morester Farms Limited (1977) Z. R. 108 4. Rosemary Bwalya v ZANACO Appeal No. 133 of 2005 (SC) LEGISLATION REFERRE D TO : 1. The High Court Act, Chapter 27, Laws of Zambia Th is Appeal is agains t the High Court's r efusa l to set aside a Defau lt Judgm ent. Prior to the h earin g, t h e learned Muson a J h a d b een tr a nsfer red to Lusa ka a nd was m eant to travel back to Nd ola to conclude th e m a tter. When t h e m atter cam e up for continued h earing on 23 rd February, 2 0 18, t h e learned Judge J2 o f 7 as well as Counsel for the Respondent, travelled to Ndola but Counsel for the Appellant who had filed a Notice to Adjourn two day s prior to the scheduled hearing date was not in attendance. Unfortunately, neither the Court nor the Respondent were notified of the Notice and only became aware it on the date of hearing. The reasons advanced by the Appellant's Counsel for filing the notice, as contained in the Affidavit in support, were that Counsel with conduct of the matter, was appearing before Mwenda Jin the Commercial Division on the same date. The learned Musona J was not impressed with Counsel's conduct and in refusing to accept the Notice, stated that the mere filing in of a Notice to Adjourn did not automatically adjourn a matter and, it was thus incumbent on Counsel to present the application before the Court and leave it to the Court to consider and decide whether or not to grant an adjournment. The Court also commented on the fact that the Appellant had over 2 months' notice of the hearing date and the affidavit in support did not exhibit any proof that the matter before Mwenda J had indeed been scheduled earlier than that before h im. For these reasons, Musona J took great exception of the Appellant's absence and decided to proceed without hearing them, set a date for Judgment and, albeit, there being an incomplete Defence, proceeded to pass Judgment. Upon being aware that Judgment had been passed in its absence, the Appellant invoked Order XXXV Rule (3) (5) High Court Rules and applied to J3 of7 h ave the Judgment set aside on the grounds that it was not h eard. The Court rejected the application saying that a Notice to adjourn was no guarantee that th e Court would a djourn. It was simply a Notice that the applica nt would be a pplying for an adjournment wh en the m atter com es up; the Appella nt should h ave sent an agent. The Court further h eld that, even though the Applicant's Counsel stated t h at she was a ppearing before a nother Court, n o proof of th at was shown i.e. no copy of a Notice of h earing was attached a nd t h erefore no proof th at the case b efore Mwenda J was a djourned to that d ate earlier tha n the subject cas e, for it to be given preference. The Appellant h as assailed th e Ruling on three (3) Grounds of Appeal, n amely: 1. The learned trial Judge erred in law and in fact when he held that no good cause existed for him to set aside Judgment; 2. The learned trial Judge misdirected himself when he failed to consider the reasons put forward by the Appellant's Advocates for their failure to appear before the High Court, prepared to proceed with trial on 23rd February, 2018 in the event that an adjournment was refused. 3. The learned trial Judge misdirected himself when he ignored the long-established principle of the need for matters to be resolved on the merits despite the default of the parties. J4 of7 At the hearing, both Counsel relied on their filed Heads of Argument. In support of the Appeal, it was submitted that the trial Judge ought to have upheld the principal that matters should be heard on their merits. The case of Elias Tembo v Henry Sichembe and 2 Others 111 was called to a id. In that case, the Supreme Court upheld the principles in Water Wells v Jackson 121 and Mwambazi v Morester Farms 131 and stated that failure to attend Court should result in condemnation in costs. Further in Rosemary Bwalya v ZANACO 141 the Supreme Court stressed th e need for cases to come to trial wherever possible despite the default of the Parties so that all issues a re conclusively resolved. We were urged to set aside the Judgment. In responding to the arguments, Counsel for the Appellant, argued that the trial Judge was clothed with the power to proceed as he did under Order XXXV Rule 1 and 3 of the High Court Rules . The learned trial Judge rightly exercised his discretion and his refusal was justified because he was not satisfied with the reasons given for Counsel's absence. Under ground 2, it was argued that the lower Court carefully considered the application and this can be seen from his Ruling wherein he categorically stated the reason for the refusal. In ground 3 it was submitted that the Court did not ignore the principles of resolving matters on merit because the Record will show that it took into account the Appellant's evidence, notwithstanding it being incomplete. Citing the case of Elias Tembo v Henry Sichembe and 2 Others 111, Counsel argued that the Supreme Court stated that such Judgments obtained in the absence of the parties may be set JS of7 aside which m eant that it was a duty of the Cour t to exercise discretion upon a satisfactory excuse for the a bsen ce. We were begged to dismiss t h e a ppeal and, in the a lternative, urged to condemn the Appellant in costs to be paid forthwith, should we allow the Appeal. In reply, the Appellant re-emphasized its arguments stressing the fact that it was not h eard and as su ch this Court must set aside the Judgment. In relation to costs, it was submitted that each party bears its own costs as the Respondent failed to disclose any cir cumsta n ces taking the case outside the two cases of Rosemary v ZANACO 14 1 and Elias Tembo v Henry Sichembe and 2 Others 111 in which the Court, after holding th at matters be heard on m erit, ordered each party to bear their costs. We h ave considered the Record of Appeal and submissions of b oth Pa rties . The 3 grounds advanced boil down to only one issue; Wheth er or not the Court erred when it refused to set aside the Judgment obtained in the a bsence of the Appellant. We a re alive to the a uthorities that m a tter s must be h eard on their m erits and in fact th e case of Elias Tembo v Henry Sichembe and 2 Others 111 d ealt with t he absence of the Appellant at hearings. The Supreme Court in tha t case found that even though the trial Court was n ot satisfied with th e excuse given for the Appellant's absence, the failure should only have resulted in condemnation in costs, especially that there had not been a lot of adjournments by the Appellant. J6 of7 Reverting to the facts at hand, in our view, the trial Court cannot be faulted for his sentiments. Indeed, a Notice to adjourn is not an automatic adjournment but only a notification to the Court that on the day that the matter was scheduled to come up, an application for an adjournment will be made. In this case, Counsel stated that she was before another High Court Judge therefore she was not expected to attend to the h earing of the application, notwithstanding that another Counsel would have taken over the brief for purposes only of making the application to adjourn. If said application was denied, an appropriate application would have been made before the Court. The Court and the Respondent's Counsel travelled to Ndola from Lusaka to attend the h earing. Had the Notice been brought to the Court's attention earlier, the Court would not have moved. Further, the Court cannot be faulted for being dissatisfied with the reason given, i.e. attendance before a commercial division Judge. It is a fact that there was no notice of hearing, on record, issued by the other Judge. In the absence of any other evidence to satisfy the learned Judge, he denied the application for an adjournm ent. We certainly agree with his sentiments. However, given the fact that the Respondent had a lready launched its defence by calling a witness, the Court ought to have taken that fact into consideration J7 of7 and ensured that it concluded the trial. The Record shows that this was the first time, during the trial, that the Appellant was a bsent and for that reason, the Appellant at the least, ou ght to have been given th e benefit of doubt. We therefore find that the lower Court erred. The Judgment is hereby set aside and the matter sent back to the trial Judge for continuation of tria l. In line with the cited authorities, we make no order as to costs. The Appeal is dismissed. M. M. KONDOLO, SC COURT OF APPEAL JUDGE ............ ~ .... C. K. MAKUNGU COURT OF APPEAL JUDGE F . M. CHISHIMBA COURT OF APPEAL JUDGE