Victor Zimba v Elias Tembo and Ors (APPEAL 26/2016; CAZ/8/055/2016) [2017] ZMCA 492 (7 September 2017)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL 26/2016 CAZ/8/055/2016 BETWEEN: VICTOR ZIMBA AND ELIAS TEMBO LUSAKA CITY COUNCIL THE COMMISSIONER OF LANDS - 7 SEP 20'7 APPELLANT 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT CORAM: CHISANGA JP, MULONGOTI and SICHINGA, JJA On 11 th April 2017, 14th May and 7 th Septembe r 2 01 7. For the Appellant: Mr. N. Sampa of Norman Sampa Advocates For the 15Wespondent: .,.>_ · Mr. R. Mainza oj,. M essrs Mainza &_;,. Company .for' the-=-{i!td~es1wnde;,_t:·:.:.~ ;:-<N//2 ::;_-=.,){ :;---- .:_-=.~ --:---- For the 3rd Respondent: N/ A CHISANGA, JP delivered the Judgment of the Court JUDGMENT Cases cited: 1. Allan vs Sir Alfred McAlpine and Sons Limited, (1968) ALL ER 543 2. Zulu vs Avondale Housing Project Limited (1982) ZR 172 3. Mccredie vs McGraddie (2013) 1 WLR 2477 4 . Royal Bank of Canada vs Jones (2000) 3C SC 520 5. Averback vs Kafwatu Appeal No 65 of (2000) 6. Jamas Milling Company Limited vs Imex International Limited (2002), ZR, 79 J1 7. Swift Cargo Services Limited vs Lake Petroleum Limited SCZ/8/349/2015. 8. Zulu vs Avondale Housing Project Limited (1982) Z. R . 172 9. Birkette vs James (1977) 2 All ER 801 at 804 10. Allen vs McAlpine (1968) 1 All ER 543 11. Kearney and Company Limited vs Agip (Z) Limited and Asphalt and Tarmal 1985 ZR P 7. This appeal attacks the judgment of the court below, wherein the learned judge dismissed the matter for inordinate delay on the plaintiffs part. The plaintiff a ppeals against that decision on grounds we will state b elow. The circumstances giving rise to the appeal are these. The plaintiff commenced ~ -. JI,._. --~ . the action .. ag_ainst the . .. . . · , ) { . ~~ • .,.,..., ~ -> ~ -r • .,,.. possession of Stand No. 24596 Liba la South Lusaka pursuant to Order 113 -r -r .,,.. ·· - - - - defenq~(-by originc).ting f~mmons, for s11'trtmary .:_; ¢': '- """•: . .:_.; ,){. --:""-!-.-: : .~-;¢." •'x . . . Rules of the Supreme Court ( 1999) edition. That originating process was amended, by Order of the Cou rt, and a Writ of Summons issued as a result. By that amendment, the plaintiff was now asking for a declaration that he was the legal and registered owner of Stand No. 24596 Lusaka, an Order to eject the defendant from that property, an injunction restraining the 1st defendant from developing, interfering and trespassing on any portion of Stand No. 24596 Lusaka, as well as damages for th e expense and inconvenience suffered by him as a result of the 1st defendant's continued occupation , d evelopment and interference with the said stand. J2 The 1st defendant, now 1st respondent, filed a defence in which h e averred that he was the first offeree of S ta nd Number 24596 Lusaka from the Commissioner of Lands. He paid th e service ch arges, and at the time of accepting the offer , did not know that there was another offeree. Of importan ce to t his a ppeal, is the order m entioned above, issued by Hon. Mr. Justice Mwanamwa mbwa J, as h e then was, by con sen t of the parties. By that order, the originating process was to be amend ed from originating summons to writ of summons, a nd the Commissioner of La nds and th e Lusaka City Council were to b e joined to the proceedings. It was a lso ordered that t he m atter be set down for trial on 11th and 12th Septemb er 2007 at 09:00 h ours, and th at the _parties file th e pleadings and everything else that was required before th e trial . F-' ~ - - ~ -. ~ -. ~ -- The record reveals tha t the pla intiffs a dvocates served the amended process on the 1st defendant's advocates as well as th e plaintiff's bundle of d ocumen ts on 4th September 2007 . Apparently, a t ria l was not conducted on the stated dates, and a lmos t four years later, an order to dismiss the action for want of prosecution pursuant to Order 25 rule 1(4) Rules of the Supreme Court (1999) was made by the learned d eputy registrar. It appears the plaintiff was obliviou s to this state of affairs, until the order of dismissal was brought to h is a dvocates' attention at a status J3 conference by Hamaundu J , as h e then was, to whom the m atter had been allocated following the elevation of Mwa namwambwa J to the Supreme Court. The plaintiff thus a pplied for leave to appeal against the Order of the learned deputy registrar out of time, and the learn ed judge acceded to that application. The plaintiff a ppealed accordingly, and the matter was heard by another j udge, Hamaundu J having moved to the Supreme Court by th en. The appeal against the order of the deputy registrar fell on h a rd ground. In determining the application, the learned judge referred to the power to dismiss an action for want of prosecution, conferred by Order 3/5/ 12 Rules of the Supreme Court, and noted that that power was to be resorted to sparingly, as it ,e._<;ieprived a party j_( his or h er right;? trial. The most _WPOrta n t consid<J~tion in , .::_;,~{ ·J;reciding ~hctNer.)o -dismiss' an"-act)rn-, the . learneol; ~g~ .$ tated, ·Was ~betb,er ther e was a d efence to an action. She went on to observe that in terms of Order 2 Rule 3, of the High Court Rules, a party who d esires to proceed is required to give one month notice to the opposing party of his intention to proceed in a matter or cau se in which ther e h ave b een no proceedings for one year from the last proceedings. The learned judge n oted tha t th er e was evidence on record th a t the plaintiff was served with the a pplication to dis miss action for want of prosecution through his lawyers, Messr s Mumba Malila and Partners. The judge thus h ad J4 -~--~ .... - ..::-::-w ~ --. difficulty appreciating why the plaintiff did not attend court then. She referred to Allan vs Sir Alfred McAlpine and Sons Limited1 , where the Court of Appeal held that when delay in the conduct of an action is inordinate, inexcusable and there is a substantial risk that a fair trial will no longer be possible, the court may dismiss an action. The learned judge was of the view that there had been inordinate delay in prosecuting the matter. She opined that althou gh the plaintiff had stated that the file was not accessible for some time, it was nonetheless encumbent on him to press for the hearing of the matter. In the judge's view, there was a likelihood that justice would not be done in the matter at that stage due to the ~ -_inordinate dela:y-~~y the plaintiff. S}5 dismissed the :£peal as a result.~ -. The appellant assails the decision of the court below on the following grounds. We must state that the grounds of appeal are long-winded and contain statements that are unnecessary. We have endeavoured to state the gist of the grounds on which it is proposed to impugn the judgment of the court below. 1. The court failed to appreciate that there is no law that obliges a plaintiff to press for a date of hearing when the court record cannot be located. 2. The honourable judge erred in law and fact by disregarding the fact that the matter had long been set for trial, and that the pleadings had closed, but the trial had not taken off because the court record had gone m issing. JS 3. The court erred in failing to appreciate that the delay to prosecu te the m a tter was excusable, as it was on accoun t of the failure by the court to locate the record, and issu e dates for trial. 4. The judge erred in failing to hold that the matter was never r eferred to the d eputy registrar for determination by the High Court judge that had conduct of the matter. 5. The learned judge erred m failing to appreciate that the plaintiff h ad a meritorious case that required to be hea rd on its merits. 6 . The learned judge misdirected herself both in law and fact by awarding costs against the appellant. The a.,pellant's ~rgumelilts as stated in ~ -h eads of argum@+i.t a r e that he du~· .- -::.~,~ -- ~--=..: . ,· -:.~ .. p --~<. . complied with the directions given by Mwanamwambwa J, as h e then was. He .- ,:;'l{ -~-: ~ ,. -~~'\,){' -·~~ . - .- .:_.-;~ ~~~ :· amended the statement of claim, and served the plaintiff's bundles on the 1st defendant's advocates, who h a d equally filed in a d efence. The m a tter, which had been set for trial on 11 th and 12th September 2002, could not be tried as his lordship had been elevated to the Supreme Court. The matter was allocated to Ha maundu J, but the record went missing. When it resurfaced, there was an Order to dismiss the action for wa nt of prosecution, to the appellant's shock. The a ppellant applied for leave to appeal against the order of dis missal, and ruling on the said application was rendered two years later. There was therefore no inordinate delay in prosecuting the a ppeal. J6 It is the appellant's further contention that, after a dhering to the directives of Mwanamwambwa J, no further steps were required to be taken by the plaintiff. That the Order dismissing the matter was made exparte, as revealed by the Order itself. The summons was filed on 8 th February 2011 and the Order obtained on the same date, as admitted by the 1st respondent. It was learned counsel's further argument that Order XIX High Court Rules CAP 27 confers power on the trial judge to conduct matters in the High Court, and not the deputy registrar. No Order was made by the trial judge, to confer jurisdiction on the deputy registrar to hear the matter when the trial judge still had conduct of the matter. demonstrated in the pleadings and documents. He claimed he had title to the property in question. Therefore the appellant deserved to be heard on that claim. It was further a r gued that had the court properly considered the matter, it would not have awarded costs to the respondent. We were urged to allow the appeal. In opposing the appeal, it was a rgued, in the respondent's h eads of argument, that the lower court made a finding of fact that there was inordinate delay by the p laintiff in prosecuting the matter. According to learned counsel, that finding could only be reversed on appeal if it was established that the finding J7 was plainly wrong or arrived at in the absence of relevant evidence or on a misapprehension of facts . Zulu vs Avondale Housing Project Limited2 was referred to for this argument. It was further argued that there was an affidavit of service on record, showing that the application was duly served on the appellant's advocates on 8 th February 2011 and duly acknowledged. The plaintiff thus had an opportunity to challenge the application for dismissal at the hearing before the deputy registrar but did not attend the same. Learned counsel equally referred to Mc Graddie vs Mc Graddie3 as stating when an appellate court could interfere with a judge's conclusions on primary facts. Order XXX:l of the High Court rules had been made by the plaintiff. And in terms of Order XXX:1 rule 2 High Court Rules, a party is at liberty to apply for dismissal of action for want of prosecution if the plaintiff fails to set the matter down for trial. It was further argued that the rule provides that the application for dismissal for want of prosecution could be made either to the court or a judge. It was further contended that "court" is defined as the High Court. It was therefore incorrect to argue that the application to dismiss action for want of prosecution should not have been filed before the Deputy Registrar. Learned J8 counsel referred to Royal Bank of Canada vs Jones4 where the court reportedly stated that once the defendant has established that the delay complained of has been inordinate and inexcusable, a rebuttable presumption of prejudice arises. Further, that a court hearing a want of prosecution application must dismiss the action for want of prosecution unless the plaintiff establishes on a balance of probabilities that the defendant has not suffered prejudice or that other circumstances would make it unjust to terminate the action. Thu s the defendant need only establish that there has been inordinate delay. It was pointed out that the action was commenced in 2006 and five years pas~_ci before an applji._ation for dismis~l for want of pr'?>-.ecution was file~n - . t h e deputy registrar. That no record of any steps having been taken appears in the record prior to the application to dismiss, nor did the appellant seek authority to proceed by way of a temporary jacket. Reference was made to Averback vs Kafwatu5 where the Supreme Court reportedly held that litigants defaulted at their own peril since any rights available as of course to a non defaulter are usually jeopardized. It was further submitted that the rights of the respondent were jeopardized due to the appellant's failure to prosecute the matter for five years, and this prompted the application to dismiss the action for want of prosecution. There J9 h ad been an injunction in place which was only discharged after dismissal of the action. That Order of injunction was seriously prejudicial to the 1st respondent. Refer ence was m a de to Jamas Milling Company Limited vs Imex International Limited6 in that respect. It was a dditiona lly argued that the pur p orted exparte summons a nd suppor ting affidavit to d ismiss action for want of prosecution as well as the proceedings wer e n ot part of the record. This, according to counsel has prejudiced the 1st respondent, and warra n t s dis m issal of th e appeal in line with Swift Cargo Services Limited vs Lake Petroleum Limited7 . We were u rged to dismiss the a ppeal. by the a ppellant's advocates. They argued that Zulu vs Avondale Housing Project Limited8 cited by the 1st Respondent supported the app ellants' pos ition, as the judge in t h e court below misapprehended t h e facts. It was their further argument that th ere was n o need for a request to set the matter down for trial to be m a d e, as th e court h ad already done so. Therefore, the conten tion that the pla intiff failed to attend the hearing of the a pplication to dismiss was totally misconceived, as the 1st respondent was h eard exparte. To compound matters, the order to dismiss was not served on the a ppellant. JlO It was learned counsel's further submission that the appeal was a rehearing and all the affidavits filed before the judge in chambers were part of the record. At the hearing Mr. Sampa, informed the court that the a ppellant was relying on th e heads of argum ents. He expla ined how the matter moved in the court below, emphasizing that the appellant was not required to take any further steps, th e matter h aving been set down for hearing. We will not repeat his arguments as we have already stated them. Mr. Mainza equ a lly echoed his a rguments, to the effect that the appellant was guilty of inordinate delay in prosecuting the matter. We h ave recited h is other arguments above, and need not repeat th em. th e grounds are interrelated, we will deal with them at th e same time. Contrary to Mr. Sampa's submission, th e Order to dismiss action for want of prosecution pursuant to Order 25 rule 1 (i) Rules of the Supreme Court ( 1999) edition was signed on the 14th day of February 2 011 , as shown by the date stamp affixed by the Registrar who signed the said Order. We however note that the defendant was h eard exparte. Mr. Mainza's argument t h at the appellant neglected to attend court when th e a pplication to dismiss was heard is thu s unsustainable, as it was heard exparte. Jll Mr. Sa mpa's argument th a t th e judge m a d e n o Order r eferring the m atter to the Deputy Regis trar is equa lly d evoid of m erit . This is b ecau s e Order XXXI High Court Rules provides , in sub rule 2 of rule 2 tha t wher e the plaintiff d oes not, within the p eriod fixed under sub rule (1) s et the action d own for tria l, the defendant may set t h e a ction down for trial or m ay a pply to t h e court or a judge to dis m is s th e action for wa n t of prosecu tion, a nd on the h earing of a n y su ch a pplication, th e court or a judge m ay order t h e action to b e dis missed a ccordingly or m ay m a k e su ch other order s as the cou rt or a judge m ay deem just. "Court" is defined as the High Court. Ther efore, as the d eputy regist rar sits in the High Cj:1rt, h e is captur1-_ by th a t definitiop_ .. Mr. S a m pa's ~r~ment is as a .,,>._· _ r e sult tln-su~i~able . ~ 0: : .~ . ~ :;x.. . .; =o~ -,:~ : -~"",){ ·;:< · -:~~ -,;:=~ . An a ppeal from a decision of a r egistra r to a judge at ch a mber is a r eh earing. The judge exercise s unfettered d iscretion in the m atter, and m ay even receive additiona l affidavit eviden ce when considering s u ch a n a ppeal. Mr. Mainza argues that the proceedings before the registrar a r e n ot p art of the r ecord, and we s hould as a result dismiss it, as this h as prejudiced the 1st res p on den t. Our view is th at t his argu m ent is misconceived. This is b ecau se a n appeal from a r egis tra r to a judge in chambers is an en tirely fresh application. The ju dge exer cises h is own discretion . Auth ority for this view is Kearney and Company Limited vs Agip (Z) Limited and Asphalt and Tarmal11 . J12 It was therefore sufficient to include proceedings before the learned judge, whose decision is appealed against. We are unable to discern what prejudice could possibly be inflicted on the 1st respondent by the omission of the proceedings before the registrar. The question that arose before the learned trial judge, and falling for determination in this appeal, is whether the appellant was guilty of inordinate delay in prosecuting the matter, warranting dismissal. It should be borne in mind that in determining such an application, a trial judge exercises discretion. This is on account of the fact that the court balances against one another a variety of relevant considerations. substitute its own "discretion" for that of the judge merely because its members would themselves have regarded the balance as tipped against the way in which he had decided the matter. The appellate court's function is thus primarily one of review, and a judge's decision should only be reversed in cases where the appellate court is satisfied that the judge has erred in principle by giving weight to something which he ought not to have taken into account or by failing to give weight to something which he ought to have taken into account or, in order to promote consistency in the exercise of discretion by the judges as a whole where there appear, in closely comparable circumstances, to be two conflicting schools of judicial opinion as to the relative weight to be given to J13 particular considerations. See Lord Diplock's exposition m Birkette vs James9 • The jurisdiction to dismiss a n action for dilatory conduct is inherent. Allen vs Mc Alpine10 lays down the principles on which this juris diction is to be exercised. It will be exercised only where the court is satisfied: 1. That the d efault h as b een intention a l and contumelious, for example dis obedience to a peremptory order of the court or conduct a mounting to a n abuse of the process of the court or 2. (a) th at there has been inordinate and inexcusable delay on th e part of the plaintiffs or his lawyers and - (b) ~ -- -~~~ --~-: :- ..,,,, - that ~ ch _delay _ will givt:· rise to a substdntial r isk that i:to:"-is not ,. possible to h ave a fair trial o(the issues in·'''the actfon or is such as .:::._~ '\)[ - ~A: :- -~'; ~ -.:..~ti( • . .:_;_,~ -•~ .:_~ ~ 1(. • 1(. • . ,,. - ~~ ,. - . ,.. . 1s likely to cause or to have caused senous prejudice to th e defendants either a s between themselves and the plaintiff or between each other or between them a nd a third party. Birkette vs James supra, establishes that where a pla intiff h as let his action go to sleep and it is dismissed as a result, t h e court would h ave no power to prevent him from starting a fresh action within the limita tion period and proceeding with it with a ll proper diligence notwithstanding that his previous action h a d b een dismissed for want of prosecution. J14 It is only in instances where a plaintiffs action has been dismissed for disobedience to a peremptory order providing for dismissal on failure to comply with th a t order, that a defendant wou ld successfully apply for dismissal of the second action commen ced during the curren ce of t he lim itation period. This is because failure to obey a p eremptory order amounts to intentional and contumelious conduct, warranting dismissal of the second action for abuse of process. It is equally settled tha t it is wron g exercise of discretion for a court to treat as 'inordinate delay' the la pse of time which is less than the limitation period within which the Statute of Limitations allows a plaintiff to start that action. Jhe fact that th~_limitation perioq,._h as not yet exp_xed is a matter ilf· great ~ .::=. .• ~ ~;ight in detl ~i~g . wheth~/lcr-' e~tt:se the . dii~te~t/ te dis~i~ ~t~on for want of p rosecution where no question of contum elious default on the part of th e p laintiff is involved. Turning to the present appeal, the con sent order of the parties, sign ed by Mwanamwambwa J as h e th en was, fixed the dates of trial. The matter , which h ad begun by way of originating summons, was to be h eard on th e stated dates. Before then , the parties were to file the requisite bundles of pleadings and documents . JlS Ordinarily, when an action is commen ced by writ of s ummons , Orders for Directions are issued by the judge seized with the matter. Upon complying with the Orders, the pla intiff r equests that the action be set down for tr ial. The judge accordingly issues notices of hearing to the parties. Once this is done, but a n action is not tried on the stated date, the plaintiff does not make further requests to set th e matter down for trial. The t rial judge will instead issue fresh notices of h earing, d epending of course on the reason leading to failure to conduct trial on the dates that were earlier assigned to hearing of th e matter. It is said the learned judge m ade a finding of fact, and r ecourse is m ade to principles tha t inform the decision of an a ppellate court to interfere with a ..>finding of fact gj_-a trial court. IJa_-seems to us t~t Mr. Mainza d>3-ws n o ~ .:_-;¢' ~fst.irrction .. b~tWe~ ~atter s ,. tif~f a~ tevealed oiii~0~r~cord·, ~cli-n:d1;gs- of . ~ -~~ fact m ade by a trial judge a fter receipt of conflicting versions of a n incident. It will b e observed that the finding of fact th at will not be interfered with is one made on contested evidence. The rationale is that the trial court would have h a d the advantage of seeing and hearing the witnesses and observing their d emeanor. An appellate court on t h e other hand deals with the cold r ecord of the eviden ce and gen erally does not, in matters wher e resolution depends on credibility, h ave the means of assessing w ho is to be believed. In th e present case, the learned judge was not called upon to decide who she was to believe, based on credibility. Her determination of the appeal was J16 dependent on whether or not the appellant had inordinately delayed in prosecuting this matter, a nd she so found , not upon electing who to believe, but purely on the ground that the appellant had not pushe d for a date of trial. It is thus misconceived to refer to ina pplicable principles in e xamining the learn ed judge's views on the matter. It is our considered view that Mwanamwambwa J , having admitted the matter to tria l by the stated dates b y consent of the parties, all the appellant was required to do was to file the requisite bundles of pleadings a nd documents before the date of trial. There was no need to file a request to set the matter down for trial as that h a d already been done. We thus perceive n o inordinate _,..._and inex~usa ble_,....sielay on the p a~ · of the appellanja_ · The action hawg been ,:;:; ,~ ~s~igned ;o "[~~f:by t~"e con~e~t~rder: the a;pe1Iin~as-not r~qiri~&to :·take .;-:,,~: further steps in that connection. That being the case, it is misconceived to advert to considerations whether prejudice has been inflicted on the 1st respondent or not, and the appellant bears no burden to show the absence of prejudice. The argument that the appellant defaulted a t his own peril does not also prevail. There was no default in prosecuting the cla im, as the a ppe llant did his part. It remained for the court to issue a fresh date of trial. It is a ppa rent that the learned judge considered the explanat ion that the record went missing, but nonethe less held the view that the a ppellant should h ave pressed for a d ate of J17 hearing. We note that a notice of hearing is issued on the record, and t h e trial itself is required to b e recorded on the record. It would not be practical to obtain a date of hearing in the absence of the record. Although, as stated above, it is unnecessary on the facts of this case to consider whether prejudice has been inflicted on the 1st respondent, we nonetheless wish to observe that resolution of this matter does not depend on the fadin g memories of witnesses. This is because the dispute relates to a llocation of the same piece of land to the appellant and the 1st respondent by those mandated to do so. The allocations were not orally made, bu t in writing. No difficulty would be put in the way of the 1st resp ondent as a resu lt. ,.._. -;:~ On th~_foregoing, this aweal succeeds. Tl,x-Order of dismis_>?-1 rendered in th)i_· ~o~rf~ln~ set ~asfdi; -~-"'a:·the ·ca~~ ';~Wii'1te~:-~O' the ~i~'t-~ t-for trial b~ fBr"~~ : another j udge . Each party will bear own costs both in the court below and in th is court. . ..................... ~ .............. . F. M. CHISANGA JUDGE PRESIDENT COURT OF APPEAL · · · -~1lt ...... COURT OF APPEAL JUDGE .. . . . . . . . . . . . . .. COURT . ............ . ~ INGA AL JUDGE J18