Tembo and Anor v Moomba (CAZ 8 14 of 2016) [2017] ZMCA 151 (29 March 2017)

IN THE COURT OF APPEAL FOR ZAMBIA CAZ/8/14/2016 AT THE LUSAKA DISTRICT REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ALICK TEMBO DAINESS TEMBO AND 2ndAPPELLANT JOSEPHINE MOOMBA RESPONDENT Coram: Makungu, Chashi and Mulongoti J. J. A On 26th January, 2017 and 29th March, 2017 A . F-ozJhe Appellap.^r-JJr. J. M Chim@jQb.&.. QfMessrs. JflQ dissociates for the Respondent? Mr. M. C. Hamacfila of Messrs. IverfMulenga & Co 'r A A A A JUDGMENT C. K. MAKUNGU, JA delivered the Judgment of the Court. Cases referred to: 1. Jamas Milling Company Limited v. Imex International (Pty) Limited 2. Zambia Revenue Authority v. Hitech Trading Company (2001) ZR 21 3. Ladd v. Marshall (1954) C. A 745 4. Lisulo v. Lisulo (1998) ZR 75 5. Kangwa Simpasa and Yu Huizhen v. Lackson Mwabi Mwanza SCZ 13/21/2012 (unreported) Legislation re ferred to: 1. The High Court Act, Chapter 27 of the Laws of Zambia - Order 39 rules 1 and 2 This is an appeal against a ruling of the lower court dated 4/05/2016 dismissing the appellant’s application for review of the court’s earlier judgment dated 29/06/2015. The reasons for refusal were that there were no grounds to enable the Judge review her judgment and that the appellant had not shown that the fresh evidence existed at the time the judgment was made. The back ground to this case is that the respondent brought an action against the appellant in the Subordinate Court for the determination of the rightful owner of the house at plot No. 1097 J^aunda Square* stage two, Lusaka which she*had purchase^.from tfne Nelly Phiri Cfh 4th April, 2*004. The Subordinate Court field'that the respondent was the legal owner of that property as she was a bonfide purchaser for value without notice of any adverse interest. On appeal, the learned High Court Judge without holding a re - trial, upheld the decision of the Subordinate Court and dismissed the appeal for lack of merit in a judgment passed on 29th June, 2015. It was entirely within the Judge’s powers to determine the appeal without trying the matter denovo (afresh). -J2- On 4th December, 2015, the appellants made an application pursuant to order 39 rules 1 and 2 of the High Court Rules before the High Court Judge together with an affidavit in support sworn by the lst appellant. The gist of that affidavit was that on 2nd February, 1995 the Lusaka Urban District Council offered the appellant’s father one Mr. Jacob Tembo, the plot in issue. Annexed to the affidavit as exhibit ATI was a photocopy of the provisional offer of the same plot made to Jacob Tembo on the said date by the Lusaka Urban District Council Social Secretary’s Department - Peri Urban Section. The affidavit further gives the reasons why the said evidence was not adduced in the Subordinate Count and the HighA Court as follows: “5 (i) when my father died on 1st October, 1998, my mother who was illiterate did not keep valuable documents for the plot 1097 Kaunda Square in a safe place and upon my mother’s death in February, 2003, I and my siblings had no idea of the whereabouts of any documents for this plot. (ii) I only discovered my late father’s offer of plot 1097 aforementioned after this court heard and determined this matter when I was checking in a disused box..... ” The respondent filed an affidavit in opposition on 18th December, 2015 to the effect that the alleged fresh evidence was not availed to -J3- the court. Further that the appellant’s conduct amounts to forum shopping and an abuse of court process aimed at denying the respondent the fruits of the judgment. We must say, this was in the same vein as the Ruling appealed against. The appellant has raised one ground of appeal as follows: “The court below erred both in fact and law by dismissing an application to review her judgment without considering fresh evidence adduced in the affidavit filed by the appellants on 4th December, 2015.” Both?advocates filec^ Heads of Arguments which theygrelied onwherl* **’ ■ 'J-- ; the appeal was heard. According to the said heads of arguments, the appellant’s advocate submitted that the exhibited letter of offer is fresh evidence which would have an important influence on the outcome of the case. He cited Order 39 rules 1 and 2 of the High Court Rules which provide as follows: “39 (1) Any Judge may, upon such grounds as he shall consider sufficient, review any judgment or decision given by him (except where either party shall have obtained leave to appeal, and such -J4- appeal is not withdrawn) and, upon such review, it shall be lawful for him to open and rehear the case wholly or in part, and to take fresh evidence, and to reverse, vary or confirm his previous Judgment or decision: Provided that where the Judge seized of the matter has since died or ceased to have jurisdiction for any reason, another Judge may review the matter. (2) Any application for review of any Judgment or decision ruling must be made not later than fourteen days after such judgment or decision. After the expiration of fourteen days, an application for review shall pot be admitted, except - by special leqve.of the Judge^on suchtefw&asseem just.” He also relied on the case of Jamas Milling Company Limited v. Imex international I1) where it was held that: “For review under order 39(2) of the High Court Rules to be available the party seeking it must show that he has discovered fresh material evidence which would have material effect upon the decision of the court and has been discovered since the decision, but it could not with reasonable diligence have been -J5- discovered before.... The evidence must have existed at the time of the decision, but had not been before.” He went on to say that in the affidavit in support the appellants have given reasons why the letter of offer was not tendered in evidence in the Subordinate Court and the High Court. He further submitted that the case of Ladd v. Marshall is instructive on this issue. It says in order to justify the reception of fresh evidence, three conditions must be fulfilled. Firstly, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. Secondly the evidence must be such that, if given, • > ■ > > >' > it, would probably have an important influence on the result of the case, although it need not be decisive. Thirdly the evidence must be such as is probably to be believed, or in other words it must be apparently credible although it need not be incontrovertible. To further support the appeal, he relied on the case of Zambia Revenue Authority v. Hitech Trading Company (2) where the Supreme Court had this to say: “We have no difficulty, with the law on introducing new evidence. Section 25 of the Supreme Court Act, Chapter 25 is very clear and so is Order 59/10 of the white book, 1999 Edition. But order 59/10/18 sets -J6- out exceptions to admission of fresh evidence which comes to light after the date of the trials but without disturbing the principle that there be finality in litigation. That order cites the case of Hughes v. Singh, (4) where among other things; the court held that evidence should be admitted in all cases where it would be an affront to one’s sense of fairness not to admit it. ” The authors of the White Book make a further point that; “In applying that test, the court takes into account all circumstances before, during apd after trial. In the light of the foregoing, he submitted that this case meets the legal requirements or conditions for the reception of fresh evidence in order to facilitate the review of the judgment of the lower court dated 29th December, 2015. He finally prayed that the appeal be allowed and the matter be referred back to the lower court to be handled by another Judge. In response to the appellants advocate’s arguments, learned counsel for the respondent submitted that the exhibit ATI is a letter in response to an application for plot number L Kaunda Square -J7- stage two addressed to Mr. Jacob Tembo. If admitted, it would have no material effect on the decision of the lower court. He also relied on the Jamas Milling (1) case. He went on to say that the lower court was right to rely on the case of Lisulo v. Lisulo (4> where it was held among other things that: “The power to review under order 39 Rule 2 is discretional for the Judge and there must be sufficient grounds to exercise that discretion.” In the light of the foregoing, he said since the court found no merit in the application, it exercised its discretion judiciously. > We have considered the arguments by both advocates, the authorities cited and the whole record of appeal. Order 39 Rule 2 of the High Court Rules is very clear. If an application for review is not made within 14 days after the decision, it shall not be admitted except by special leave of the Judge on such terms as seem fit. In the present case, six months from the date of judgment to the date of the application had elapsed. The application was twofold, i.e. for leave to appeal and for review. That in our view was improper because the applicant was supposed to obtain special -J8- leave of the court to apply for review before filing an application for review. The learned High Court Judge in actual fact did not determine the application for leave to review. She straight away considered the application for review. However, her actions are not fatal to the case because in the case of Kangwa Simpasa and Yu Huizhen v. Lackson Mwabi Mwanza, (5) an application for review was made late after the prescribed 14 days period from the date of the judgment but without leave of the court. The High Court Judge rejected the application on the ground that review was not A A- A-' A A- A’ available^ . Qfi appeal, Tlj.e^upreme'Coyrhwas of thesview; that the 4’5 time factor was not the main issue and the main issue was whether review was available. After considering all the grounds of appeal, the Supreme Court upheld the ruling of the learned trial Judge and dismissed the appeal. We shall in this case adopt the Supreme Court’s approach and consider whether review was available to the appellants not withstanding that the applications were made to the lower court very late. We are of the considered view that by adjudicating on the -J9- application for review in the manner that she did, the Judge impliedly granted leave to review. We therefore urge the courts and all litigants wishing to apply for review to follow the procedure laid down in Order 39 rules 1 and 2 to the letter. As regards the ground of appeal, it is clear from the last two paragraphs of the ruling appealed against that the Judge had considered the affidavits and all the submissions made by both advocates and she found no ground upon which to review her z judgment. She held tha1>the appellants>had not shown that fresh evidence existed at the tiihe she delivered her judgment. She also found that the appellant was seeking a second bite at the cherry and abusing court process. We are of the considered view that on the basis of the principle enunciated in the Jamas Milling case, the court should have said more about the purported fresh evidence. We have looked at exhibit ‘ATI’ which is said to be fresh evidence. It is indeed a reply to an application for plot L Kaunda Square Stage 2 which plot is not in issue in this case. However, the provisional offer made therein is of the plot in issue. We are of the view that -J10- the document most likely existed at the time that the Subordinate Court and the High Court rendered their judgments because it is dated 2 nd February, 1995 which was long before the said judgments. However the crucial question to be answered is whether there was fresh evidence that would warrant review of the judgment. We do not accept the appellant’s assertion that the said document could not have been discovered with due diligence before the judgment of the court below because the appellants have not shown that they had made concerted efforts to find it during the trial A A - -^o.pducted by^the ^ubordinat^Cojirt or before^thg,.appeal was^hqard A A A and determined by the High Court. Since they found it, we hold the view that such a document would have with due diligence been found earlier or if it is genuine, it would have been found on the records of the author i.e. the Lusaka Urban District Council. Be that as it may, the said evidence is immaterial as it would not have material effect upon the decision of the court because it is not a document of title but a provisional offer. The record shows that the defendant on the other hand holds a valid Certificate of Title to -Jll- the property in issue which has been unsuccessfully challenged. The last paragraph of the said offer reads: “On production of receipt in respect of the above payments, a letter of offer will be issued and subsequently the plot shown to you. If I don’t hear from you after the 2nd of February, 1995, this provisional offer will be withdrawn. ” The appellants have not produced a “letter of offer” which might have had material effect on the judgment of the court. For the foregoing reasons, the trial Judge properly found that the appellants did not show that fresh evidence existed at the time that s^e delivered h4r judgment because fresh Evidence should be ■•J-' looked at in terms of the case of Jamas Milling Company >• ij.' f" _ ''"'J' J*' f' _ _ '''■Qi' _ Limited!1} It is not fresh evidence to be considered on review, if it does not satisfy the legal requirements stated in that case. Applying the case of Lisulo v. Lisulo <4> we are of the view that the Judge was on firm ground to dismiss the application with costs because there were insufficient grounds to warrant a review of the judgment. In short, review was not available to the appellants in this case. -J12- For the foregoing reasons we uphold the ruling and dismiss the appeal with costs which may be taxed if not agreed upon. Dated this S^Tday of ......2017 COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J13-