Anderson Geoffrey Chongo v Brian Mataka Mambwe and Ors (APPEAL NO. 281/2021) [2022] ZMCA 173 (31 May 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 281/2021 BETWEEN: ANDERSON GEOFFREY CHON AND BRIAN MAT AKA MAMBWE SARZAM ENTERPRISES LIMITED ALICE MOONO BRENDA MOONO C OF ZA Of APP£ . . .. iNALREGIS X soob7 LLANT SPONDENT 0 RESPONDENT 3RD RESPONDENT 4 ™ RESPONDENT CORAM: CHISHIMBA, SIAVWAPA AND BANDA-BOBO, JJA. On 20th March and 31 s t May, 2022. FOR THE APPELLANT: MISS M . KAPAPULA OF MESSRS SLM LEGAL PRACTITIONERS FOR THE RESPONDENTS: NOT IN ATTENDANCE JUDGMENT SIA VW APA, JA delivered the Judgment of the Court. 1. 0 INTRODUCTION 1.1 This is an appeal against the ruling, dated 14th July 2021 , handed down by the Honourable Mr. Justice E . L. Musona in th e High Court of Zambia. 1.2 By the said ruling the learn ed Judge dismissed the entire action for non-compliance with the order for directions issued on 7 th May 2018. 2.0 THE BACKGROUND J2 2.1 The Appellant herein commenced an action in the High Court on 28th August 2012 by originating summons. 2.2 By ruling dated 20th January 2014, Mrs. Justice Kabuka directed an amendment to the proceedings so that the matter could proceed as one commenced by writ of summons as contentious issue were raised. 2.3 Pursuant to the above referred to ruling, Mr. Justice I. C. T Chali; issued an order for directions dated 7 th May 2014 setting out timelines within which the parties were to take specific actions in preparation for trial. 2.4 Following the order for directions, several interlocutory applications were filed with the last one being for leave to file a second supplementary bundle of documents at the instance of the Appellant, filed on 18th April, 2018. 2.5 On 7 th May 2018 , Mrs. Justice S. Newa issued yet another order for directions directing the parties to file a consent order to withdraw the bundle of documents within 14 days of the order for directions. 2.6 The learned Judge also set 4 t h October 2018 as the date for the hearing of the matter. J3 2 .7 In the meantime, the matter was held to have fallen into backlog and on 25 th June 2018, Mrs. Justice Newa referred it to the Task Force on backlog in the absence of the parties. 2.8 On 14th July 2021, Mr. Justice E. L. Musona, to whom the matter was allocated, called for a status conference and dismissed it for the reason stated in paragraph 1.2 of this Judgment. 3.0. THE APPEAL 3 . 1 Aggrieved by the learned Judge's decision, the Appellant filed a Notice and Memorandum of Appeal on 9 th August 2021 raising 4 grounds of appeal. 3.2 The following are the grounds of appeal as contained in the Memorandum of Appeal. 1. The Court below erred zn law and in fact when it dismissed the entire action when there was a pending interlocutory application for leave to file second Supplementary Bundle of Documents by the Appellant. 2. The High Court erred in low and in fact when it dismissed the action when the Appellant had complied and filed the main Bundle of documents on 22nd January 2016. 3. The High Court erred in law and in fact when it held that the consent order executed by the Appellant and J4 the Respondents and filed on 18th June 2018 was of no consequence. 4. The Court below erred in law and fact when it dismissed the action when the matter was referred to backlog and re-allocation before the scheduled trial date of 4th and 5th October 2018. 4.0 ARGUMENTS IN SUPPORT 4.1 The Appellant filed heads of argument on 22 nd November, 2021 in which he argued grounds 1 and 2 together while grounds 3 and 4 are argued independently. 4.2 In arguing grounds 1 and 2, the Appellant faults the learned Judge for dismissing the en tire action when there was a pending interlocutory application. 4.3 In that regard, it is argued that having complied with the order for directions by filing the main bundle of documents on 22 nd January 2016, the Appellant's interlocutory application ought to have been heard. 4.4 In ground 3, it is argued that the learned Judge was wrong to declare the consent order filed by the parties inconsequential because the rules provide for the same. Order 42 Rule SA of the Rules of the Supreme Court 1999 and Practice Direction No . 10 of 1968 were cited as authorities in support of the argument. JS 4.5 In ground 4 the learned Judge is faulted for dismissing the action when it was referred to backlog and re-allocated before the date scheduled for trial. 4.6 This criticism seems to be premised on the understanding that the learned Judge ought to have proceeded to hear the main matter because the hearing date was set prior to it being referred to the Task Force on Backlog. 5.0 OUR ANALYSIS AND DECISION 5.1 Before delving into our analysis, we wish to state that this appeal was initially scheduled for hearing on 23rd March 2022. However, when the matter was called, the parties revealed that they had filed a consent order allowing the Respondents to file their heads of argument and a Supplementary Record of Appeal and for the Appellant to file a reply if any. 5.2 We accordingly adjourned the hearing to 20th April 2022. On that date, it turned out that there was no attendance by the Respondents and neither had they filed their heads of argument and Supplementary Record of Appeal. 5.3 In view of the above development, we allowed counsel for the Appellant to argue the appeal but she opted to place reliance on the filed h eads of argument. J6 5.4 We have accordingly given due consideration to the impugned ruling and the arguments filed in support of the grounds of appeal and we are of the considered view that the question to be resolved is whether the learned Judge was entitled to dismiss the cause in the circumstances. 5.5 The question we pose, therefore, is; why did the learned Judge dismiss the action? The answer to the question is found in the ruling and it is because the parties had failed to comply with the Order for directions directing the parties to withdraw the Bundle of Documents (see page 425 ROA). 5.6 The Appellant has argued that on 14th July 2021, when the learned Judge dismissed the cause, there was a pending interlocutory application by the Appellant (the 1st Respondent in the Court below), to file 2nd Supplementary Bundle of Documents. The summons was filed on 18th April 2018. 5.7 The Record however, shows in the proceedings commencing at page 447, that on 7 th May 2018, when the matter came up before Mrs. Justice Newa, counsel for the 1st Defendant (Appellant) informed the Court in line 15, that an agreement had been reach ed with counsel for the Plaintiff and the 3 rd party to withdraw the Bundle of Docum ents in order to file a consolidated Bundle of Documents. J7 5.8 It was on the basis of that submission, which was not opposed by the Plaintiff, that the learned Judge issued the order for directions which Mr. Justice Musona adjudged not to have been complied with and the basis for dismissing the cause. 5.9 It is therefore misleading for the Appellant to argue that at the time the matter was dismissed; there was an interlocutory application pending. 5.10 Following the order for directions, it behoved the parties to comply with it, more so that it was by consent of the parties. 5.11 It is therefore, our firm view that the learned Judge was not obliged to revive the Interlocutory application when there was an order for Directions that sought to enforce the parties preferred route of prosecuting the cause. 5.12 The argument for compliance with reference to the Bundle of Documents filed in 2016 also falls away because, that is the Bundle which the parties agreed to withdraw to facilitate the filing of a consolidated one. 5.13 Grounds 1 and 2 therefore, lack merit and they are dismissed accordingly. J8 5 . 14 In ground 3 the argument that faults the learned Judge for declaring the consent order filed on 18th June 2018 to be of no consequence is untenable in our view. 5.15 The said consent order appears at page 427 of the Record of Appeal and it is purported to be in compliance with the order for directions filed on 7 th May 2018. Fourteen days from the date of issue would lead to 21st May, 2018 as the date by which the consent order withdrawing the Bundle of Documents should have been filed. 5.16 Clearly, the consent order was late by 26 days and to make matters worse, the learned Judge, who was seized with the matter at the time, did not sign it. This is of interest because at the time the consent order was filed, Mrs. Justice N ewa had not yet referred the matter to the Task Force on Backlog. 5.17 It is clear from the ruling that the reason Mr. Justice Musona declared the consent order inconsequential is that it was not endorsed by the Judge before subsequently referring the record to the Task Force on Backlog. The learned Judge cannot therefore, be faulted for the declaration because a consent order takes effect only after it receives approval of the Judge, otherwise it is worthless. 5.18 We have not seen anywhere in the cited order and Practice Direction where it is stated that a consent order or J9 Judgment filed by parties 1s enforceable without endorsement by the Court or Judge. 5.19 This ground of appeal equally fails for lack of merit. 5.20 The fourth ground criticizes the learned Judge for dismissing the matter before the da te scheduled for hearing. 5.21 Our simple response is that wh eth er or not the matter was referred to the backlog, before the d ate set for hearing, the fact not in dispute is that the parties had not complied with the order for Directions which was a prer equisite for the hearing of the matter. 5.22 In the normal sc heme of things the matte r could only go to trial if the order for Directions had been complied with. The major default on the part of the parties was their failure to file a consent Order withdrawing the Bundle of Documents within 14 days of the issuing of th e Order for Directions which should have b een followed by the filing of a consolidated bundle. 6 . 0. CONCLUSION 6.1 We h ave clearly demonstrated that a t the time the learned Judge dismissed the cause for non-compliance with the order for Directions, th e re was n o pending interlocutory application as it h a d been superseded by the said order for Directions. no 6.2 Similarly, the purported compliance relating to the Bundle of Documents filed in 2016 was not connected to the order for Directions of 2018 which the learned Judge adjudged to have been breached. 6.3 The consent order filed on 18th June 2018 was indeed of no consequence as it was not only filed out of time without an order to extend time, but it was also not approved by the Judge. 6.4 It is therefore, our considered view that the learned Judge exercised his discretion to dismiss the cause, judiciously and in accordance with the Rules of Court. 6.5 In the view we have taken, the appeal has no merit in its entirety and we dismiss it accordingly. We order each party to bear own costs for the reason that the matter has taken too long, having commenced in 2012. F . M. CHISHIMBA COURT OF APPEAL JUDGE ······ ···· ~ ··· ······· ········· A. M. BANDA-BOBO COURT OF APPEAL JUDGE M. J. SIAVWAPA COURT OF APPEAL JUDGE I