Andrew Changala v Maheba Asset Holding Limited (CAZ Appeal No. 297/2021) [2023] ZMCA 388 (10 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA._~ ~ L-Appeal No. 297 /2021 HOLDEN AT KABWE ~-~'? OF lAMB/11, ~~ \ . \C cP J ::t I. I~, or APPfA.1 'it[-'_ " i<Y ' ~IVII. fi1,[0\~I ~ PELLANT ~ 9, ~ f~ ' ) l ' - (Civil Jurisdiction) BETWEEN: ANDREW CHANGALA AND MAHEBA ASSET HOLDING LIMITED RESPONDENT CORAM : Chishimba, Sichinga and Ngulube JJA On 10th October, 2023 and 10th November, 2023 For the Appellant : Mr. H. C Musa of Messrs. Milner & Paul Legal Practitioners For the Respondents: Mr. J. Chibalabala of Messrs. John Chibalabala Legal Practitioners JUDGMENT CHISHIMBA JA delivered the judgment of the court CASES REFERRED TO: 1) John R. Ng'andu v Lazarous Mwiinga (1988 - 1989) Z. R. 197 2) Chifuti Maxwell v Chafingwa Mwansa & Rodgers Mwansa SCZ Appeal No. 9 of 2016 3) Tembo v Sichernbe &, Others SCZ Appeal No. 177 of 2014 4) BJ Poultry Farms Limited v Nutri Feeds Zambia Limited SCZ Appeal No. 166 of 2015 5) Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 6) D. E. Nkhuwa v Lusaka Tyre Services Limited (1977) ZR 43 7) George Balamona v Aidan Gaffney (1971) ZR 29 8) Shap v Hodsworth (1876) 3 Ch. D. 637 9) Williams v Wilcox (1838) 8 AD & EL 331 10) Chifu ti Maxwell v Chafingwa Rodney Mwansa Appeal 09/2016 J.2 11) Premesh Bhai Megan Patel v Rephidim Institute Limited {2011) 1 ZR 12) Anderson Kambela Mazoka & Others v Levy Patrick Mwanawasa & Others (2005) Z. R. 138 LEGISLATION REFERRED TO: 1) The High Court Rules Chapter 27 of the Laws of Zambia 2) Rules of the Supreme Court of England, 1999 Edition. 1.0 INTRODUCTION 1.1 This appeal impugns the ruling of Madam Justice Yvonne Chembe, as she then was, dated 16th September, 2021 in which she refused to set aside a judgement obtained in the absence of the appellant. 2.0 BACKGROUND 2.1 On 13th January, 2021, the respondent issued a writ of summons accompanied by a statement of claim against the appellant endorsed with the following reliefs: (i) An order or declaration that the plaintiff (respondent herein) is the rightful or legal owner of Stand No. 238 measuring 6038 m2 and &and No. 239 measuring 5107 m2 situate in Solwezi and as such is entitled to peaceful and quiet enjoyment of its right to title and possession of the properties; (ii) Damages for trespass; {iii) An order compelling the defendant {appellant herein} to cease from effecting any constructions or development on the respondent's property forthwith and immediately; J.3 (iv} An order compelling the appellant to remove the beacons and/ or wire fence the appellant has placed in the respondent's premises and thereby extending his boundaries; (v} An order compelling the appellant to pay over to the respondent all the rent received by the appellant from the properties on the respondent's land since 20th December, 2019 to date of judgment or handing over of the property; (vi) Interest on all sums found due; (vii) Legal costs and any other relief the court may deem.fit. 2.2 The record shows that the appellant, who was unrepresented at the time, was served with the writ of summons, statement of claim, plaintiff's list of documents and witnesses on 15th January, 2021. The appellant did not file a defence. At the scheduling conference held on 24th February, 2021, the appellant was advised by the court to file his bundle of documents by 31 st March, 2021 and trial date was set for 12th April 2021. 2.3 On 5 th April, 2021 he was served with the plaintiff's bundle of documents and pleadings. Trial commenced on 12th April, 2021. The sole witness for the respondent testified and was examined by the court. The matter was adjourned for judgment which was delivered on 16th July, 2021 in which all the reliefs sought in paragraph 2.1 by the respondent were granted. J.4 2.4 Prior to delivery of judgment, the appellant had on 11th MaJ:I 2021 issued summons to set aside writ of summons and statement of claim for irregularity. On the 6 th August, 2021, the appellant issued summons for an order to set aside judgment obtained in the absence of a party pursuant to Order 35 rules 5 and 3 of the High Court Rules Chapter 27 of the Laws of Zambia. 3.0 AFFIDAVIT AND ARGUMENTS IN THE COURT BELOW 3.1 In his affidavit in support of the summons to set aside judgment obtained in the absence of a party, the appellant deposed that on 11 th May, 2021, he caused to be filed an application to set aside writ of summons and statement of claim for irregularity having been sued in his personal capacity when he is the administrator of the estate. Whilst waiting for the application to be given a date for hearing, he was surprised to receive a copy of the judgment of the court on 3,·d August, 2021. 3.2 The said judgment was entered against him based on a trial that took place in his absence without his knowledge of the hearing date as he was not served a notice of hearing. He stated further that the judgment was entered without his application to set aside writ being heard. He depo::;ed that the J.5 evidence of the respondent was not tested in cross examination. Neither was the surveyor who wrote the report called to testify. 3.3 The respondent opposed the application in a combined affidavit in opposition to summons for a stay of execution and setting aside of writ sworn by N dashe Fisonga, a manager in the respondent company. He stated that at the time the appellant's made the application to set aside writ of summons and statement of claim, trial had closed and the matter had been reserved for judgment. 3.4 Further, that no prejudice would be occasioned to the appellant as the court process can be amended more so that the mix up in parties was caused at the instance of the appellant. In addition, that the law prescribes time frame within which appearance should be entered, which in this case, was on or before 5th February, 2021. The appellant was aware at all material times of the proceedings against him in view of the letters of service dated 14th and 29Lh January, 2021 and 5 th April, 2021 1n which he was served the originating process, notice of scheduling conference and bundles of documents and pleadings respectively (see pages 159 to 161 of the record of appeal). J.6 3.5 The appellant never took any proactive steps to prosecute the matter despite service, and the matter proceeded to trial and judgment was rendered. That even at the time of trial, the appellant had not entered appearance. An email marked "NF4" was exhibited being email exchanges between the respondent and appellant wherein the respondent's advocates were advising the appellant to engage legal representation and to also enter defence in the matter failing which judgment would be entered. That the court below also guided the appellant to seek legal representation when he appeared at the status conference having not entered appearance and defence. 4.0 DECISION OF THE COURT BELOW 4.1 In her ruling, Justice Chembe noted the reason advanced by the appellant for failing to appear, that he was not aware of the date of hearing. The court below however, observed that the record showed that the appellant did appear at the scheduling conference as an unrepresented litigant on 24th February, 2021 where he was advised to enter appearance and defence. The appellant did neither. That he did not appear at the hearing on 12th April, 2021 and that five months after the matter was commenced on 29th June, 2021, J.7 he filed summons to set aside writ and statement of claim at which time judgment was being awaited. 4.2 The court below considered the reason advanced to set aside the judgment and found that there was no reason to serve the appellant a notice of hearing when the record shows that he did not place himself on the record by entering appearance to defend. She found the submissions by the appellant that his application to set aside the writ was not heard shocking, considering that the application was made while the matter was pending judgment. Further, that the application itself was irregular as it was not accompanied by a conditional appearance to defend. 4.3 The learned Judge took the view that this was a clear case of a litigant showing disdain for legal proceedings and counsel jumping into a matter without considering the most appropriate way to advance their client's case. That the appellant had not advanced any reasonable defence to warrant the setting aside of the matter. The lower court noted that it actually decided to hear the matter as opposed to entering judgment in default in order for the respondent to prove its claim. J.8 4.4 Consequ en t ly, th e court below d ism issed the application with costs and discharged the interim order of stay granted e arlier. 5.0 GROUNDS OF APPEAL 5. 1 Dis sa tisfied by t h e decision of the court b elow, the appellant la unched an a ppeal advancing five grounds as follows : 1. The court below erred in law and fact when tt dismissed the appellant's application to set aside judgment obtained in absence of a party without any evidence of an affidavit of service being filed by the plaintiff before proceeding with trial; 2. The court below erred in law and fact by holding that there was no reason for the plaintiff to seroe the appellant with a notice of hearing as he had not entered appearance to defend despite the evidence on record that he had been seroed with other notices and court documents; 3 . The court below erred in law when it held that the appltcation to set aside the writ of summons and statement of claim for irregularity was itself irregular for failure to.file a conditional appearance to defend when the said application was made pursuant to Order 2 rule 2 of the Rules of the Supreme Court of England (1999) Edition; 4 . The court below erred in law and fact when it held that the defendant had not disclosed any reasonable defence to warrant the setting aside of the matte r without due regard to the evidence on record; and 5 . The court below erred in law andfact when it held that this is not an appropriate case to warrant the setting aside of the judgment despite the appellant having given an explanation for his absence at trial. J.9 6.0 APPELLANT'S HEADS OF ARGUMENTS 6.1 Learned Counsel for the appellant filed heads of arguments dated 6 th December, 2021. In ground one, the appellant contends that the court below did not confirm whether there was a notice of hearing served on the appellant before proceeding with trial. That there was no affidavit of service of the notice of hearing. The court was ref erred to Order 35 rule 3 of the HCR which provides that: 3. If the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the Court may, upon proof of service of notice of trial, proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant. 6.2 Counsel submitted that the court below ought to have postponed the hearing, there being no proof of service of notice of hearing in order to allow the appellant to be notified of the hearing date. As authority, the case of John R. Ng'andu v Lazarous Mwiinga 111 was cited where the court held that: The trialjudge had no jurisdiction to dismiss the appeal/or want of attendance of the appellant's advocate. In the absence of proof of service of a notice of the new hearing date the only course open to the court were to allot afresh J.10 hearing date and to cause notices thereof to be served on the advocates for the parties or to strike the case out of the list and leave it to the parties to make application to restore. 6.3 Grounds two and five were argued together and relate to the appellant not being served with a notice of hearing. The court below took the view that there was no need to serve the appellant with a notice of hearing because he had entered no appearance to defend. Counsel contended that the appellant had given sufficient excuse or reason for his absence because trial took place without his knowledge of the hearing date. That the appellant was not served with a notice of hearing. 6.4 It was submitted that a court will exercise its discretion to proceed to trial where it is satisfied that process was served upon the defendant. As authority reference was made to the case of Chifuti Maxwell v Chafingwa Mwansa & Rodgers Mwansa 121• That where judgment has been given after a trial, it is the explanation for the absence of the party that is most important. The Supreme Court held that, the court below erred in setting aside the judgment obtained in the absence of a party without considering the reason advanced by the appellant for his absence at trial. J.11 6.5 It was further submitted that the respondent, having already served the appellant with other notices and bundles of documents and pleadings, and the appellant having appeared at the scheduling conference without having entered appearance, the lower court misdirected itself by holding that there was no need to serve the appellant with a notice of hearing as he had not entered appearance. In addition, that it was an afterthought because at the time that the trial court proceeded to hold trial, all the reasons for its decision must have been revealed on the record. See the case of Tembo v Sichembe & Others 131. 6.6 In ground three, the appellant submits that the application to set aside the writ of summons and statement of claim was not irregular. That it was properly before the court, made pursuant to Order 2 rule 1 of the RSC. The said provision reads as follows: (1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. 6.7 However, Order 11 of the High Court (Amendment) Rules Statutory Instrument No. 58 of 2020 has completely done J.12 away with the need to file a conditional memorandum requiring only that a defendant enters appearance to a writ of summons by filing a memorandum of appearance, defence and counterclaim, if any, and list of witnesses. 6.8 Lastly, in ground four, the appellant submits that the court below erred by paying due regard to whether the appellant had disclosed a reasonable defence and not whether the reason given for his absence at trial was reasonable. He argued that he had a defence on the merit despite not having filed a defence as shown at page 125 to 126 of the record of appeal. 6.9 The appellant placed reliance on the cases of BJ Poultry Farms Limited v Nutri Feeds Zambia Limited l4 l and Wilson Masauso Zulu v Avondale Housing Project Limited 151 and urged the court to reverse the perverse findings of the trial court made in the absence of any relevant evidence. 7 .0 RESPONDENT'S HEADS OF ARGUMENTS 7.1 The respondent filed heads of argument dated 6 th January, 2022 and argued grounds one, ~wo and five together. The attention of the court was drawn to Order 11 rule 1(1) of the HCR which provides as follows: J.13 1.(1) A defendant shall enter appearance to a writ of summons by delivering to the proper officer- in writing or electronically, sufficient copies of the - (a) memorandum of appearance dated on the day of delivery and stating, as the case may be - (i) the name of the defendant's advocate: or (ii) that the defendant is defending in person: (b) defence and the counterclaim, if any, together with a list of- (i) description of documents to be relied on by the defendant at trial; and (ii) list of witnesses to be called by the defendant at trial. 7 .2 It was submitted that a party sued is required by law to enter appearance and defence. This requirement is also spelt out on the writ of summons served on the party sued to cause an appearance to be entered within 21 days of service. That the appellant was served the writ of summons and accompanying statement of claim together with other documents. The appellant acknowledged receipt as per the letter of at page 83 of the record of appeal. 7.3 Counsel for the respondent submitted that the case of D. E. Nkhuwa v Lusaka Tyre Services Limited (6 ) enunciates the principle of law that litigants who do not comply with the rules of court, do so at their own peril. J.14 7.4 As to what must happen where a defendant who is served the writ of summons and statement of claim fails to enter appearance, the court was referred to Order 12 rule 1(8) of the HCR, which provides that: (8) In all actions not otherwise specifically provided for by the other sub-rules, in case the party seroed with the writ of summons does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavi.t or certificate of seroice, the action may proceed as if such party had appeared. 7.5 With respect to the filing of an affidavit of service, it was contended that the failure to file an affidavit of service did not prejudice the appellant in any way for the reasons given above. That the appellant was advised via email appearing at page 162 of the record, and the court below to seek legal representation, enter appearance and defence failing which judgment would be entered against him. This advice was repeated at the scheduling conference where the court below directed the appellant to file his bundle of documents by 31st March, 2021. The appellant did not heed the counsel. Therefore, failure to file an affidavit of service does not prejudice the appellant in any way whatsoever and/ or at all. J.15 7 .6 The appellant having attended court where he was advised to seek legal representation and to file his defence having been served the writ of summons and statement of claim together with other documents as per the letter of service, legitimized the proceedings against the a pp ell ant. Therefore, the lower court was on firm ground when it held that the respondent was not required to serve the notice of hearing on the appellant as the law presumes a defendant who has not entered appearance and defence as present at the trial. 7 .7 Counsel submitted that the facts and circumstances of this case show a history that the appellant has not been prejudiced at any point in time. This is because the appellant has been disdainful towards the proceedings in the court below. After being issued with a demand letter, the appellant asked for 14 days to verify the claims of ownership, encroachment and other claims made by the respondent but that he never communicated his findings. 7 .8 Judgment was accordingly entered pursuant to Order 12 of the HCR dealing with a party's default to enter appearance and defence, and not pursuant to the provisions of Order 35 as suggested by the appellant. J.16 7.9 It was further submitted that both Orders 35 and 12 of the HCR provide for setting aside of a judgment obtained in the absence of a party provided sufficient cause is shown. Further that a default judgment once entered and not set aside can be a final judgment. In this case, the appellant misapprehended the law by failing to make the appropriate application to set aside the judgment. In any event, the court below was not persuaded that there were sufficient reasons or cause warranting the setting aside of the judgment. 7.10 As to the contention that the lower court did not consider the reason advanced for the absence of the appellant at trial, the respondent submitted that the ratio decidendi is clear, that the court below found the reasons to be inadequate. That for 5 months, the appellant deliberately ignored advice to seek legal representation and enter appearance and defence. That the appellant never took any steps to prosecute his defence, neither did he advance any explanation as to why he did not enter appearance and defence, and/ or neglected to answer the suit. 7.11 In ground three, the respondent submits that the requirement for entry of conditional appearance before one launches an application to set aside a writ of summons for J.17 irregularity has not been done away with in light of Order 11 rule 1(1) of the HCR. The High Court decision of George Balamona v Aidan Gaffney 171 was cited to show that a defendant is entitled to enter an appearance conditional or unconditional in order to safeguard his own interests. 7.12 It was contended that it is a requirement under the law that for a defendant to take any steps, the defendant must enter appearance, be it conditional or unconditional, and that the entering of a conditional appearance does not amount to taking of a fresh step. The editorial note to Order 2 rule 2 of the RSC was cited as authority. 7.13 In the alternative, the respondent submitted that the record will show that the application to set aside the writ of summons and statement of claim was filed five months after the matter was commenced and pending judgment, at which the court below was barred or precluded from considering the application. Reliance was placed on Order 19 rule 3(3) of the HCR which provides that: (3) A party shall not lodge, and a Judge shall not consider any interlocutory application fourteen days before commencement of trial. J.18 7 .14 That in light of the provision above, the appellant's application to set aside writ was irregular as trial of the matter had taken place. That in its ruling, the learned Judge also expressed shock with the submission that the appellant had filed an application to set aside writ which was not heard. 7.15 Lastly, in ground four, it was submitted that the appellant did not disclose any reasonable defence to warrant the setting aside of the matter. That a perusal of the affidavit at pages 125 to 126, in particular, paragraphs 10, 15, 20 and 25 does not exhibit the defence, contrary to practice. That what is stated in the affidavit is mere evidence which must be anchored on a certain defence which must have been filed or pleaded. 7 .16 Counsel submitted that mere statements in an affidavit cannot define the issues or dispute to be addressed at trial and neither can they be indicative of what defence a party intends to put up. The cases of Shap v Hodsworth 181 and Williams v Wilcox t9 l on pleading of facts as opposed to the evidence were cited in support. 8.0 ANALYSIS AND DECISION OF THE COURT 8 .1 We have considered the appeal, the arguments and aulhurilie!:> cited by learned Counsel on record. It is not in J.19 dispute that on 13th January, 2021, the respondent issued a writ of summons accompanied by a statement of claim against the appellant. On 15th January, 2021, the appellant was served with the writ of summons, statement of claim, plaintiff's list of documents and plaintiff's list of witnesses as per the letter of service at page 83 of the record. Despite the above, the appellant did not file a defence. 8.2 A scheduling conference was held on 24th February, 2021 at which the appellant was advised by the court to file his bundle of documents by 31 st March, 2021. In addition the return date for trial was given by the court. Notwithstanding the guidance, appellant still did not file any defence. In a letter dated 5 th April, 2021, the respondent served the appellant bundles of documents and pleadings. Thereafter, trial commenced on 12th April, 2021 and the matter was adjourned for judgment. 8.3 On 11 th May, 2021, four months after he was served with the originating process and one month after trial had concluded, the appellant issued summons to set aside writ of summons and statement of claim for irregularity which application was not heard. Judgment was delivered on 16th July, 2021. On 6 th August, 2021, the appellant issued summons for an order to J.20 set aside judgment obtained in the absence of a party. The said application was dismissed, hence the appeal herein. 8 .4 The issues for determination raised in the grounds of appeal are as follows: (i) Whether the court below erred in law and fact by declining to set aside the Judgment obtained in the absence of a party i.e whether the appellant had advanced sufficient grounds to warrant the setting aside of the judgment. (ii) Whether the earlier application to set aside writ and statement of claim for alleged irregularity was irregulary and improperly before the court. 8.5 The grounds of appeal shall be addressed together as they are related. The appellant contends that the trial court proceeded with trial in his absence without proof of service of the notice of hearing as required under Order 35 rule 3 of the HCR. It is trite that a defendant must comply with the provisions of Order 11 rule 1(1) of the HCR by entering appearance to the writ of summons. Appearance is entered by filing a memorandum of appearance 1 and a defence (and counterclaim as the case may be). This must be accompanied by a description of documents to be relied on by the defendant at trial and a list of witnesses to be called by the defendant at trial. J.21 8.6 The record at page 179 shows that the matter on the 24th of February 2021 came up for a scheduling conference. The appellant Andrew Changala was also in attendance appearing in person. The court adjourned the matter to 12th April 2021 at 10:00 hours for trial and further directed the appellant to file his bundle of documents which the appellant failed to do so. In the case of Premesh Bhai Megan Patel v Rephidim Institute Limited 1101, the Supreme Court guided that: In dealing with an application to set aside a default judgment, the question is whether a defence on the merits has been raised or not, whether the applicant has given a reasonable explanation of his failure to.file a defence within the stipulated time and that it is the disclosure of the defence on the merit which is the more important point to consider. 8.7 We are alive to the fact that we are not dealing with a mere default judgment. This matter proceeded to full trial with the plaintiff's witness testifying. The appellant contends that trial proceeded in his absence and that he was not served or aware of the hearing date. The issue is whether the court was wrong to proceed to hear the matter in the absence of the appellant. 8.8 It is trite that a judgment obtained in the absence of a party may be liable to be set aside. Further, the overriding principle is that matters should be decided on their substance and J.22 merit. Was the court justified to proceed in this matter in the absence of the appellant? Further, did the appellant advance reasonable explanation for failure to attend trial of the matter. 8.9 A perusal of the appellant's affidavit in support to set aside judgment obtained in the absence of a party at pages 123 to 126 of the record shows that the appellant advanced the following reasons: (1) That he had filed an application to set aside for irregularity on the basis that h e had been sued in his personal capacity and not as administrator of the estate of his deceased father; (2) That he was waiting for the application in ( 1) to be given a hearing date when he learnt that judgment had been rendered; (3 ) That the respondent will not be prejudiced if the application was granted; (4) That he was absent for trial because he did not receive any notice of hearing for trial; (5) That granting the application would give him an opportunity to test the evidence of the respondent in cross-examination to show that he buildings on the J.23 disputed piece of land were built long before the respondent purchased the land from the previous owners who had never complained of any encroachment; and (6) That the surveyor who authored the report was not called to testify by the respondent and the appellant could not cross-examine him. 8.10 We are of the view that the reasons advanced are unacceptable and not reasonable. The mere fact that the appellant had filed an application to set aside the writ for irregularity and was awaiting a return date is not sufficient reason to fail to file a defence and fail to attend trial. The appellant does not refute having been served with the writ and statement of claim. Neither does he refute that fact that the court at a scheduling conference on 24th February 2021, adjourned the matter for trial to the 12th of April 2021 at 10:0 hours. 8 .11 The question is whether the appellant can be said not to have been issued with a notice of hearing for the trial date 12th April 2021. 8.12 We are of the view that the appellant was aware of the trial date. The learned Judge at the scheduling conference of 24th J.24 February 2021 adjourned the matter to 12th April 2021 at 10:00 hours for trial. The appellant appeared in person at the scheduling conference where the date for trial was notified to the parties. We further, hold the view that the learned Judge exercised her discretion properly by refusing to set aside the judgment obtained in the absence of the Appellant. 8.13 Order 35(3) of the High Court Rules reproduced earlier in paragraph 6 .1 gives the court the discretion to proceed to trial where the defendant is not in attendance. In the case of Chifuti Maxwell v Chafingwa Rodney Mwansa and Rodgers Chipili Mwansa (lO) the Supreme Court dealt with the issue of setting aside a judgment obtained in the absence of a party and the provisions of Order 35 of the High Court Rules by stating that: "The interpretation we have given to the forgoing is that it gives a court discretion to proceed to hold a trial where the plaintiff is in attendance but a defendant is not in attendance and not explained or sufficiently explained his absence. That the court will exercise such discretion only where it is satisfied that the process was served upon the defendant" 8.14 Order 35 Rule 2 of the RSC provides for the setting aside of the judgment obtained where one party does not appear at trial. We have taken into account in considering whether the J.25 judgment ought to have been set aside, the explanation for the absence of the appellant. For that is the most important considerations at this stage unless the absence was not deliberate but due to accident or mistake. 8.15 We hold the view that the reasons advanced for the absence by the appellant on the trial date of 12th April 2021 are insufficient. The appellant was notified by the court of the trial date of 12th April 2021 at the scheduling conference, which he attended in person. Having had notice of the proceedings and disregarding the opportunity of appearing and participating in the trial, the judgment cannot be set aside. The appellant is bound by it. 8.16 Further it is trite that the court will not consider setting aside judgment regularly obtained i.e after trial, unless the matter has real prospects of success. 8.17 We have gone further to even consider, whether appellant's '{defence" has prospects of success. The record shows that no proposed defence was exhibited for the court to form a basis as to prospects of success. 8.18 The entering of appearance and defence serves as notice to the court and the plaintiff that the defendant intends to challenge the claims brought against him and the naLure of J.26 the evidence he intends to rely on. This is the function of pleadings as per the case of Anderson Kambela Mazoka & Others v Levy Patrick Mwanawasa & Others 1111 where it was held that: The function of pleadings, is to give fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to detennine the matters in dispute between the parties. 8.19 As to the issue of the appellant being sued 1n a wrong capacity, the record shows that the appellant only sought to set aside the writ for irregularity on 11 th May, 2021 being four months after he was served with the originating process and one month after trial was concluded. 8.20 The application to set aside writ for irregularity was not heard by the lower court because it came too late in the day. Order 19 rule 3{3) of the HCR provides that: (2)A party shall not lodge, and a Judge shall not consider any interlocutory application fourteen days before commencement of trial. 8.21 Reverting to the issue of whether there was sufficient cause shown, we come to the inescapable conclusion and holding that perusal of the appellant's affidavit does not disclose sufficient reasons or a defence on the merits worth J.27 considering or the warrant the setting aside of the judgment to lower court. 9.0 CONCLUSION 9.1 We reiterate that no sufficient cause was shown to warrant the setting aside of the judgment given in the absence of the appellant. The court below exercised its discretion properly by refusing to set aside the judgment in issue, the appellant having been notified of the trial date at the scheduling conference. We accordingly uphold the ruling of the court below. Costs to the respondent to taxed in default of agreement. The appeal is dismissed. F. M. Chishimba COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE P. C. M. Ngulube