Andries Wikus Scholtz v Bernard Ngule Kawewe and Anor (APPEAL NO./078/2020) [2022] ZMCA 188 (3 August 2022)

• - -· IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO./078/2020 HOLDEN AT LUSAKA (CIVIL JURI SDICTION) BETWEEN: ANDRIES WIKUS SCHOLTZ APPELLANT AND iJ 3 AUG t022 BERNARD NGULE KAWEWE 1 ST RESPONDENT MPHO GAEBOLOKE 2ND RESPONDENT CORAM: KONDOLO SC, CHI SHIMBA, NGULUBE JJA On 16th June, 2021 and 3rd August, 2022 For the Applicants :Mr. J. Madaika of Messrs J. M. Associates For the Respondents :Mr. M. Cheelo & Mr. B. Gongwa of Messrs MAK Partners JUDGMENT KONDO LO SC, JA delivered the Judgment of the Court CASES REFERRED TO: 1. The New Horizon Printing Press Limited v Waterfield Estates Limite.d & Another (2015) ZR Vol. 2 page 302 2 . Collet v Van Zyl Brothers Limited (1966) ZR 65. 3. Chifuti Maxwell v Chafingwa Rodney Mwansa SCZ/9/2016 • . . . J2 of20 4. Robert Simeza & Another v Elizabeth Mzye,che SCZ/23/201 5. Khalid Mohamed v The Attorney General {1982) ZR 49 6. Enyibros Foods Processing Company Limited and Chief Christopher . Enyinwa and Nigerian Deposit v Charles Ndubusi Mbamalu S. C 271/2001 July Danobo 'T/A Juldan Motors vs Chimsoro Farms Limited 1(2009) ZR 7. Mutantika & Another v Chipungu SCZ/ 1.3f2014 LEGISLATION REFERRED TO: 1. High Court Rules and High Court Act., Chapter 27, Laws of Zambia 2. Supreme Court Act, Chapter 25, Laws of Zambia 3. Halsbury's Laws of England, 4 th EdiUon Volume 1 ( lt J3 of 20 1. BACKGROUND 1.1 The Respondents who were the Plaintiffs in the Court below commenced an action against the Appellant by writ of summons and statement of claim on 16t h November, 2017. 1.2 The matter was set down for trial but the Appellant was not in attendance and the Judge proceeded with the trial in his absence. Judgement in the sum of K275,600.00 in favour of the Respondents was delivered on 21 st October, 2019. 1.3 The Appellant applied to set aside the Judgement providing the reason that he was away at his ranch which is located in a remote area and it was difficult for his Advocates to communicate with him as the area has no cell phone service. 1.4 The Respondents opposed the application, saying that the notice of hearing was served three months before the hearing date and that was long enough for his Advocates to get in touch with him. 1.5 The Appellant replied saying that his problem had been compounded by the fact that his Advocates had filed a notice to withdraw and for that reason they could not obtain instructions from him. 1.6 The Application to set aside the Judgement was dismissed. J4 of20 2 HIGH COURT DECISION 2.1 The trial Judge considered the application and made the following observations and findings; 2.2 The notice of trial for October 1, 2019 was served on the Appellant's Advocate on July 3 rd , 2019. The Appellant's Advocates only filed a notice of withdrawal on August 14, 2019. However, none of the parties attended Court on the hearing date. 2.3 The Appellant's Advocates must have communicated with the Appellant prior to their filing of the notice to withdraw. On October 3 rd 2019, 48 hours after the trial date, the Counsel filed a notice of re-appointment. This meant that they were in communication . 2.4 The reason given that the non-attendance at trial was due to lack of telephone network was unheard of and the Appellant and his Advocates needed to take responsibility for their inexcusable failure to attend trial. 2.5 The Judgement was not a default Judgement as one of the parties was heard. The trial Judge referred to the case of The Ne.w Horizon Printing Press Limited v Waterfield est ates Limited & Another 111 which states that a case under those circumstances has been heard on the merits. .. J JS of 20 2.6 Th e application to set aside the Judgment was consequently dism issed. 3 THEAPPEAL 3.1 Dissatisfied with the outcome of the case, the Appellant seeks to impugn the High Court Judgment and filed the following grounds of a ppeal; 1. The learned Puisne Judge erred in law and fact when he stated at page RB of the Ruling that the issue of withdrawal of the Defendant's Advocates was unhelpful when the issue went to the very heart of the failure by the Defendant to attend trial and provided a sound explanation for the said fai.lure by the Defendant to attend trial. The said issue demonstrates that the failure to attend trial was not wilful but on account of failure by the Advocates to discharge their duty to their client. 2 . The learned Puisne Judge erred in law and fact when he stated at Rll of the Ruling held that the non-attendance on the Defendant's part J6 of20 wc+5 without cause. The Court failed to I co,:tsider the fact that at the time the trial was I ta~ing place the Defendant had no proper legal I representation or notice of hearing and there ' I wa:S no actual proof on record that he was I personally aware of the date of hearing. . I I ' 3. The I learned Puisne Judge erred when he ' ulti,mately punished the Defendant for failure I by his lawyer to properly represent him. With glaHng evidence of under-representation by the I Defendants Lawyers, the Court ought to have I I exercised other options such as condemning I I the !,awyers to wasted costs of the hearing or I conc:lemning the Defendant himself to costs I payc;,.ble forthwith or other such measures I available to the Court, as opposed to punishing I the Defendant who had no misconduct directly I attributed to him by refusing to allow the ·. matter to be heard on the merits through a I I I fresh trial. i I I 4. The Court erred in law and fact when it held I I that 1the mere holding of the trial made the • Judkement one on the merits. The Judgement J7 of20 conlained no analysis of the evidence and I mainly rested on the failure of the defence and as such, does not meet the standards of a Judgement on merits but is in fact a default Judgement. The lower Court also fortified [sic] to consider that one of the key elements for I such a Judgement to qualify as being on the I . merits is that there must be wilful refusal to atteld trial by the Defendants which is not the case in this matter; and 5. That all in all, the Court erred when it declined i to set aside the Judgement of 21 st October, 3.2 The Appellant's Heads of Arguments I 3.3 The Appe11Lt filed Heads of Argument in which Grounds 1, I 2 and 3 we're argued together. 3.4 It was argued that the trial Judge erred by not taking into account thy fact that the Appellant's Advocates did not attend ' trial because they had filed a Notice of Withdrawal. J • ' 3.5 Counsel admitted that his client's Lawyers at the time should JS of20 have conducted themselves with better diligence but the Court should not have punished the Appellant on account of the shoddy representation by his Lawyers. The record showed that the hearing date was not communicated to the Appellant by his Lawyers and the Court should have adjourned the matter as provided by Order XXXV Rule 3, High Court Rules (HCR) and exercised its inherent power to penalize the Advocates. He pointed out that Order 35 Rule 3, Supreme Court Rules (SCR) has a similar provision. 3.6 That there was no evidence on record that the Appellant had previously failed to attend any hearings. · 3. 7 Counsel further referred to section 13 of the High Court Act (HCA) which provides that law and equity shall be administered concurrently. It was further submitted that the rules of natural justice require that every person has his day in Court. Halsbury's Laws of England, 4 th Edition Volume 1 (1) was cited to this effect. Counsel added that discretion must be exercised judiciously and he cited the case of Collet v Van Zyl Brothers Limited 121. 3.8 It was submitted that the Appellant had adequately explained why he didn't attend the hearing and the case of Chifuti j J9 of20 Maxwell v Chafingwa Rodney Mwansa l3l was cited where it held that the primary consideration for the Judge at the hearing of an application to set aside a Judgment are therefore the reasons for the absence and not the defence on the merits. The case of Robert Simeza & Another v Elizabeth Mzyeche l4l was also cited. 3.9 Counsel pointed out that it was not in dispute that a notice of withdrawal was filed and there was no proof that the notice was served on the Appellant. 3.10 In relation to grounds 1, 2 and 3, it was submitted that when all the facts are considered together, the Judgment by the trial Judge was not a Judgment on the merits but a default Judgment and it was prayed that these three grounds of appeal be upheld. 3.11 Under Ground 4 the argument was basically an extension of the already canvassed argument that the Judgment of 21 st October, 2019 was not a Judgment on the merits. He emphasised that the trial Judge did not analyse the evidence but concentrated on the perceived failure of the defence. The case of Khalid Mohamed v The Attorney General 15> was cited in which it was held that a party j cannot succeed based solely on the failure of the other JlO of20 party. 3.12 Counsel summed up by submitting that the appeal should succeed because the Appellant missed the hearing because he was not aware of the date of hearing and has a defence on the merits. 3.13 The Respondents filed a List of Authorities dated 22nd may, 2020 which they intended to rely on at the Hearing. 4 THE HEARING 4.1 The Appellants Arguments 4.2 Mr. Madaika on behalf of the Appellant submitted that, the Appellant was a South African National who lived outside the jurisdiction and whose lawyer filed a Notice of Withdrawal which the trial Judge refused to accept and the Appellant was compelled to proceed. 4.3 That this case was different from the cited cases because the Appellant had no personal knowledge of the hearing date. Knowledge was imputed by the Court and for that reason this case fell outside those matters where a lawyer is held to be the alto ego of his client. • Jll of20 4.4 The Respondents Arguments 4.5 Mr. Cheelo on behalf of the Respondents indicated that they were relying on the List of Authorities filed earlier. 4.6 It was submitted that the issue of the Appellant residing outside the jurisdiction was not canvassed in the lower Court. 4.7 Mr. Cheelo clarified that neither the Appellant nor his Lawyers were present at the trial. 4.8 He submitted that the trial Judge was on firm ground and his Judgment should not be disturbed. 4.9 Mr. Gombwa, also on behalf of the Respondents invited the Court to observe that the Notice of Hearing was served on the Appellant 90 days before the hearing. 4.10 That the appeal fell far short of the requirements set out in a plethora of cases and the Appellant was fully aware of the trial date when his Lawyers filed the Notice of withdrawal. That the Court was therefore on firm ground when it decided to proceed with the hearing. 4.11 The Respondents prayed that the appeal be dismissed. • j 4.12 Appellants Reply J12 of20 4.13 Mr. Madaika submitted that the issue of the Appellant residing outside the jurisdiction was raised in the Appellants affidavit in support. 4.14 That the Court should consider the key fact that the Appellant had made it clear that neither the Respondent nor his own Lawyers notified him of the hearing date. 5 OUR DECISION 5.1 We have considered the record of appeal and the arguments advanced by the parties in both their filed and viva voce arguments. 5.2 Grounds 1 & 2 were basically that the Court erred by not accepting that the Appellants had a good excuse for failing to attend the hearing. 5.3 Counsel for the Appellant stressed the fact that the Appellant was a South African National who resided outside the jurisdiction. 5.4 The affidavit filed by the Appellant, on 19th November, 2010, in support of his application to set aside the Judgment at paragraphs 6 and 10 (page 92 of the record of appeal) indicate that the Appellant was not out of the jurisdiction during the • Jl3 of20 · relevant period. He was at the ranch where he works and it was difficult for his Advocates to communicate with him about the hearing date because there is no cell phone service "as the ranch is located fin] remote parts of Zambia." 5.5 The Appellants Affidavit in Reply stated that his Advocates filed a notice to withdraw and this resulted in them failing to communicate with him. Incidentally, these are the same Advocates who represented the Appellant when he was applying to set aside the Judgment. 5.6 The law in this area is quite settled. We shall reproduce part of the holding in the case of Chifuti Maxwell v Chafingwa Rodney Mwansa (supra) where it was held as follows; "The starting point in our consideration is to revisit the relevant provisions of Order 35 of the High Court Act [sic] which states in part as follows: ,, 1) ... 2) ... l .. Jl4 of 20 3) If the plaintiff appears, and the defendant does not appear or sufficientl.y excuse his absence or neglects to answer when duly call.ed, 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. 4) •.• SJ Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be set aside by the Court, upon such terms as may seem .fit. 6) ••• ,, The interpretation we have given to the foregoing Order is t:hat it gives a Court discretion to proceed to hold trial where the plaintiff is in attendance but a defendant is not in attendance and has not explained or sufficiently explained his absence. The Court will exercise such discretion onl.y where • JlS of20 it is satisfied . that process was served upon the defendant. The Order also gives a Court the option to adjourn the matter and direct service of the notice of hearing. In a situation where the Court proceeds with the hearing and renders judgment, as was the case in this matter, upon application by a defendant and his showing "sufficient cause", the Court has the discretion to set aside the judgment. The White Book under Order 35 provides guidance as to what constitutes sufficient cause. At rule l sub-rule l, the Order sets out the relevant consideration in such applications thus: "where Judgment has been given after a trial it is the explanation for the absence of the absent party that is most important; unless the absence was not deliberate but was due to accident or mistake, the Court will be likely to allow a re-hearing". The primary consideration for the Judge at the hearing of an application to set aside ajudgment - 8 , are, therefore, the reasons for the absence of the party applying and not defence on the merits as Jl6 of20 argued by Mr. M. Lungu. Zuckerman On Civil Procedure: Principles of Practice .in agreeing with the position we have taken has the following to sayatpage 1047: ''Although thegeneralityofthis proposition has been doubted, it remains the case that a party who has failed to attend is entitled to an opportunity to explain his absence so that he may show good reason for his absence". Further, where it is clear that the absence was not deliberate, but arose out of accident or mistake the Court will most likely order a retrial, that is, set aside the Judgment." 5. 7 In casu, the trial Judge considered the reason advanced by the Appellant for failing to attend Court and found it to be an afterthought. The Court adequately explained the basis upon which it arrived at the said conclusion and declined to exercise its discretion to set aside the Judgment. 5.8 The cited cases indicate that in applications of this nature, the prime consideration is the reason presented for failure to -. Jl7 of 20 attend Court. The trial Court rejected the reason given by the Appellant. 5.9 We cannot interfere with the lower Courts exercise of its discretion simply because we might have arrived at a different decision if the application had been made to us in the first place. An Appellate Court can only displace a trial Courts exercise of discretion where it misdirected itself in law, took into account irrelevant matters or failed to take into account relevant matters. 5.10 In the case of Enyibros Foods Processing Company Limited and Chief Christopher Enyinwa and Nigerian Deposit v Charles Ndubusi Mbamalu 161 the Supreme Court of Nigeria said that an appellate Court should treat the exercise of discretion in a manner not dissimilar to the manner in which findings of fact are treated. 5.11 In relation to ground three, we note that the Appellants heads of argument at page 3 casts blame on the Advocates who represented him in the high Court as follows; "The Defendants erstwhile Advocates could have conducted themselves in better fashion and they should have discharged their duty to the Court and to the Defendant (Appellant) with better diligence, but this Jl8 of 20 failure is their own and the lower Court had inherent power to penalize for such shoddy representation of their client. It is however contrary to the interests of justice for the Appellant to be penalised for the Advocates failure." 5.12 The position of the law was ably stated by the Supreme Court in the case of Mutantika & Another v Chipungu 171, as follows; "Although it has also been argued and spiritedly so, if we may say, that the Appellants should not be preju.diced by the default of their Counsel and/or his negligence or incompetence, our firm position has always been that the relationship between a party and his lawyer is of no concern of the Court. as that is a private matter which has nothing to do with the Court. Hence, it cannot be used as a ground for ordering restoration of an Appeal that was dismissed due to absence of the Appellants and their legal Counsel. Surely, the incompetence or negligence of one's legal Counsel ca.nnot be sufficient ground for restoring an Appeal that was dismissed. Jl9of20 In July . Danobo TIA Juld.an Motors vs Chimsoro Farms Limite,d, we took t.he position that if at all the App.ellant would suffer any prejudice by the stand that we took 10/ dismissing the Appeal, then he may have recourse to his l~gal Counsel who did .not handle .his appeal properly. It fo•llows that if the App.ella,nts in the current case will be prejudiced in ,any .way ,by the stand that we have t ,ake,n of declining t ,o omer th,e ,restoration of the Appeal, it is up to them to seek recourse from their legal Counset" 5.13 We see nothing manifestly wrong in the way the trial Judge exercised his discretion and secondly, the shortcoming of the Appellants Lawyers is of no concern to the Court and is a matter purely between hi·m and them. 5.14 Gr•ound 4 was to the effect that the lower Courts Judgment failed to ·meet the standards of a Judgment on the merits and was to all intents a default Judgment which was amenabl,e to being set aside. 5 .. 15 The issue before us is whether the trial Judge was on firm ground when he declined to set aside his Judgment. t i J20 of 20 Whether it was a Judgment on the merits or a default Judgment, the considerations will be the same. 5.16 The considerations have been addressed in grounds 1 to 3 and for that reason, delving into this ground will be a mere academic exercise, an expedition upon which Courts are discouraged from undertaking. 5. 17 In the premises, we cannot fault the trial Judge for his findings and consequent decision declining to set aside his Judgment of 21 st October, 2019. 5 . 18 The appeal fails and costs are awarded to the Respondent. :=---:::: M. KONDOLO, SC COURT OF APPEAL JUDGE F .. M. CHISHIMBA COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE ~ .........................................