Barclays Bank Zambia PLC v Tresford Chanda (Appeal 64 of 2005) [2007] ZMSC 34 (24 January 2007)

IN THE SUPREME COURT FOR ZAMBIA (cid:9) HOLDEN AT LUSAKA APPEAL NO. 64/2005 (CIVIL JURISDICTION) BETWEEN: BARCLAYS BANK ZAMBIA PLC APPELLANT AND TRESFORD CHANDA RESPONDENT is (cid:9) Coram: (cid:9) Chibesakunda, Chitengi, JJS and Kabalata, Ag. JS on 201h July 2006 and 241 January 2007 For the Appellant: Mr. N. K. Mubonda of Messrs D. H. Kemp and Company For the Respondent: Mr. J. Banda of Messrs Wood and Company JUDGMENT Chibesakunda, JS, delivered the Judgment of the Court Laws referred to: 1. Rule 24 (1) and 2 and (b) of the Industrial Relations Act (Arbitration and Mediation procedure) Rules, 2002 Cap 269 This is an appeal against the Industrial Relations Court's refusal to set aside a default judgment on grounds that the Appellants had, knowing the date of mediation, not appeared before the Mediator and also, failed to appear before the court on a number of occasions. When the matter came for hearing before us, by consent of the parties, the appeal was upheld and the default judgment was set aside. The matter was sent back to Industrial Relations Court for continued hearing of the complaint. This court however reserved the ruling on costs of the appeal. This judgment is therefore confined to the issue on costs. In addition, however, we are of the view that this court must restate the law J2 on Rule 24(1) of the Industrial and Labour Relations Act (Arbitration and Mediation Procedures) Rules, 2002 (1). Before dealing with the law we have to restate the history of the matter. Briefly, the Respondent complained before the Industrial Relations Court against the Appellants that his summary dismissal was wrongful. He therefore prayed for reinstatement. He filed the complaint in September 2003. The Appellants filed their defence in December 2003 after receiving three reminders from the court. The matter was set for hearing on 20th January 2004. The Appellants did not appear on that day. So the matter was adjourned to 911, February, 2004. It would appear that the matter did not proceed on 9th February, 2004. It was rescheduled now to proceed on 23rd March, 2004. Again the Appellants did not appeal'. So the matter was adjourned to 221w April, 2004. In the process the matter was then sent to the mediators for the mediators to resolve the matter by mediation. According to the record the Appellants still did not appear before the mediators. The matter was then brought back to the Industrial Relations Court. The Industrial Relations Court looking at the history of the matter entered judgment in default. The Appellants then applied to the court to have the default judgment set aside. The court refused to set aside the default judgment on grounds that according to the record the Appellants had knowingly and unjustifiably failed to appear before the court on a number of occasions, hence this appeal before us. Before the consent to uphold the main appeal, the appeal centred on the actual interpretation of Rule 24 (1)(a) and 2(b) of the Industrial and Labour Relations Act (Arbitration and Mediation Procedures) Rules, 2002 (1). It provide that: "24. (1) Where a party fails to comply with the order of reference to arbitration under these Rules, the court or Judge shall— J3 (a) make a default judgment or an appropriate order against that party if that party is a respondent; or (b) strike out or dismiss the case where the party is the applicant or complainant. (2) (cid:9) For the purpose of this rule non -compliance shall include— (a) (cid:9) (b) legal representative's attendance of a mediation hearing without full instructions or authority from the party." It is obvious that Rule 24 as a whole applies both to mediation and arbitration as alternative dispute settlement mechanism. Our understanding of this rule is that, where a Respondent fails to comply with the order of reference to mediation, the court or judge has powers to either enter a default judgment or make an appropriate order as the court or judge deem just against the Respondent. (cid:9) Our view is that where the Respondent has filed a defence the court has a duty to proceed to trial. That is the only appropriate order the court can make. This is premised on the well-established rule that all contentious issues must be adjudicated upon by the court. Where the complainant fails to comply with the order of reference to mediation the same Rule 24 (1)(b) provides that the court • or judge has powers to either strike out or dismiss the case. Again, the court has, in such cases, power to weigh the facts before it to either dismiss or strike out. In the case before us, The Appellants were the Respondents before the Industrial Relations Court. The Industrial Relations Court directed that the matter go for mediation. They failed to comply with that order by non- appearance. But Mr. Mubonda has argued that they gave reasons for failure to appear before the Industrial Relations Court and for mediation. The court had powers to decide what order to make on such facts. In our view, the court wrongly opted to enter a default judgment when the J4 Appellants had filed in a defence. The court ought to have proceeded to trial even if the Appellants did not appear before the court. In addition we note that the court below in its ruling when it refused to set aside the default judgment made reference to the failure of mediation. This was a misdirection. Once mediation fails the court is under an obligation to proceed to trial. What ought to have been done by the court below is to have proceeded to hear the evidence from the complainant (now the Respondent) to weigh the evidence before rendering judgment. The court misdirected itself on this point. If the Appellant has not filed a defence the court would have been right to have invoked Rule 24 (1)(a) and would have entered judgment in default. Coming to the question on costs and looking at the record, we have no doubt in our minds that on a number of sittings, cataloged in the judgment of the court below, the Appellants failed to appear before the court, granted giving all sorts of reasons for non-appearing. We are satisfied therefore that the court tried to accommodate the Appellants. However, because of these many adjournments, which were sought by the Appellants, we hold the view that the costs of these adjournments had to be borne by the Appellants. We are also, satisfied that the case took and is still . taking long to be concluded, all because of these adjournments. Some of which are unwarranted. We, therefore, direct that the costs be borne by the Appellants to be taxed in default of agreement. L P Chibesakunda SUPREME COURT JUDGE P Chitengi SUPREME COURT JUDGE T A Kabalata Ag. SUPREME COURT JUDGE (cid:9) (cid:9)