Beatrice Kapansa Bwalya & Another v Isaac Kasuba (Appeal 24 of 2007) [2007] ZMSC 42 (4 December 2007)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 24 OF 2007 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: BEATRICE KAPANSA BWALYA THOMAS BWALYA AND 1S1_ APPELLANT 2ND APPELLANT ISAAC KASUBA RESPONDENT 0 (cid:9) Coram: (cid:9) On 5th June, 2007 and 4th December, 2007. Mumba, and Musahbati, JJS and Kabalata, Ag. JS. For the Appellant: V. K. Mwewa of V. K. Mwewa and Company. For the Respondent: C. Magubbwi of Magubbwi and Associates. JUDGMENT Mushabati, JS., delivered the judgment of the Court. Cases referred to: 1. (cid:9) Water Wells Limited. Vs. Jackson [1984] Z. R. 98 1110 (cid:9) 2. (cid:9) Chibote Ltd and Others Vs. Meridian BIAO Bank Zambia Limited (in Liquidation) Appeal No. 7 of 2002 Legislation referred to: High Court Rules, Cap. 27-0.35 r 5 This is an appeal against the High Court ruling dismissing the appellants' appeal for want of prosecution. The matter came to the High Court by way of appeal against a Subordinate Court judgment. (cid:9) J 2 The history of this case, before the High Court, was that on 22' February, 2006, it came for hearing but at the request of the appellants' advocate it was adjourned to 22nd March, 2006. On this day both the appellants and their advocate failed to attend. It was adjourned yet to another date namely 191h April, 2006. On this return date both lawyers were absent so the matter was adjourned to 2nd June, 2006 but the Court did not sit on that date on account of a funeral. The hearing was however, set for 20th June, 2006. On this date the appellants and their advocate were not in attendance and so the counsel for the respondent applied for its dismissal for want to prosecution. When the appellants became aware that their appeal had been dismissed for want of prosecution they applied for the said order to be set aside but the application was dismissed. The main appeal remained dismissed. Leave to appeal against refusal to set aside the order of dismissal to the Court was granted, hence the appeal now before us. The application to set aside the order of dismissal of the appeal was supported by an affidavit which was sworn and filed into Court on 24th July, 2006. The appellants filed one ground of appeal. This ground of appeal is that: The Honourable Judge in the Court below erred in law and fact when he refused to set aside the order to dismiss action for want of prosecution obtained by the respondent in the absence of the appellants and or appellants' counsel. J 3 In support of this ground of appeal, the learned counsel for the appellants flied written heads of argument. He relied on the provisions of Order 35 r 5 of the High Court Rules Cap. 27 and also on the cases of Water Wells Limited Vs. Jackson (1) and Chibote Vs. Meridian BIAO Bank Zambia Limited (In Liquidation) (2). Counsel for the respondent also filed written heads of argument. Rule 5 of Order 35 of the High Court Rules states that: Any judgment obtained against any party in the absence of such a party may on sufficient cause shown, be set aside by the Court, upon such terms as may seem fit. In this case the appellants, in their affidavit filed into Court on 24th July, 2006, showed that they were not aware of the hearing date because their then counsel had not informed them of the hearing date. On the other hand the respondent's affidavit, in opposition, indicated that the hearing date, through a notice of hearing, was communicated to their former advocate. It is clear from the two affidavits that whereas the appellants' advocate may have been served with the notice of hearing, there is no evidence to show that the hearing date was communicated to the appellants. The appellants were therefore, being punished for the default of their advocate. Had the learned trial judge in the Court below properly directed himself and in view of the numerous decisions, in which we have said if no prejudice shall be caused to a party if the matter is let to proceed to trial then the defaulting party may only be condemned in costs and the matter must proceed to trial and be determined on merit, he would J4 have allowed :he application by the appellants. Some of the cases, to name but a few, are Water Wells Limited Vs. Jackson (1) and Chibote Limited and Others Vs. Meridian BIAO Bank Z. . Jmitei (iri Jquidation) (2) as cited by the leaned counsel for the appellants. We have to dajbt that this case falls within the ambit of our previou; decisions in 40 (cid:9) similar appeals. The rnattr not having been decided on merit we are persuaded to allo' the appeal. We order tnat the case be sent back before the same judge for hea:lng of the appeal on merit. The default was not deliberately caused by the appellants but by their roimer advocate and so we order that costs shall abide by the out-come of the main 'apl:)el in the Court below. F. N. M. tvlurnba SUPREME COURT JJDGE /Kkk ---- C. S Mushabati SUPREME COURT JUDGE 'T. A. bãIataT ACTINGSUPRME COURT JUDGE