Caltex Oil Zambia Ltd v Teresa Transport Ltd (SCZ 8 193 of 2000) [2001] ZMSC 105 (5 July 2001)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) SCZ APPEAL NQ.8/193/2000 CALTEX OIL ZAMBIA LIMITED APPELLANT AND TERESA TRANSPORT LIMITED RESPONDENT Coram: Sakala, Chaila and Chibesakunda JJS 16th May, and 5th July, 2001 For the Appellant: Ms. C. Makungu of Makunga and Company. For the Respondent: Dr. J, Soko of Josias and Company. Sakala, JS., delivered the Judgment of the Court. JUDGMENT Case referred to: 1. The University of Zambia Council Us Jean Margaret Calder SCZ Judgment No. 5 of 1998 (Unreported). This is an application by way of a motion asking this court first, to set aside orders of a single judge dated 25lh January, 2001 and 8th March, 2001, dismissing the applicant’s appeal for want of prosecution and refusing the applicant’s application for stay of execution of a single judge’s “unless” order and the judgment of the High Court, respectively. Secondly, the motion seeks an order to reinstate the appeal and thirdly the motion seeks an extension of time within which to file the record of appeal. The motion was supported by several affidavits. There was also an affidavit in opposition. When we heard the motion, we ordered that there be a stay of judgment and any orders pending our judgment in this motion. We also ordered that money that was withdrawn after being paid into court be paid back into court until further order. The history of this matter leading to the present application is most unfortunate on the part of the parties themselves who presumably did not know what their respective advocates were doing. Different applications involving the same matter were filed and heard in the High Court : J2 : and in the Supreme Court at times simultaneously resulting in conflicting orders being made. We have no doubt that a lot of injustice has been caused in this matter some of which would have been prevented by both counsel who appeared in the original proceedings, if only, they had been patient and understood the procedures to be taken at every stage. The trial court too, contributed to the injustice caused by not exercising its discretion judiciously. The sequence of events leading to the motion are that, on 14th June, 2000, the respondent obtained a judgment after the learned trial judge only heard evidence of the respondent. The applicant was, however, represented when two witnesses gave evidence on behalf of the respondent. The matter was adjourned for continued hearing. The applicant and its advocate did not appear on the adjourned date. The advocate for the respondent on the continued hearing date closed the case for the respondent and applied for judgment to be entered in favour of the respondent. The court complained that there ought to be a limit to adjournments. Yet, the record shows that there was only one adjournment when trial commenced. The trial court entered judgment for breach of contract, resultant loss of business and the amount of money allegedly withheld by the applicant. On 15lh June, 2000, a day after delivery of judgment, without leave of court, the respondent took out a writ of fifa against the applicant and the bailiffs seized the applicant’s property and tools. On 16th June, 2000, the applicant’s application for stay of execution of judgment of the High Court was refused by the trial court. But the applicant was granted leave to appeal to the Supreme Court on condition that a sum of K30,000,000 as security of costs was paid into court. The payment of security of costs was ordered at the instance of the court. On 16th June, 2000, the applicant filed notice of appeal to the Supreme Court. On 21 June 2000, the applicant obtained, before a single judge of this court, an exparte order staying execution of the High Court judgment of 14th June, pending inter-partes summons for stay of execution. On 27th September, 2000 following the inter-partes summons, the applicant obtained a stay order pending appeal and that the record of appeal be filed within 110 days from the 27th of September “failing which the appeal shall stand dismissed.” However, for an explained reasons, on 23rd November, 2000, instead of preparing and filing a record of appeal, the applicants’ advocates filed in the Supreme Court, summons for stay of further proceedings in the appeal in the Supreme Court pending the determination of the applicant’s application for review that was now pending for determination in the High Court of Zambia. We can only infer from this move that by this application the applicant was withdrawing the appeal in the Supreme Court in terms of Order 39 of the High Court Rules. According to the record, while the notice of appeal to the Supreme Court was pending, and while the order of stay pending appeal and extension of time were in force in the Supreme Court, the applicant, on 18th October 2000, obtained an exparte order for leave for extension of time within which to apply for review of the High Court judgment of 14th June pursuant to Order 39 of the High Court Rules on condition that the applicant paid all costs incurred by the respondent up to delivery of judgment and, that such costs should be agreed by the parties and in default there to be taxation. The costs were not agreed. According to the record, there is an application for taxation still pending. These proceedings in the High Court and the order extending time within which to apply for review were obtained when the notice of appeal to the Supreme Court was in force. This, in our view, was highly irregular on the part of the applicant’s advocates. The correct procedure should have been to withdraw the notice of appeal in the Supreme Court first before making any application in the High Court. After the applicant obtained the order in the High Court, both advocates engaged themselves in prolonged correspondence on the costs to be paid as ordered by the High Court. The advocates never agreed on the exact costs but agreed to go for taxation. In the meantime, for unexplained reasons, the application of 23rd November, 2000 to stay further proceedings before the Supreme Court pending hearing of an application for review before the High Court was never set down for hearing and was never brought to the attention of a single judge. As a result of this so called inadvertence, the respondent obtained an order in the Supreme Court on 25th January 2001 dismissing the appeal for want of prosecution in the absence of the applicant as : J4 : the applicant had not filed the record of appeal within 110 days granted by the courts “unless” Order. It is hard to believe that the advocates for the respondents applied to have the appeal dismissed without the knowledge of the applicant’s other applications both in the Supreme Court and in the High Court. On the other hand, on 31st January 2001, six days after the appeal was dismissed by the “unless” order of the single judge, the applicant obtained, in the High Court, a stay of execution of the High Court judgment of 14th June, 2000. Yet, the same High Court had on 16,h June, 2000 refused to stay execution of its very judgment. To complete the bizarre story of the endless applications and orders, on 6th February 2001, the single judge made the following order:- “This is an application for Stay of Execution of my order signed on 25th January, 2001 which was as a result of my “unless” order made on 27l1' September, 2000 in which the Applicant was given 110 days, within which to file the record of appeal, failure to which the appeal would be deemed dismissed. As on 25th January, 2001 the record had not been filed and Counsel for the Respondent applied for and obtained a formal order dismissing the appeal. In the meantime, the Applicant filed on 23r<l November, 2000 Summons to stay proceedings in the Supreme Court pending the determination of the application in the High Court for review. These Summons were not brought to the attention of the Court as they were not on the file when the formal order dismissing the appeal was signed. The question is whether this is fresh evidence within the meaning of Section 25 of the Supreme Court Act. I doubt this. Since the Applicant has made a fresh application before the full Court for them to file record of appeal out of time, it appears that my “unless” order is been contested It will be fair that execution arising from “unless” order is stayed pending the determination of these summons inter-parties. The stay of execution is therefore granted. Inter-Parte Summons on stay of execution of my order is to be heard on 16lh February, 2001 at 09.30 hours. ” In a detailed ruling dated 8lh March, 2001, the single judge stated in part:- “/Is indicated in my short ruling of 6rh February, 2001 in which I granted exparte order staying execution that my “unless” order was being contested and I wanted to : J5 : hear the parties on whether I had jurisdiction to reopen the appeal. I have no jurisdiction. The “unless” order having come into effect, there is nothing pending before the court. I therefore dismiss this application. The exparte stay of execution order granted on 6,h day of February 2001 is hereby discharged ” The full court is now asked to set aside the orders of25111 January, 2001 and 8th March, 2001. We have deliberately delved into great detail in examining the history of this motion to demonstrate the injustices that were caused to the applicant’s case largely by their previous advocates which injustices are also attributable to the present advocates of the respondent. The scenario that emerges from the sequence of events leading to the motion before us is one of a multiplicity of applications before a single judge followed by orders running parallel with a multiplicity of applications and orders in the High Court. There is no doubt in our view that what transpired before a single judge of this court and in the High Court is a classic example of thorough abuse of the court process by senior members of the Bar. We strongly disapprove this conduct. On behalf of the applicant, Ms. Makungu argued two grounds in support of the motion. The first was that the applicant’s previous advocates had acted contrary to the applicant’s instructions by failing to file a record of appeal in time, by making improper applications relating to review of the High Court judgment dated 14th June, 2000 whilst the appeal was pending and subsequently, by making an irregular application to stay the Supreme Court proceedings pending review. Counsel explained that the applicant became aware of this state of affairs only after the appeal was dismissed. The second ground is that the applicant is desirous of correcting the defects in the proceedings. The applicant is also desirous of appealing against the default judgment made by the High Court on 14th June, 2000. The specific order we are asked to reverse was couched in the following terms “ORDER DISMISSING APPEAL FOR WANT OF PROSECUTION : J 6 : UPON THE RULING made by this Court on 27th September and the Appellants having not filed the Record of Appeal within 110 days granted by “UNLESS" Order. It is HEREBY Ordered that the Appeal herein stands dismissed for want of prosecution." We heard arguments on behalf of both parties on the jurisdiction of this court to extend or abridge the period within which a person is required or authorised to do any act in any proceedings. We also heard arguments on the effect of an “Unless” order. On account of the view we take of this motion, we do not intend to review the submissions in great detail but simply to allude to them where relevant. This motion was made pursuant to Section 4(1 )(b) of the Supreme Court Act and Rule 48(4) of the Supreme Court Rules. Section 4(1 )(b) reads:- 4. A single Judge of the Court may exercise any power vested in the Court not involving the decision of an appeal or a final decision in the exercise of its original jurisdiction but- (b) in civil matters any order, direction or decision made or given in pursuance of the powers conferred by this section may be varied, discharged or reversed by the court. Also Rule 48(4) reads as follows:- (4) person aggrieved by any decision of a single judge who desires to have such decision varied, discharged or reversed by the Court under paragraph (b) of section four of the Act, shall in like manner file before the hearing by the Court three extra copies of the proceedings, including copies of any affidavits filed by any other party prior to the single judge’s decision, for the use of the Court ” In the case of The University of Zambia Council I's. Jean Margaret Calder,(I), we considered Section 4( 1(b) and Rule 48(4). In that case, after several extensions of time within which to file the record of appeal, the applicant asked for a further extension of one week. A single judge made the following order. : J7 : “/« the interest of justice the appellant is granted 14 days within which to lodge the record of appeal failure which the appeal shall stand dismissed with costs. ” Forty-nine days after the extension of fourteen days, the appellant appeared before a single judge again asking for leave to appeal to the full court. The application was refused. The appellant applied to the full court in terms of Section 4 of the Supreme Court Act and Rule 48(4). We pointed out in that case: “that for a litigant to take advantage of these provisions, he must, in the first place apply to the full court within, but before the expiry of the extended period by a single judge when the appeal is pending by virtue of the extension order. ” The application in that case was unsuccessful. Ms. Makungu put up spirited arguments in which she vehemently submitted that if the appeal is not reinstated, then injustices will have been done to the applicant. She submitted that already injustice had been done in that the High Court Judgment of 14,h June 2000 was essentially a default judgment, whereby an appeal is likely to succeed. She pointed out that the damages awarded had not been proved and the interest ordered was excessive. She further pointed out that execution of judgment was not stayed. Thus, a sum above that claimed paid into court had been withdrawn without the leave of the court. We have considered the sequence of events leading to the present motion. We take note that the applicant had been granted 110 days from 27th September 2000 within which to file the record of appeal. Before the expiry of 110 days, the applicant, on 23rd November 2000, applied to a single judge for stay of proceedings pending determination of an application for Review of Judgment before the High Court. In essence, this application amounted to withdrawal of notice of appeal. (See Order 39 of the High Court Rules). What, however, transpired is that this application was not and has not been determined by a single judge. Equally, the application for review by the High Court was not and has not been determined. On the other hand, the High Court granted stay of execution of its judgment which in effect had already been executed. The scenario is that there was, before dismissal of the appeal for want of prosecution, an application before a single judge to withdraw the appeal. There was : J8 : also an application before the High Court to review its own judgment. All these applications were filed before the expiry of the 110 days within which to file record of appeal. We cannot say what the rulings would have been in these separate applications before two different courts. What is certain, however, is that if both applications would have been against the applicant in both courts, the applicant would still have had the opportunity to file the record of appeal which was denied because the two separate applications before the separate courts were not heard. Although the lawyers were at fault by not taking advantage of the extended period to file the record of appeal, there is here a case of overwhelming injustice which was not in the Calder case. We are therefore inclined to bend over to ensure that justice is not only done but it is seen to be done to the parties. Justice here will only be seen to be done if the matter is heard on merit as disclosed in the affidavits. We, therefore, propose to grant the motion but condemn the applicant in costs to be taxed if not agreed. We order that the appeal be reinstated to the cause list. The period within which to file the record of appeal is extended for 30 days from today’s date. The applicant, though successful, will pay the costs of this motion in this court. E. L. Sakala, SUPREME COURT JUDGE. M. S. Chaila, SUPREME COURT JUDGE. L. P. Chibesakunda, SUPREME COURT JUDGE.