Caston Tatira and Ors v Nyoni (SCZ Appeal 94 of 1997) [2000] ZMSC 152 (9 May 2000)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) SCZ APPEAL NO. 94/97 BETWEEN: CASTON TATIRA A. P. G. MOTORS & TRANSPORT 1st APPELLANT 2nd APPELLANT AND FLACKSON NYON! (Suing as administrator of the estate of Stephen Nyoni) RESPONDENT Coram: Chaila, Chirwa, Muzyamba, JJs 27th October, 1998 and 9th May, 2000 For the Appellants : Mr. W. M. Kabimba of Messrs. W. M. Kabimba & Company For the Respondent: Mr. D. Mwape of Chilupe & Company (Agents for Messrs. Fabian M’hango and Partners JUDGMENT Chaila, JS, delivered the judgment of the court. The delay in delivering this judgment is deeply regretted hut this has been due to circumstances beyond our control In this appeal the main issue is the appellants’ prayer that the matter be sent back to the lower court on the ground that the learned trial Judge did not afford the appellants an opportunity to be heard and be allowed to present arguments. - J2 - Briefly, the facts of this case were that the 1st appellant, an employee of the 2nd appellant, while on duty made a motor accident in which a relation of the respondent died. The respondent thereafter sued both appellants in his capacity as Administrator of the estate of the late Stephen Nyoni. The action was under Fatal Accidents Act. The Writ of Summons was served on the appellants and appearance was not entered by the appellants. The matter came before the Deputy Registrar and a judgment was entered against the appellants. Later when the appellants heard of the judgment they appealed to the Judge at Chambers who dismissed the appeal. Attempts to have the judgment reviewed were made but to no avail. The Deputy Registrar proceeded to assess the damages. There are mainly two grounds of appeal and these are: 1. The Appellants had a reasonable and justified excuse for not prosecuting their defence and that there was evidence on record for this justified want of prosecution of the defence. 2. That the learned trial Judge erred in law and fact in failing to consider and determine the question as to whether or not the Appellants’ defence in the action had any merits or any prospects of being successful. Mr. Kabimba, counsel for the appellants has argued that the two grounds are closely related. He has drawn our attention to the case of STANLEY MWAMBAZI Vs MORESTER FARMS LIMITED (1977) ZR 102. He has argued that the non­ prosecution of the defence by the appellants was not deliberate nor was it due to the willful neglect or delay by the appellants. He has argued that the learned trial Judge should not have dismissed the appeal on the grounds that there was a willful neglect or delay. He has argued that in order to do justice to the parties, it is the duty of the court to ensure that all matters in dispute before the court are determined by hearing both sides to the case. It was his submission that the appellants were not afforded an opportunity to be heard and allow arguments to be presented by both parties. He argued further that the matter was not heard and determined on merit and he urged the court to allow the appeal. - J3 - Counsel for the respondent Mr. Mwape heavily relied on his heads of argument but in his brief address to us he has contended that the learned trial Judge was correct in all respects in dismissing the appeal. On Mr. Mwambazi’s case, the counsel argued that there should be no unreasonable delay and no mala fides. In this case he argued that the delay was very unreasonable on the part of the defence and since there was unreasonable delay, the appellants should not be given any favourable approach and he urged the court to dismiss the appeal with costs. In his written heads of argument, Mr. Mwape has given detailed history of the case which has shown that the Deputy Registrar had given a lot of adjournments in order to allow the appellants appear. The learned appellate Judge in her judgment said: “I have had the occasion to look and peruse the case record and the decision of the Deputy Registrar. I entirely accept the decision of the Deputy Registrar and uphold it as correct I agree with the Deputy Registrar that the defendants were given more than ample time in which to prosecute their defence. They slept on their rights”. The history of the case clearly supported the views of the learned appellate Judge. The case commenced in 1988. According to the evidence, the Writ of Summons was served on the appellants. No appearance was entered. The matter went to the Deputy Registrar. In January 1992 the Deputy Registrar noted: “No appearance having been entered by the defendant herein. It is this day adjudged that the plaintiff recovers compensation for damages for the death of the late Stephen Nyoni as prayed for in the Writ of Summons plus costs incidental to this action”. This order was made on 16th January, 1992. This Writ was issued on 3rd July, 1991 and was served on the appellants on 16th September, 1991. The judgment, as we have already said, was entered on 16th January, 1992. The signed copies had the date of 16lh January, 1991, but on the official stamp it is dated January 1992. It is quite clear that his judgment was entered on 16th January, 1992 and not 1991. From September 1991 to January 1992, - J4 - the appellants did absolutely nothing to defend themselves and not only did they not defend themselves, but also did not enter any appearance. The learned counsel for the respondent was definitely on a very firm ground when he argued that there was unreasonable delay and that they did not defend themselves. This case, in our view, should have taken not more than four years to complete. The facts clearly show that the appellants did not bother to enter any appearance or to defend themselves. This makes us agree with the counsel for the respondent that the appellants had no defence. We entirely agree with the decision of the learned appellate Judge that the appellants had slept on their rights and that makes us believe that they had no defence. The appeal, for the reasons we have given, cannot succeed. The appeal is dismissed with costs. M. S. CHAILA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURTJUDGE W. M. MUZYAMBA SUPREME COURT JUDGE