Chen Caiping v Solomon Chemicals Enterprises Limited and Solomon Ng'ambi (2024/HP/0030) [2024] ZMHC 70 (22 February 2024)

Il THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDE AT LUSAKA (Civil Jurisdiction) BETWEE : 2024/ HP/ 0030 CHEN CAIPING PLAINTIFF AND SOLOMON CHEMICALS ENTERPRISES LThfITED SOLOMON NG' AMBI 1 ST DEFENDANT 2ND DEFENDANT Htd<Jre: llunourable Lady J11stice C. Chinyanwa Zulu in Chambers on 27" February For the Pluintiff: Mr T. S Milimo & Mr C. Menshi - A Cho/a Kafwabulula Legal Practitioners For tire Defendants: Mr Robert Clripeta & Mr Andrew Nkunika - Nkunika & Clripeta Legal Prnctitio11er RULING Dcli verL'd Ex-Tempore on Applica tion for a n Order to Set Aside Default Judgment of 6th February 2024 and Stay Execution J:ASES J,l. EFERRED T_O: 1. J ohn W . K Clayton V Hybrid Poultry Farm Limited (2006) ZR 70; 2. Edson Chenda V Satkaam Limited (1979) ZR 119; 3. Stanley Mwan1bazi V Morester Farms Limited (1977) ZR 108; 4. Govindbhai Baghibhai & Vallabhai Bagabhai Patel V Monile Holding Compan Limited (1993-1994) ZR 20; LEG ISLA TIO A ND OTHER WORK REFERRED TO: 1. Zambian Civil Procedure, Commentary & Cases, Volume 1 Page 409 . I have LISTENED ATTE TTVELY to the arguments a nd SERIOUSLY CO SIDERED the Affidavit evidence, List of Authorities and Skeleton Rl .... Arguments filed by the Parties. After CAREFUL COSNIDERATION, my decision is as follows. 2.0 THE LAWO SETTI GASIDE OFADEFAULTJUDGMENT 2. 1 The j urisdiction to set aside a default judgment is a discretionary one. As with any discretionary power, it ought to be exercised judiciously. The fo llowing au thorities arc instructive on the requirements that an applicant must satisfy for such discretion to be exercised in their favour. 2.2 The following guidance was given in the case Edson Chenda v Satkaan Limited (1979) ZR 119: - Before disposing of this matter, I would briefly refer to the merits of the a pplication to set aside judgment and grant unconditional leave to defend. It is qui te clear that it is open lo the defendant in an action to apply to the High Court to set aside j udgment in defau lt of a ppeara nce a nd to be granted leave to defend the action. A n v such appli ca tion must be bona fide. If the a wlicant satisfied the court that there was ood reason for ·ud ment to be set aside and leave ·veo to defend the court will no doubt grant the application. In obtainin leave to dcf end the defendant need no more than establish a triable issue namely, he should satisfv the co u11 that he has a defence onJ he merits. 2.3 ln the case Stanley Mwambazi v Morest er Farms Limited (1977) ZR 108 the Supreme Court guided as follows: - At this stage it is the practice in dealing with bo na fide interlocutory applications for courts to allow triable issues to come to trial despite the default of the parties. The silltation is different from that which obtains when there bas been a trial and there is default in connection with a proposed appeal because then it cannot be said that t he parties have been denied the rigbt to a trial. Where a party is in default he may be orde red to pay costs, but it is not in the interests of justice to deny him the right to have his case heard. l would cm hasise that R2 for this favourable treatment to be afforded to the a licant there must be no !!_nreas..9nable del. ID', no male fides and no imprQper conduct of the action on the art of the a Rl icanl. " 2.4 The above decision was upheld by the Supreme Court in the case Govindbhai Baghibhai and V allabhai Bagabhai Patel v Monile Holding Company Limited (1993-1994) ZR 20 wherein the Supreme Court went a step further and guided that it is of prime importance to consider whether there is a triable issue. The learned author of Zambian Civil Procedure: Commentary and Cases, Volume 1 at page 409 aptly summarises the authorities in Lhis respect as follows: - The Court has discretion to set aside or vary a default judgment if the defendant has raised a defence on the merits, or if the applicant has given a reasonable explanation of his fa ilu re to enter an appearance and file a defence w ithin the stipulated period. (Sec Patel v R ephidim Institute Limited (2011) Vol. 1 ZR 134) However, the proper disposal of an application to set aside judgment does not require the court conducting a miru-trial. In R oyal Brampton Hospital NHS Trust v Hammond, it was held that w hen deciding whether a defence has a real prospect of success, t he coun should not apply the sa me standard as would be applicable at trial , namely, the balance of probabilities on the evidence presented. Instead, the Court should also consider the evidence that could reasonabl be ex ected to be available at the trial. Another seminal case on the subject under discuss ion is the case Water Wells L imited v Wilso!J Sgm uel Jackson_ {l984) ZR_ 98 (SC). This was an appeal against the refusal b the H i h Court to set aside ·ud ent in default of defence. In a jrulgment delivered by the then Deputy Chief Justice Ngulube, it was pointed out that the Cgurt_Qf Appeal ifl_E ngliin<Lh.acJJieJcJ in LadJgJ_y_Siu that althou h it is usual on anJW. P.lication to set aside a default ·ud ment not onl to show a defence on the merits but also to Yive an explanation of the default), it is the defence on the merits which is the more imv.ortant to consider. It is therefore R3 3.4 The Defendants must file the Defence and enter appearance within the next 14 days. Delivered at Lusaka this 27th day of February, 2024 C. Chinyanwa Zulu JUDGE RS 3.4 The Defendants must file the Defence and enter appearance within the next 14 days. Delivered at Lusaka this 27th day of February, 2024 C. Chinyanwa Zulu JUDGE R5 3.4 The Defendants must file the Defence and enter appearance within the next 14 days. Delivered at Lusaka this 27th day of February, 2024 C. Chinyanwa Zulu JUDGE RS