Christopher Lubasi Mundia v Zambia Electricity Supply Corporation Limited (SELECTED JUDGMENT NO. 16/2016) [2016] ZMSC 292 (13 June 2016)

I SELECTED JUDGMENT NO. 1612016 (535) IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA .(C IVIL JURISDICTION) APPEAL NO. 09/2014 SCZ/8/043/2013 BETWEEN: CHRiSTOPHER LUBASI MUND/A APPELLANT AND Z,l\MBIA ELECTRICITY SUPPLY CORPORATION LIMITED RESPOI\JOENT CORAM: Hamaundu , Kaoma and Mutuna , JJS On ih June, 2016 and 13 th June , 2016 For the Appellant: No Appearance For the Respondent Mrs. N. C. Sikazwe - Chief Legal Officer JUDGMENT KAOMA, JS, delivered the Judgment of the Court. Cases referred to: 1. Bigsby v Oicksinson (1876) 4 CH. 0. P. 24 2. Stewart v The people (1973) ZR. 204 3. R v Knox 20 Cr. App. R. 96 4. !ndeco Estates Development Company Limited v Marshall Chambers - SCZ Judgment No. 4 of 2002 5. Rupiah Banda v The Post Newspaper - Appeal No. 4 of 2009 6. Costa Tembo v Hybrid Poultry Farm (Z) Limited - SCZ Judgment No . 13 of 2003 J2 (536) 7. Attorney General v Aboubacar Tall and another (1995- 97) ZR. 54 8. London Ngom a and Others v LMC Company Ltd and another - SCZ Judgment No. 22 of '1999 9 Collette v Van Zyl Brothers Limited (1966) ZR. 65 Legislation referred to: 1. High Court Rules, Cap 2 7 of the Laws of Zambia, Order 3 rule 2 2. High Cou,1 Act, Cap 27 of the Laws of Zambia, Section 27 3. Rules of the Supreme Court (White Boo!<) 1999 Edition 4. Black's Law Diction aty, 8th Edition, Bryan A. Garner, page 117 5. The Free Legal Dictionary. com 6. Leet/aw.com The appeal is aga inst the ruling of the High Court at Lusaka , dated 23 rd January, 2013 wherein the court allowed the respondent's application to arrest judgment and to call an additional witness to adduce fresh evidence. In this judgment, we shall refer to the appellant as plaintiff and the respondent as defendant as this is what they are in th e court below. The brief facts leading to this appeal are th at the plaintiff commenced an action by writ on 16th Febr-uary, 2005 claiming : damages for harassment, trespass and interference with his quiet enjoyment of his property by the defendant through its employees by disruption and or attempt to disrupt his electricity supply without just cause or excuse ; damages for mental strain and anguish arising from disruptions and or threatened disr·uptions of power supply to his house when there were no arrears or charges an d if there were, a fact denied , no bill was rendered by J3 (537) the defendant for the month s of November and December, 2004 before th e disruption and or threaten ed disruption on 4 th February, 2005; an inju nction to restrain the defendant from disrupting power at Plot 6498, Kasangula Road , Roma in the City of Lusaka; any other relief the court may deem fit and appropriate and costs . In its defence filed on 22 nd February, 2005 the defendant in the main denied the pla intiff's claims and averred, inter alia, that it was ju stified to issue a Powe r· Cut Notice to th e plai ntiff because the latte r's account was owin g at the material time in th e sum of K724 , 577. 93 inclusive of security deposit and reconnection fees. Following the close of pleadings , the matter was set down for trial. Trial commenced and closed on 3rd September, 2012. The plaintiff gave evidence on his own behalf after which he closed his case . Thereafter, learned counse l for the defendant, Mrs. Sikazwe , informed the court below that she was ca lling one witness and Nelson Mbilishi was ca lled as defence witn ess. At the end of the witness 's evid ence counse l fo r the defendant closed the defence case. Th e pla intiff was to file written submissions within ten days and the defe nd ant was to file the response wi thin ten days of rece ipt of the plaintiff's submiss ion s. A rep ly was to be fi led by the plaintiff J4 (538) within two days. The matter was adjo urned to 14th December, 2012 for judgment. On his pa,i, the plaintiff filed written submissions on 18 th September-, 2012. Meantime , on 1 ih September, 20 12 the defendant filed summons to arrest judgment and application for leave to call an additional witness for the defendan( pursuant to Order 3 rule 2 of the High Court Rules and , Section 27 of the High Court Act , Cap 27 of the Laws of Zambia. Th e application was supported by an affidavit sworn by Matembo Matongo Lisimba , the defendant's Chief Legal Officer. The evidence as revealed in the affidavit was that when the matter came up for trial , the defendant was unable to ca ll an additional witness because the intended witness was outside the jurisdiction ; that for the purposes of obtaining justice it was necessary that the delivery of judgment be arrested and leave to call an additional witness for the defence be granted; and that th e arresting of the judgment wou ld be beneficial to both parties as all th e relevant factual information would be availed to th e trial court. The affidavit evidence was further that some of th e evidence given by the plaintiff could only be rebutted by eye witnesses who act ually attended JS (539) to the alleged disconnection; that th e ca lling of the witnes s wou ld not adversely affect the plaintiff as he would be able to cross-examine the witness; and that it was in the interest of justice that all available evidence be brought befoi-e co urt. The defendant also filed skeleton arguments in support of the application quoting Order 3 rule 2 of the High Court Rules and Section 27 ( 1) of the High Court Act. The defendant also relied on the English case of Bigsby v Dicksinson 1 and the Zambian case of Stewart v The People 2 wherein the English case of R v Knox 3 was referred to , among others. On the other hand , the gist of the plaintiff's submissions was that it was erroneous for the defence to rely on Order 3 rule 2 of the High Court Rules when the case was closed awaiting judgment and that the application to reopen the case was a clear indication that the defendant was not serious in arranging its witnesses when the parties were given ample time to arrange their witnesses , the date for trial of 3rd September, 2012 , having been set on 26 th December, 2011 , in the presence of the parties. It was also argued that the defendant never indicated that it intended to call any further witnesses apart from Nelson Mbilishi and that if J6 (540) there were any exten uatin g factors , the court shou ld have been asked for an adjournment to call the last witness . It was further the plaintiff's contention that Section 27 (1) of the High Court Act, was totally inappli cab le as that pr ovision only applies whern the trial has not closed and that even where the provis ions of that section are applicable, the powers of the court are subject to just exceptions , meaning that there should be good reaso n to re-open a case that is closed . According to the plaintiff, wh ilst it may be the practice in criminal cases to recall witnesses , civi l courts am reluctant to allow pariies to have a second bite at the cherry , particularly when a party does so after realising that his case is not good, as in this matter. Further, that the Bigsby 1 case did not help the defendant's case as the holding in that case was that leave would be granted to a party even after his own case has closed to call fresh evidence when he has bee n taken aback by th e evidence of his oppone nt, but which was not the case here. It was also the plaintiff's contention that Stewart v The P eople 2 and R v Knox3 wer-e crimin al cases and the principles of calling a witness at the close of a case in a cri minal matter are totally different from those in a civil matter because in a cri minal matter the lib erty of the individual is at stake J7 ( 54 'I ) but in civil matters th e rules are strict in order to avoid parties taking each other by surprise. It was argued that, in thi s case, the decision by the defendant to close its case vvas done without any hindrance from th e couri; that the witness had never been named and no evidence was filed before the court to show that the witness was out of jurisdiction; and that the re-opening of the case would definitely prejudice the plaintiff's case. The pla intiff furthermore relied on the case of lndeco Estates Development Company Limited v Marshall Chambers 4 in which this Court upheld th e decision of the High Court not to reopen the case or order· a retrial despite a co mplaint that the judg e had premature ly closed trial and turn ed down an adjournment for the defendant to call one vita l witness On the affidavit evidence and submissions before her, the learned trial judge took the view that since judgment in the matter had not been rendered , it was still open for purposes of an interlocutory application; that justice could only be done if the defendant was allowed to adduce further evidence so that the court was properly armed with the information on which to render judgment ; and that the appellant wou ld not be prejud iced as he would be allowed to cross-examine the witness and also make J8 (542 ) submissions on the fresh evidence. Thus , the trial ju dge granted the defendant's application in the ru ling subject of this appeal. Dissatisfied with the ruling , the plaintiff has appealed adva ncing three grounds of appea l. The first ground alleges that the trial judge erred in law and in fact when she ruled that the re-opening of the case did not prejudice the plaintiff as he would be allowed to cross-examine the witness and make submissions on the new evidence. The second ground all eges that the trial judge failed to address the issues of the delay on the part of the defendant to file the application to arrest judgment in a reasonab le time and when there was no request by the defendant to call additiona l witnesses before the close of the trial. And the third ground attacks the tria l judge for not awarding costs to the plaintiff when th e application to re-open th e matter was done after nine days from th e close of th e trial and when the costs e . were prayed for by the plaintiff. Both sides filed heads of argument for and aga in st th e appeal. When the appeal came up for hearing, the plaintiff was not in attendance. However-, we have taken into account his filed heads of argument. Mrs. Sikazwe, the defendant's Chief l_egal Officer also reli ed on the defendant's filed heads of argument. We observe that the pa1iies have in the main J9 (543) repeated the arguments th ey mad e in th e court below It is therefore , not our intention to restate the argum ents in much detail. A nd because of the position we have tak en in this appeal , we Find ground two to be peripheral , and so we shall not waste our time in discussing it. The gist of the plaintiff's argum ent on ground one is that ther·e were no good or compelling reasons for re-opening the matter nine days after it was closed. It is the plaintiff's argum ent that th e prnvisions of Order 3 rule 2 of the High Court Rules do not refer to matters that are clos ed and that the provisions of Section 27 (1) of the High Court Act must be involved where there are good , exceptional and compelling reasons , which was not the case in this matter, especially that the defendant failed even to intimate to the trial court that it intended to call an additional witness . It is further the plaintiff's argument that leave to call additional witnesses should not be granted where it was known to th e defence at th e trial and failure to call such witness has not been satisfactorily explained . That by re-opening an old case which is eight years old and when the judgment was expected on 14t11 December, 201 2, prejudice cannot be denied and it wa s a misdirection by the trial court that th e appellant was not JlO (544) going to be preju diced merely because he was going to have an opportun ity to cro ss-exa mine the witness on the evidence given. As to ground three, the plaintiff's argument is that in view of the inconvenience and prejudice to him , and taking into accou nt the circ umstances of the cas e, costs ought to have been awarded to him. He has relied on the cases of Rupiah Banda v The Post Newspaper5 and Costa Tembo v Hybrid Poultry Fa rm (Z) Limited 6 to support th is argument \Ne are urged to allow th e appea l, with costs. In response to ground one , counsel for the defendant has submitted that the trial judge was on firm ground when she ruled that the re-opening of the case would not prejud ice the plaintiff as he would be allowed to cross -examin e the witness and make submissions on the new evidence. Accord ing to counsel , the general rule as can be derived from Order 3 rule 2 of the High Court Rul es, is that a court or judge has discretion to make an interlocutory order in a ca use where he or she is of the view that doing so will result in do ing justice, while Section 27 of the High Court Act also shows that an interlocutory order can be mad e at any stage. It is submitted that there were sufficient and justifiable grounds for the court below to order th e arrest of the judgm ent as the defendant showed in Jl l (545) its affidavit and ske leton arguments that it was necessary to ca ll an add itional witn ess for purposes of ensuring that justice is served ; and that the ruling appealed against is grounded on firm legal provision s as th e su mmoning or calling of a witness can be made at any stage of th e proceed ing s and as observed by the trial judge, proceedings are not concluded until the court passes judgment. Counsel for the defendant has supported the court's reliance on the cases of Attorney General v Aboubacar Tall and Za mbia Aitways Corporation Limited7 and London Ngoma and Others v LMC Company Limited and United Bus Company of Zambia 8 for the proposition that courts have inherent jurisdiction to make an interlocutory order at any stage of the proceedings if the same wou ld serve the pu rpose of justice. It was argued that the plaintiff's argument that the matter was closed and the parties were merely awaiting judgm ent is not supporied by law. Furthermore , counse l for th e defendant has argued that for a party to succeed in its ap plication to persu ade th e court to ca ll fres h evidence, the grounds relied upon sho uld be fundam entally novel in nature and should not have been covered already by earlier witnesses. As authority, she cited the case of Stewa,1 v The People 2 . J12 (546) It is also argued that although the court should be stringent in allowing for leave to arrest judgment, so as to ensure that matters do not go on ad infinitum, the court below was on firm ground as it was supported by both statutory and case law, and the evidence the defendant vvishes to bring to the fore is of a novel nature and is material to the case , in the absence of which the cou1i may arrive at a wrong conclusion. It is argued that the time being taken to conclu de the matter is being lengthened by the plaintiff's decision to appeal against the sound ruling of the court below. Regarding ground three , it is the defendant's argument that the court below was on terra firma for not awarding costs to the plaintiff as costs are in the discretion of the court and there is nothing that can be shown to indicate that the judge did not act judicially in not awarding costs to the plaintiff. The case of Coilette v Van Zyl Brothers Limited9 is relied on , It is 9 . also the defendant's contention that as a general rule , costs do follow the event and since the defendant's application was successful, no costs were due to the plaintiff. We are invited to dismiss the appeal with costs. We have considered the grounds of appeal and the arguments advanced by co unsel for the parties . ,6...s we see it th e main issu e for decision in this appeal is whether arrest of judgment was app licable to this J13 (547) case . The defenda nt's application to arrest judgment and for leave to ca ll an additional w itness was predicated on Order 3 rule 2 of the High Court Rules and Section 27 (1) of the High Court Act. The two provision s stipulate as follows: "Order 3(2) Subj ect to any particular rules, the co urt or a judge may in all causes and matters make an interlocutory order which it or he considers necessary for doing justice whether such order has been expressly asked by the person entitled to the benefit of the order or not." "Section 27(1) In any suit or matter, and at any stage thereof, the co wt, either of its own motion or on the application of any party may summon any person within the jurisdiction to give evidence or to produce any documents in his possession or power, and may examine such person as a witness and require him to produce any documents in his possession or power, subject to just exceptions." Before we proceed any furth er, we feel compelled to explain th e phrase or expression "arrest of judgment" as this phrase is not used in Order 3 rule 2, or Section 27 or anywhere else in the High Court Act and High Court Rules . Neither is the phrase used in the Rules of the Suprem e Court (White Book) 1999 ed ition. However, Black's Law Dictionary , 8 th edition at page 117 defines "arrest of jud gment" as the staying of a judgment after its entry, especially a court's refusal to render or enforce a judgm en t because of a defect appare nt from the record . It is further stated that at com mon law, courts have th e power to arrest judgm ent for intrinsic causes appea ring on the (548) rec ord , as when th e verdict differs materially from the pleadings or when the case al leged in the plead ings is legally insufficient (underlining ours for emphasis ). Furthermore The Free Legal Dictionary.com defines 'arrest of judgment" as the postponement or stay of an official decision of a court, or the refusal to render such a determination , after a verdict has bee n reached in an action at law or a criminal prosecution , because some defect appears on the face of the record that if a decision is made, would make it erroneous or revers ible (un derlining ours for emphasis). In addition, Lectlaw.com states that arrest of judgm ent tak es place when th e couri withholds judgment from the plaintiff on the ground that there is some error appearing on the face of the record which vitiates th e proceedings . In consequence of such error, on whatever part of the record it may arise, from th e com mencement of th e suit to the time when the motion in arrest of judgm ent is made, the co urt is bound to arrest the jud gment. It is, howeve r, on ly with respect to objections appa,-ent on the record, that such motions ca n be made . Th ey cannot, in general, be made in respect of formal objections (underlining aga in ours for emphasis only). J15 (549) In this case , the ma in reason given by the defenda nt in its affidavit in support for a1-rest of judgment was that when the matter came up for trial it was unable to call an add iti ona l witn ess as the intend ed witness was outside the jurisdiction , and so for purposes of obta inin g justice it was necessary that the jud gment be arrested and leave to ca ll an additional witness for th e defence be gran ted. However, at the heari ng of th e appea l, counsel for the defendant co nceded that she was se ized with conduct of th e matter at the material time and she was awa re of th e wit ness, in fact two witnesses that were outside the jurisdict ion , at the time she closed the case for the defence. And that she did not apply for an adjournment or inform the court below of the additional witn esses that were outside th e ju risd iction . As we have already said, in arrest of judgm ent, the cou ri withholds the pronouncement of the judgment , upon the app lication of a party to the dispute who claims to prove a material error in the record or tria l, which can make the entire proceeding invali d. However, this is not the case in this matter as the reasons adva nced by the defenda nt for arrest of judgment are without precedent. It is obv iou s to us that the defend ant had not shown , either in its affidavit in support or its ske leton argu ments any error or defect J16 (550) appearing on the face of the reco rd or in the trial of the matter which would vitiate the proceedings or if a decision is made would make it erroneous or reversible. IVluch as we agree with the argument by counsel for the defendant e that the provisions of Order 3 rule 2 of the High Court Rules are invoked by the court for purposes of doing justice, the pursu it of justice in terms of this provision must, however, be so ught within the law. The position we take , with regard to Section 27 of the High Court Act, is that the court below had no discretion after the close of the trial to arrest judgment and to allow the defendant to call a witness in the name of doing justice when there was 110 defect or error apparent 011 the record , and the cases of The Attorney General v Tall and others 7 and London Ngoma 8 were inapplicable as they dealt with joinder of pa,-ties after judgment. The danger of allowing arrest of judgment in circumstances such as in this case is that judgments would be constantly arrested for matters of mere form and upon a party realising that it has a ve,-y weak case. This kind of abuse should not be encouraged by the courts. Further still, the case of Bigsby v Oicl<:sinson 1 was not very helpful to the defendant. It is clear from that case that leave will be granted to a party • Jl 7 (551) even after his own case is closed to ca ll fresh evidence when he has been taken aback by the evidence of the opponent. Nothing of the sort happen ed in the prese nt case. The case of Stewart v Th e Peop!e 2 was equally unhelpful. It is also very clear fro m that case that leave to call fresh evidence even in a criminal case will on ly be granted in exceptional circumstances and in general will not be granted unless very good reason is given for not calling the witness at the trial . Further, leave will not be granted where the evidence was known to the defence at the trial and where the failure to lead it has not been satisfactorily explained , like in the case in cas u. Of course, what amounts to good reason is dependent on the facts of eac h case. Indeed , in R v Knox 3 , the court accepted inadvertence or oversight as good reason for the failure by the defence to lead the evidence of a vital witness at trial. Howeve r, that case is distinguishable from the present case In that case, the appellant was defended by cou nsel on a dock brief undertaken at short notice. Counsel was unabl e to read all the various scraps of paper handed to him by th e appellant and was consequently not aware of an importa nt witness named by the appe ll ant. For that reason , leave was granted to call the witn ess on appeal. ,. (552) In this ca se, as rightly argued by the plaintiff, the defendant had more than sufficient tim e to organ ise its witnesses and it cou ld have asked the court for an adj ournment, but did not. And contrary to the defendant's arg um ent that there were sufficient and ju stifiable grounds for the cou ri below to ord er the arrest of th e Ju dgment and that the ru ling appea led against is grounded on firm lega l prov isions , we find that ther·e were no exceptiona l circumstances or good reasons for not ca llin g the add itional witness or wit nesses when the defendant knew about the existence of th e witness or wit nesses before closing its case. Moreover, contrary to th e pos ition taken by th e court below that th e plaintiff would not be prejudiced as he would be allowed to cross-exam in e the witness and to make submiss ion s on the new evid ence , t he prejudice to th e plaintiff was real as th e matter had taken over eight years without being co nclud ed. In these circumstances, we co nclude that arrest of judgment was not app licable to this case and that it was a misdirection on the part of th e lea rn ed tria l judge to allow the defendant to ca ll an add iti ona l witness after the close of th e trial in the absence of exceptional circu mstances or good 11 9 (553) reasons and when there was nothing novel about the case . In the event, ground one succeeds. That being the case , ground 2 is inconsequential. We come now to gro und 3 of the appea l There is no dispute that in hi s su bmissions the plaintiff had asked the court below to dismiss the defendant's application 1.,vith costs as one without merit. However, the court allowed the application but did not pronounce itself on costs . As submitted by the defendant, costs are always in the discretion of the court and as a general rule costs follow the event. And since the defenda nt was successful in its application , there was no misdirection on the part of the trial court when it did not award costs to the plaintiff. Accordingly, we find no merit in ground three and we dismiss it. All in all , we allow the appeal for the reasons indicated in ground one. We set aside the order of the court below arresting judgment and allowing the defendant to call an additional witness to adduce fresh ev idence and we direct the court below to deliver the judgment forthwith. The plaintiff shall have the costs of appeal and the costs in the co urt below, to be taxed , if not agreed . E.rvr. HAMAUNDU SUPREIVIE COURT JUDGE J20 (554) . Ji~ • -=---~c_-._ - (_ ,'<-_--M C KAO MA--=-- ~ - S UP REM E COURT JUDGE