Collins Kinghorn and 22 Ors v Trustees for Women for Change and Ors (SCZ/8/246/2011) [2013] ZMSC 91 (22 May 2013)

IN THE SUPREME COURT OF ZAMBIA scz /8/246/2011 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: COLLINS KINGHORN AND 22 OTHERS APPELLANTS AND TRUSTEES FOR WOMEN FOR CHANGE 1 ST RESPONDENT STAR FURNITURE MANUFACTURING COMPANY LIMITED 2ND RESPONDENT TRUSTEES FOR AFRICAN NATIONAL CONGRESS OF SOUTH AFRICA 3RD RESPONDENT Coram: CHIBESAKUNDA Ag/CJ, WANKI and MUYOVWE On 21 st November, 2012 and 20th February, 2013 and 22nd May, 2013 For the Appellants: Dr. J. Mulwila S. C., Messrs Ituna Partners For the Respondents: Mr. S. Sikota S. C., Messrs Central Chambers and Mr. M. Sikaulu of Messrs Sikaulu Lungu Mupeso Legal Practitioners RULING MUYOVWE, JS, delivered the Ruling of the Court. Cases referred to: 1. Emmanuel Mutale vs. Zambia Consolidated Copper Mines Limited (1993-1994) Z. R. 94 2. Rodwell Kasokopyo Musamba vs. M. M. Simpemba (T / A Electrical and Building Contractors} (1978) Z. R. 175 3. Collet v. Van Zyl Brothers Limited (1966) Z. R. 65 By Notice of Motion pursuant to Rule 48 (4) and (5) of the Supreme Court Rules Cap 25 of the Laws of Zambia, the Rl Appellants apply for an Order to vary or reverse the decision by a single Judge of the Court to discharge the Order to stay execution firming that the decisions on an affidavit filed by the 1st respondent's Counsel outside the rules of the court and without affording the appellants an opportunity to reply and awarding costs to the 1st respondent. The background to this matter is that on 8 th November, 2011 the High Court passed its judgment 1n favour of the respondents . The appellants appealed against that judgment. Further, the appellants on 14t h November, 2011 applied for a Stay of Execution of judgment and same was refused by the High Court. Thereafter, the appellants filed an application to Stay Execution of judgment on 15th November, 2011 before the single Judge of the Supreme Court. In his Affidavit in Support of the application for a Stay of Execution before the single Judge Dr. Mulwila deposed, inter alia, and specifically in paragraph 5 which reads as follows: "That a Notice of Appeal against the High Court judgment was filed on 10th November, 2011 and some of the grounds of appeal as revealed in the affidavit of Theresa Chaila Siwakwi in the affidavit annexed hereto as "JMM 1" have not been satisfactorily resolved or at all, namely- R2 ~ (i) The ability of Star Furniture Manufacturing Company Limited to function as a legal person when all its shareholders had died and no notice of personal legal representatives filed at Patents and Companies Registration Authority (ii) The capacity and or legality of the African National Congress of South Africa to hold land in Zambia (iii) Failure to declare null and void the sale of the remaining extent of subdivision 105 of Farm No. 110a Villa Elizabetha, Lusaka by Star Furniture Manufacturing Company Limited to the Trustees for Women for Change since Star Manufacturing Company Limited was dysfunctional." He further stated therein that he believed that there would be a miscarriage of justice if execution was not stayed pending the appeal. The single Judge granted an ex-parte Order of Stay on 16th e November, 2011 pending inter-parte hearing on 2 nd December, 2011. In his affidavit in opposition filed on 19th November, 2011 Mr. Sakwiba Sikota Counsel for respondent deposed, inter alia, that the plaintiffs were squatters, illegal tenants or occupants in flats belonging to the 1st respondent. He enumerated therein, the names of the appellants and the rental arrears owed by each R3 appellant up to August, 2010 . He referred to the ruling by Hon. Mr. Justice Phiri made on 8 th November, 2000 under Cause No. 2000 / HP/ 1028 in which the appellants were given 14 days to legalise their position as tenants and that Justice Phiri found no merit in the appellants ' quest to remain in the flats . That the matter came before Hon. Mrs . Justice Mwikisa who found that the appellants had lost the protection of the Consent Order due e to constant default in payments into court of the rentals or mesne profits. That Hon. Mrs . Justice Mwikisa in her judgment dismissed the appellants' case and later declined to grant a stay of execution of judgment. That the 1s t respondent has been denied the use of its property and rentals for over a decade and that this constituted a very grave financial strain on them. And that the appellants would not be able to meet the large monetary damages that are likely to become due by the end of the appeal process as they have over a decade failed to make even the monthly payments under the Consent Judgment given by the Supreme Court. According to State Counsel Sikota, the flats in question are deteriorating due to the fact that no maintenance is being undertaken over the same. Further, that the 1st · respondent should not be denied the fruits of the judgment. R4 The application was heard before the single Judge who after granting an exparte Order discharged the stay of execution, hence this Notice of Motion taken out by the appellants. At the hearing of the application Dr. Mulwila relied on his filed Heads of Argument. State Counsel advanced two grounds of appeal namely:- Cl 1. The Court's decision was firmed on misleading information given by Counsel for the 1st Respondent. 2. The Court awarded costs to the 1st Respondent notwithstanding the circumstances under which Counsel for the Respondent had prayed for costs. In support of ground one, Dr. Mulwila submitted that Counsel for the 1st respondent did not disclose to the Court that although the Affidavit was filed on 19th December 2011 it was only served on the appellants' advocates on 21 st December 2011 before lunch hour the same day when the matter was coming up at 1430 hours. He argued that, therefore, the appellants had no opportunity to file an Affidavit in Reply. He referred us to Rule 48 (2) which provides that: "Notice of Motion and copies of any affidavits and other documents filed shall be served on all necessary parties not less than two clear days before hearing." RS . . . That it is only in urgent cases that the filing or serving is reduced to less than two clear days before the hearing. State Counsel Dr. Mulwila contended that since Counsel for the 1st respondent did not comply with this rule, the Affidavit 1n Opposition was irregular and incompetent before the single Judge of the Court. That the single Judge should not have proceeded to hear the application on the basis that the 1st respondent had filed an Affidavit in Opposition. With regard to ground two , it was submitted that costs are awarded at the discretion of the Court and the general rule is that a successful litigant who has committed no impropriety in the conduct of the proceedings should be entitled to his costs. He cited the cases of Emmanuel Mutale vs. Zambia Consolidated Copper Mines Limited 1 and Rodwell Kasokopyo Musamba vs. M. M. Simpemba and Building Contractors2 • Dr. Mulwila argued that his learned friend would not in the first place have filed an affidavit in opposition on 19th December, 2011 when the matter was coming up for hearing on 21 s t December, 2011. That the rules require that such documents should be filed two clear days before the hearing date. That it was improper conduct on the part of Counsel for the 1s t R6 ~ respondent to have served the affidavit less than three hours before the hearing of the matter and proceeded to inform the Court that he had not received any reply from the appellants thereby implying that it was the appellants who were non compliant. He submitted that such conduct should attract the displeasure of the Court and should deprive the 1st respondent of entitlement to costs. Further, that where the Court is denied vital information, it is left without material on which to exercise its discretion and he cited the case of Collet v. Van Zyl Brothers Limited3 • Therefore, it was submitted that the single Judge did not have the discretion to award costs to the 1st respondent and that the decision ought to be reversed. On behalf of the 1st respondent, learned Counsel Mr. Sikaulu submitted that they were relying on the respondent's Heads of Argument filed herein. In response to ground one, it was submitted that the Court's decision was firmed purely on the evidence before it. Counsel submitted that the application before Court was made by the appellants who had applied for and obtained an ex-parte Order of Stay of Execution on 15th November, 2011 pending an inter-parte hearing which was scheduled for the 2 nd December, R7 pr 2011. It was pointed out that paragraph 5 of the Affidavit in Support of Motion sworn by Dr. Mulwila clearly shows that the appellants were fully aware of the inter-parte hearing date and that they failed to attend Court on 2 nd December, 2011 to prosecut~ their application. That no explanation was offered by the appellants for their failure to attend Court and that their lawyer was in the Country on 2 nd December, 2011 having arrived from the United Kingdom on 1st December, 2011 as stated in paragraph 6 of his Affidavit in Support of Motion. That nevertheless, the Court adjourned the matter to the 21 st December, 2011. Counsel pointed out that the appellants agrun failed to attend the hearing on 21 st December, 2011 without any explanation. And that from the Affidavit in Support of Motion sworn by Dr. Mulwila, in paragraph 8 he was fully aware of what had transpired at the hearing on 2 nd December, 2011 when the matter was adjourned to 21 st December, 2011. That the record of proceedings shows that the matter was adjourned to allow the 1st respondent to obtain instructions and there is no mention of a request to file an Affidavit in Opposition. It was argued that learned State Counsel Dr. Mulwila should have admitted that he R8 knew that the matter had been adjourned and he also knew the dates to which it had been adjourned. Further, that since the appellants did not attend the hearing on 2 nd December, 2011 they should have conducted a search in order for them to know what ha~ transpired at the hearing and not simply sit back with the knowledge that it was adjourned. It was submitted that it is not mandatory that one should file an Affidavit in Opposition in order to argue against an application. That a litigant is entitled to oppose an application purely based on law if he so desires. It was contended that the appellants' quest to rely on the late service of the Affidavit in Opposition, as an excuse for non attendance on 21 st December, 2011, should not be entertained. e That the appellants had every right to attend Court on 21 st December, 2011 and inform the Court of the late service and request for an adjournment to study the Affidavit in Opposition and reply to it. That paragraph 10 of the Affidavit in Support of Motion shows clearly that the appellants' lawyer only decided to attend Court after being informed by his secretary that she had received an Affidavit in Opposition. That this is when he rushed to his office to collect the documents and then to Court. It was R9 contended that the Court was within its rights to dismiss the application after the appellants failed to attend on 21 st December, 2011. Counsel cited Rule 71 (1) (a) of the Supreme Court Rules Cap. 25 which provides as follows: "Subject to the provisions of Rule 69, if on any day fixed for the hearing of an appeal- the appellant does not appear in person or by practitioner, the appeal may be dismissed." It was submitted that the appellants having being dissatisfied with the · ruling of the Court to dismiss their application could have invoked Rule 71 (2) which states as follows: "Where any appeal is dismissed, allowed, or struck out under the provisions of sub-rule (1), any party who was absent may apply to the Court for the re-hearing or hearing of the appeal as the case may be and where it is proved that there was sufficient reason for the absence of such party, the Court may order that the appeal be restored for hearing upon such terms as to costs or otherwise as it thinks fit." In response to ground two, it was submitted that it was trite law that costs are awarded to the successful party. That the stay of execution was dismissed by the Court and therefore, the Court rightly awarded the costs to the 1st respondent. As argued in ground one, the 1st respondent's Counsel did not mislead the Court. The appellants failed to attend Court to prosecute their application on two occasions on 2 nd December, 2011 and 21 st December, 2011 and the application was dismissed. Counsel argued that while it is conceded that there are exceptions to the general principle that costs are awarded to the successful party, the appellants failed to prove that their case fell within the exceptions. We have considered the Affidavit evidence filed herein; the submission by learned Counsel for the parties as well as the authorities cited. The record shows that the application for a stay of execution was filed on 15th November, 2011. The matter first came for hearing on the 2 nd December, 2011 for an inter-parte hearing following the granting of an ex-parte Order staying execution which was also granted on 15th November, 2011. On 2 nd December, 2011 neither the appellants nor their Counsel who were the applicants were in attendance. Indeed, as pointed out by Mr. Sikaulu, there was no explanation as to the absence of Counsel on 2 nd December, 2011 R11 and yet he was aware of the date having earlier obtained the ex parte Order. The record shows that on 2 nd December, 2011 State Counsel Sikota submitted thus before Court: "There are no appearances for the other parties, we were going to ask for an adjournment, our instructing client is out of the country and gets back on 10th December 2011 the appellants will not be prejudiced since they have an ex-parte for stay pending inter-parte hearing." The matter was then adjourned to 21 st December 2011 . Again, there was no appearance on behalf of the appellants and neither was any explanation offered by the appellants. On 21 st December, 2011 again neither the appellants nor their Counsel appeared. The record shows that Major Lisita in addressing the Court said: "This is an application by the appellants for a stay, our position is that we oppose the application and rely on our Affidavit in opposition filed on 19th December 2011 and we have not received any reply from the appellants. We solely rely on our affidavit in opposition, we pray that the application be dismissed and we ask for costs." The main thrust of Dr. Mulwila's argument is that his learned friend gave misleading information to the single Judge which led to the discharge of the ex-parte Order of Stay. R12 We intend to deal with both grounds of appeal simultaneously. The appellants contend that because the 1st respondent served the affidavit in opposition on the appellants' Counsel on 21 st December 2011 shortly before the hearing at 14:30 hours, the affidavit is irregular and should not have been considered by the single Judge . We do agree with Dr. Mulwila that late service is unacceptable and a breach of the rules . II However, as pointed out by Mr. Sikaulu this argument is not tenable in this case having regard to the circumstances of the case. It goes without saying that it was the duty of Counsel for the appellants and/ or his clients to make an appearance before Court. Strangely, they chose not to make an appearance and in addition failed to render an explanation as to their absence. Certainly, Dr. Mulwila was aware that the matter was coming up e for hearing on 2 nd December 2011 and he was aware that the matter was set for hearing on 21 st December 2011 but again he failed to attend. Indeed, having failed to attend, the best he should have done was to search the record to discover what could have transpired in his absence. However, the record shows that he did not do this . In his affidavit in Support of the Notice of Motion Dr. Mulwila deposed as follows: R13 ~ 5. That the application was granted on 15th November 2011 and returnable for inter-parties hearing on 2 nd December, 2011 at 08:30 hours. 6. That on 19 th November 2011 I went to London for eye surgery and was not certified fit to fly back with stitches until 30th November 2011. I arrived in Lusaka on 1st December 2011. 7. That I checked with my office and I was informed that none of the Respondents had filed an affidavit in opposition to the application. It 8. That I later came to learn that Counsel for the 1st Respondent had gone to Court and applied for an adjournment in opposition. file an affidavit in order to 9. That I waited to be served with the affidavit in opposition until 16th December 2011 when we officially went on Christmas recess up to 9 th January 2012. 10. That on 21 st December 2011 at about 12:00 hours I received a phone call from my Secretary who informed me that she had received the affidavit in opposition from Central Chambers and that the matter was to be heard at 14.30 hours the same day. 11. That I rushed to the office to collect the papers and was driven to court since I still had stitches in the eye. 12. That I arrived at Court at 14.37 hours and I was told by the Marshal that the Court had risen and would make a ruling. 13. That we re-opened our offices on 9 th January 2012 and on 10th January 2012, I attempted to file the Appellants' affidavit in reply but I was told by the Marshal that I could not since ruling was to be delivered 00: 12th January 2012. 14. That on 11 th January 2012, I filed a Notice of Motion to arrest judgment but the Court declined R14 to hear the motion but instead handed me a ruling discharging the order to stay execution and condemning the Appellants in costs. 15. That the 1st Respondent did not file the affidavit in opposition on time nor was the same served on me on time. We agree with Mr. Sikaulu that State Counsel Dr. Mulwila's attendance on 21 st December 2011 should not have been dependant on whether the respondent had filed an Affidavit in Opposition or not especially that he was Counsel for the appellants whose application for a Stay was pending before the single Judge. It is our firm view that Counsel for the appellant should have been in attendance on 21 st December, 2011 and in the absence of any explanation and since both parties had filed their affidavits, the Court was in order to proceed to hear the matter and reserve the matter for Ruling. In paragraph 9 of his Affidavit State Counsel Dr. Mulwila stated that he waited to be served with the Affidavit in Opposition until the 16th December 2011 when his firm officially went on Christmas Vacation until 9 th January 2012. We must state here that although on the Legal Calendar we do have Christmas Vacation, the Court Registries and the Courts remain open throughout and this fact is known to the legal fraternity. We are RlS taken aback at the same time that learned Counsel for the appellant would opt to 'wait to be served' with an Affidavit in Opposition. The Affidavit in Support shows that Dr. Mulwila after arriving at Court at 14:37 hours on 21 st December, 2011 did not take any step in this matter until 9 th January 2012 when he attempted to file the appellants' reply but was told that the Ruling was set to be delivered on 12 th January 2012. This ti confirms that even after arriving late on 21 st December, 2012 he did not make a search to find out what transpired during the hearing in his absence . Having considered the circumstances of this case, we do not find any merit in this application. It is evident to us that the application was dealt with on its merit and the law relating to applications for stay of execution was appropriately applied and 41 this was precisely the matter before the single Judge . Coming to the question of costs, as conceded by Dr. Mulwila, it is trite that costs are granted at the discretion of the Court and abides the outcome. State Counsel Dr. Mulwila failed to attend Court and the Court proceeded in absence of any explanation regarding his non-attendance. State Counsel should have ensured that he attended the proceedings with or without R16 ~ the Affidavit in Opposition and he should not have waited for the vacation to end before attempting to take further steps. In this case, the appellants' application for a stay was dismissed and costs were awarded to the 1st respondent. We find no ground to reverse the Order of the single Judge on the stay. However, coming to the question of costs, we note that the 1st respondent filed the affidavit in opposition late and for this reason, it should not benefit from its default. We set aside the order as to costs made py the single Judge. Costs in the cause. ((J L. P. CHIBESAKUNDA ACTING CHIEF JUSTICE {A_,;L . ....................... . .· . M. E. WANKI SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE I R17