Country Pub Ltd and Zensof Investment Ltd v Tina Hadjipetrou (Sued in her capacity as Joint Administrator of the Estate of the Late Elizabeth Mzyece) and Anor (APPEAL 17/2019) [2019] ZMCA 300 (12 July 2019)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: couRT OF -- APPEAL 17 /2019 l z J ... 1 i , • I · 1 , _J 'Au// 1 REG!S~/ ., ~ - ~. 1st APPELLANT 2 nd APPELLANT COUNTRY PUB LIMITED ZENSOF INVESTMENT LIMITED AND TINA HADJIPETROU {Sued in her capacity as Joint Administrator of the Estate of the Late ELIZABETH MZYECE) 1 ST RESPONDENT WILLIAM MZYECE (Sued in his capacity as Joint Administrator of the Estate of the Late ELIZABETH MZYECE) 2ND RESPONDENT CORAM: Makungu, Mulongoti and Siavwapa, JJA, On 22nd May, 2019 and 12th July, 2019 For the Appellants: Mr. F. Besa of Messrs Friday Besa & Associates For the Respondents: Not in attendance JUDGMENT MULONGOTI, JA, d elivered the Judgment of the Court Cases referred to: 1. Ruth Kumbi v Robinson Caleb Zulu (2009) ZR 183 2. Leeds Zambia Limited v Mazzanites Limited selected Judgment No. 9 of 2001 (SC) 3 . Stanley Mwambazi v Morester Farms Limited (1997) ZR 108 (SC) 4. Samuels v Linzi Dresses Limited (1980) 1 ALL ER 803 Legisla tion a nd other works referred to: 1. The High Court Rules Chapter 27 of the Laws of Zambia 2. Rules of the Supreme Court, 1999, edition Th e appeal is against a Ruling of the High Court dismissing the appellants' case for wan t of p rosecution. At this stage it is necessary to say a little about the background of the case. The parties had their matters under cause num bers 20 15/HP/ 1495 and 20 15/ HP/2 156, consolidated. Prior to t h at, under cau se num ber 2015/HP/1495 , the parties had executed a consent order pendete lite which the appellant sought to set aside. The High Cou rt per Kondolo J , as he then was, directed the parties to file submissions upon which the Court would then deliver its Ruling. However, this was never done and the matter was allocated to Y angailo J , who set the 23 rd March, 2017, for a status conference. None of the parties nor their lawyers from three law firms , were in attendance that day i.e (Friday Besa Legal J2 Practitioners, Dindi & Co and Nicholas Chanda Associates). No reasons for non attendance were tendered. The matter was accordingly struck out from the active cause list, with liberty to restore within 21 days, failure to which it would stand dismissed for want of prosecution. After more than 21 days no application for r estoration was made. On 8 th May, 2017 a formal Order was drawn up by the Court dismissing the matter for want of prosecution. On 10th May, 2017 the appellants' co- advocates, Messrs Friday Besa Legal Practitioners, applied for review of the Order dismissing the matter pursuant to Order 39 of the High Court Rules; on grounds that he was not aware of the hearing date of 23 rd March, 201 7. After he became aware that the matter came up on 23rd March, 2017, he attempted to conduct a search on the r ecord. However, s everal efforts to conduct a s earch were futile . He was informed that the file was with the Judge p ending a Ruling. Unknown to him the matter was eventually struck out a nd then dismissed. He further d eposed that the Court was not aware that h e was attempting to do a search and thus this was material for review of the Order of dismissal, in line with Order 39 of the High Court Rules . J3 The respondents opposed the application on the grou nd that there was no fresh evidence bu t an 'Unless Order' striking out the matter, with liberty to restore w ith in 2 1 days. According to the respondents' counsel, the correct procedure was for the appellants to apply for extension of time as elucidated by the Supreme Court in its decision in Ruth Kumbi v Robinson Caleb Zulu 1 . After hearing the application and considering the respective arguments, the court below fou nd that the Ruth Kumbi v Robinson Caleb Zulu 1 case was distinguis h able from th e matter before it. The Court reasoned that the appellants, in this case, breached a peremptory Order. It found that the reasons for counsel not being able to access the Court record were inexcusable because he could have accessed the record through the marshal or he could have had a print out of the proceedings made for h im as the proceedings were scanned on 23 rd March, 20 1 7 . The court below concluded that the appellants' counsel exhibited a complete disregard of the Rules of the Court, laxity, casual or cavalier approach towards prosecuting the matter. Consequently, the application to review or set aside the Order dismissing the matter was refused. J4 Dissatisfied, the appellant appealed to this Court on the following ground s: 1. The learned Judge in the court below erred i n law and fact when it held on page 10 that the parties herein failed to demonstrate the sufficient grounds for seeking the remedy when the evidence on record indicates that the submissions by counsel that the order striking out the matter was an unless Order and failed to take into account the prerequisite of giving effect to an unless Order which is requirement of evidence before the Court that the party should be directed to perform the specific act. 2. The learned Judge in the court below erred in law and fact when it failed to take into account that the nature of the matter requires determination of the matter on merit which opportunity the Court did not seize and /or take advantage of the same to enable the parties conduct their full trial. Mr. Besa, who appeared for the appellants, also filed heads of argument in support of the appeal. In ground one, it is argued that one of the requirem ents of the Rules of Court, regarding an 'Unless Order', is that it does not take effect unless there is evidence that the party being directed to perform a particular task is aware of it. JS According to counsel, after the court below was allocated the matter, it set the 23 rd of March, 2017 for a status conference. However , none of the parties were in attendance that day and none confirmed receiving the notice of hearing, which was allegedly placed in pigeon holes of the respective law firms. This, therefore raised a strong possibility that the notices were not placed in the pigeon holes b y the m a rshal, as alleged. It is the further submission of counsel that according to Order 3/2/ 12 of the Rules of the Supreme Court (RSC), it is mandatory for a Court to demonstrate that the party was aware of the date by proving that the party had been served, which the court b elow did not do . Additionally, that the m atter was coming up for the first time before the court b elow. Yet , at her first opportunity she struck it out and subsequently dismissed it. The conclusion that the a ppellants' counsel had shown a complete disregard of the Rules of the Court, laxity, casual or cavalier a pproach towards prosecuting the matter, was reached without any supporting evidence on record. The cases the Court cited to justify h er d ecision not to h ear the matter on m erit, are inapplicable. In Leeds Zambia Limited v Mazzonites Limited2 , the Supreme Court refused to set aside a J6 Judgment obtained without hearing the defendant on account of such persistent defaults and lack of meaningful defence. In casu, there is no evidence of persistent default. In ground two , it is argued that it 1s a long established position of the law that matters should be determined on their merits, so as to bring finality to litigation. The case of Stanley Mwambazi v Morester Farms Limited3 was relied upon that: "(ii). It is the practice in dealing with bona fide interlocutory applications for Courts to allow triable issues to come to trial despite the default of the parties; where a party is i n default, he may be ordered to pay costs, but it is not in t he interest of justice to deny him the right to have his case heard. (iii ) For t his favourable treatment to be afforded, there must be no unreasonable delay, no malafides and no improper conduct on the action on the part of the applicant." Thus, by dismissing the matter for want of prosecution, after the appellant did not restore it and refusing to review her Ruling, the court below departed from this well established position of the law. The reasoning by the court below that the appellants' failure to access the file because it was in the Judge's chambers was inexcusable because counsel could have accessed it through the J7 marshal or obtained a print out from the registry, is unjustified. According to counsel, it is not the du ty of cou nsel to handle files. But for the judiciary's registry staff, to liaise with the marshal to the Judge, to let counsel access the record from the Judge's chambers, upon failure to find it in the High Court Registry. The application for review was not delayed, as upon becoming aware of the Order dismissing the matter, the appellants promptly applied for review, two days later. There was sufficient ground for the Court to review the Order dismissing the action and set it aside, restore the matter and allow it to be heard on merit. The respondents did not file arguments in response and did not attend the hearing of the appeal. We have considered the arguments by counsel and the Ruling subject of the appeal. The cardinal issue the appeal raises, as we see it, is, what happens to a case after failure to comply with an 'Unless Order' within the stipulated period, in this case 21 days? In the case of Ruth Kumbi v Robinson Caleb Zulu 1 the Supreme Court stated the procedure to adopt after failure to comply with an 'Unless Order' as follows: J8 " ... In Zambia where the 'Unless Order' has been made, and there has been failure to comply with the order within a specified period, that does not necessarily mean that the action is dead or defunct or that the Court is thereby deprived of the jurisdiction or power to extend time for doing a specific act within a specified time .. " Furthermore, that: "The Court has power or jurisdiction to examine the reasons the applicant had of not complying with t he 'Unless Order' and use its discretion to e ither grant leave or reject the application. " The Supreme Court actually revis ited its earlier decisions on "Unless Orders". It observed that the position at law in Zambia as well as in England up to 198 1, was that failure to comply with the conditions stipulated in an 'Unless Order' resulted in a case being dismissed, and as such not capable of restoration to the active cause list. In changing its earlier decisions, the Supreme Court followed the English case of Samuels v Linzi Dresses Limited4 per Roskill L. J that: " ... the law today is that a court had power to extend the time where an "Unless Order" has been made but not complied with but that is a power, which should be exercised cautiously." J9 , .. Thus, following the Ruth Kumbi v Robinson Caleb Zulu1 decision, the procedure is that one has to apply for extension of time, after failing to comply with the time stipulated in an 'Unless Order' This is also in line with Order 3/5/9 of the Rules of the Supreme Court, upon which the decision in Samuels v Linzi Dresses Limited4 was premised. Order 3/5/9 is couched thus: "Unless" or Conditional Order to extend time: where the Court makes an 'Unless' Order, or Conditional Order that a party is required to do an act within a specified time but the Order to do that act is not complied with, within the time specified, the Court nevertheless retains the power to extend the time within which such act should be complied with." In Ruth Kumbi v Robinson Caleb Zulu 1 , the Supreme Court r estored the matter and extended time by ordering the applicant to file the record of appeal within 45 days. We are of the considered view therefore, that the appellants' counsel made the wrong application when he applied for review under Order 39 of the High Court Rules . The court below also erred in law when it proceeded to review its Order dismissing the matter. The law on review is very clear as noted in the Ruling of the court below at pages 14 to 15 of the record. JlO Going by the Ruth Kumbi v Robinson Caleb Zulu 1 case, the appellants should have applied for extension of time for restoration of the matter. As the matter, though dismissed, was not dead or defunct. The Court, was then obliged to consider the grounds or reasons and if they are sufficient to restore the matter. The appeal is therefore, dismissed but the appellants are at liberty to go back to the High Court and make the appropriate application. We make no Order as to costs. C. K. MAKUNG COURT OF APPEAL JUDGE j J. Z. MULONTI COURT OF APPEAL JUDGE M. J . SIAVWAPA COURT OF APPEAL JUDGE Jll