Daphne Patricial Seville v David Newberry and Anor (APPEAL NO. 114 OF 2004) [2006] ZMSC 41 (19 May 2006)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 114 OF 2004. AT KABWE AND LUSAKA. (Civil Jurisdiction) BETWEEN: DAPHNE PATRICIA SAVILLE APPELLANT. And DAVID NEWBERRY CHERYL NEWBERRY 1 ST RESPONDENT. 2N°RESPONDENT. Coram: Chirwa, Mushabati, JJS and Kabalata, Ag. JS. On 5th April, 2005, 4th April, 2006 and 19th May, 2006. For the Appellant: F. S. Kongwa of Kongwa and Company. For the Respondents: No Appearance. JUDGMENT Mushabati, JS. delivered the judgment of the Court. This is an appeal against a High Court judgment delivered on ih day of January, 2004. In this judgment we shall continue to refer to the respondents and the appellant as the plaintiffs and the defendant respectfully because this is what they were in the court below. The plaintiffs sued the defendant for a declaratory order that they were entitled to continue occupation of sub-division O of Farm No.609 J2 Foxdale, Lusaka owned by the defendant as licencees for a period of 45 months from 1st December, 2000 on account that a total licence fee ofU. S$ 13,568.71 was paid to the defendant at the rate of U. S.$ 300 per month. The defendant filed counter-claims namely:- 1. For an order that the plaintiffs vacate Sub-division O of Farm No. 609, Lusaka in accordance with the notice to vacate issued to them by the defendant and 2. For damages and interest thereon at the ruling bank rate for such period as the court shall deem fit for the waste and unauthorized alterations made to the buildings on the defendant's property and damage caused to the property as a consequence. The learned trial judge in his judgment dealt with the main action by the plaintiffs but did not consider the counter-claims and in doing so he had this to say:- / have considered whether or not there is a need to comment on the various other issues that arose during the trial from both sides. My decision is that there's no need. There is no need for a separate decision on the issue of the hatchery. The main issue between the parties has been resolved. It is against this part of the judgment that the defendant has appealed to this court. It is undisputed that the plaintiffs occupied sub-division O of Farm 609 Foxdale Lusaka on licence entered into by the parties. It is also not in dispute that the plaintiffs were required to pay a licence fee of U. S.$.300 per month. In fact the conditions of occupation of the said premises by the plaintiffs were clearly outlined in the parties' J3 agreement signed by both parties but not dated. This document is at pages 107 to l 09 of the record of appeal. The appeal was argued on two grounds of appeal namely:- ], That the learned judge erred in law and in fact in declining to decide on the appellant's counter-claim relating to the damage caused to the building by the unauthorized alterations. 2. The leanred judge erred in law and in fact in holding that a decision on the respondent's substantive (claim) disposed of all the issues before the court These were supported by written heads of argument and oral submission by the learned council. The gist of all the arguments was that the plaintiffs counter claim was an independent claim from that of the plaintiffs and so it ought to have been considered by the learned trial judge on its own merit. It 1s clear from both the grounds of appeal and the arguments advanced herein that the appeal was not on the merit of the counter-claim but on the failure by the learned trial judge to consider the counter-claim, whether it had merit or not. It is therefore unnecessary for us to review the evidence on record because doing so we shall be determining the issues yet to be determined by the trial court and for reasons we are going to give shortly we intend to send back the case to the trial judge to consider the counter-claim on its own merit. The parties adduced evidence through written statements filed into court upon which they were cross-examined. In deciding the plaintiffs' case the learned trial judge ought to have treated the defendant's case as a claim J 4 on its own which required to be treated as such independently of his decision on the plaintifr s case. In short he ought to have considered whether the defendant had proved his claims against the plaintiffs. The mere fact that the plaintiffs claim was dismissed did not resolve the issues raised by the defendant. The lower court's failure to consider the counter-claim on its own merit as per evidence on record was a serious omission. We cannot speculate as to the likely decision the lower court was going to arrive at had it considered the said counter-claim. We are therefore in total agreement with the learned counsel for the defendant that the court below ought to have considered it because it was as good as the main claim that was before the court. We are therefore, sending back the record to the trial judge to consider the counter-claim and make a decision thereon. The appeal is therefore, allowed. We make no order as to costs. ~ D. K. Chirwa . ~~._f!__e--<2_,~ C. S. Musha ) i SUPREME COURT JUDGE SUPREME COURT JUDGE SUPREME COURT nJDGE