David Tembo v Doyle B. Kapambwe and Ors (NOM 32/2018) [2019] ZMCA 406 (12 June 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) NOM 32/2018 BETWEEN: DAVID TEMBO AND ~~'1.\J£-Q(.t,;M . / e,t~1..1flT Of APP~ ~ r . - I. ·:L J 'l flJr,J ?r,•,.n { ~ £:, .. ! =t ~ " ~ ---·-, CIVll Flt. GISTRY 2 DOYLE B. KAPAMBWE MACHONA KAPAMBWE HENRY MACRINA ROSE MADINA KAMUNGU APPELLANT 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT CORAM: CHISANGA JP, MAKUNGU, KONDOLO SC, JJA On 2nd October, 2018 and on 12th June, 2019 For the Appellant : Dr. OMN Banda Messrs OMN Banda & Co. For the Respondents : Mr. K Mwondela, Messrs Lloyd Jones and Collins Legal Practitioners RULING KONDOLO SC, JA delivered the Ruling of the Court. CASES REFERRED TO: 1. Ladd v Marshall [1954] 3 All ER 754 2. Fox Motor Spares Limited v Khalid Gulan Mohammed Saleh SCZ/55/2017 LEGISLATION REFERRED TO: 1. Supreme Court Practice Rules of England (1999) - Whitebook 2. The Court of Appeal Act No. 7 of 2016, Laws of Zambia R2 of7 The Respondents moved this Court by way of Motion for leave to adduce further evidence pursuant to Order 59 Rule 9 of the Rules of the Supreme Court of England {Whitebook). The application was supported by an Affidavit deposed by Coun sel for the Respondents. He attested that on 24th April, 2018, at the hearing of the m ain Appeal before u s, we asked him to addr ess us as to whether or not the trial Court was in order to have proceeded to deliver Judgment ordering specific performance while being mindful of the existence of a caveat over the subject property, placed by a third party. He further s tated that in responding to the question posed by this Court, he brought it to our attention that the question was not canvased by either party at trial and that no evidence was led in the Court below pointing to the fact that the said caveat was still in place at the time of Judgment. It was averred that during the course of the proceedings a letter was written to the Caveator's a dvocates to place them on notice of the proceedings in the High Court touching on Plot No. 3027 4 Lusaka. The Caveator expressed interest in the proceedings but took no action. On 2nd May, 20 18, Counsel for the Respondent, Mr. Mandela, wrote to the Caveator's Counsel to find out their pos ition and he was informed, in a letter dated 4 th May, 2018 that the caveat had since been withdrawn following a successful suit in the High Court under Cause No. 20 12/HPC/0030. They did not therefore retain any interest in the property. R3of7 The matters as narrated above are not before Court and Counsel was of the view that the same should grace the Record, as further evidence, in response to the Court's query. The Appellant objected against the Motion and pointed out that the application had been irregularly made under Order 59 of the Whitebook when it should have been made under the Court of Appeal Rules. He submitted that the application was a ploy to delay justice because the Court's concern could have been addressed by using the evidence at page 92 of the Record of Appeal which showed that a caveat was entered by a third party. He stated that Counsel for the Respondents was aware of that fact and was by implication stating that the trial Judge was not in order when he awarded specific performance in light of the cavaet. The Appellant averred that adducing more evidence would prolong the matter because it would raise new issues which were, in any event, already determined in Cause No. 2012/HPC/0030 between the Appellant and Luke Phiri, the third party. He noted that the said third party was never called to testify as to why he placed a caveat on the property in 2009 but the court nevertheless delivered Judgment. Counsel further expressed very strong reservation with regard to the authenticity of the letters "KMl" and "KM2" and that "KM3" was speculative. Both parties advanced other arguments which are on Record but which we shall not repeat because of the view we take with regard to this application. R4of7 We have considered the Motion before us and noted the submissions of both Counsel. The Court was moved pursuant to Order 59 of the White book but at the hearing, Counsel for the Respondent drew our attention to our own provisions in which this Court is clothed with jurisdiction to admit further evidence where it deems it necessary for the determination of a matter. Section 24 (1) (b) (i) of the Court of Appeal Act states as follows: "24. ( 1) The Court may, on the hearing of an appeal in a civil matter- (b) where necessary or expedient in the interest of justice (i) order the production of a document, exhibit or other thing connected with the proceedings, the production of which may be necessary for the determination of the matter;" In as much as the Court of Appeal Act provides for the production of documents, as stated above, Order 59/10/11 - 23 of the Whitebook explains the factors that an Appellate Court ought to consider in deciding whether or not to allow the production of fresh evidence after a trial on the merits was conducted in a lower Court. The Order specifies that this should only be considered where special circumstances warrant the production of new evidence and the special circumstances must satisfy the conditions set out in Ladd v Marsha11(1l as follows; 1. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. RS of7 2. The evidence must be such that, if given it would probably have an important influence on the result of the case, though it need not be decisive, 3. The evidence is such that it is presumably to be believed, or in other words, it must be apparently credible though it need not be incontrovertible. Order 59 also provides, in exceptional cases, for the admission of evidence where the Ladd v Marshall(1l conditions have not been satisfied. Order 59/10/18 allows an exception to be applied to "evidence as to matters which have occurred after the date of the trial or hearing". The Order reads that, " ..... in order not to disturb the principal that there shoul,d be finality in litigation, the change must substantially affect a basic assumption made at the trial; the matter is one of degree." When the appeal came before us, we noticed a document on the Record of Appeal referring to a caveat. We asked Counsel for the Respondent whether the lower Court should have made an order for specific performance in view of the apparent Caveat. It can be gleaned from the Record that during the proceedings in the lower Court, the issue with regard to the Caveat was not raised by either party nor by the trial Court. The issue of the caveat was therefore not a contentious issue vis-a-vis the Parties and neither did the trial Court see it as such. However, notwithstanding the views of the Parties and the trial Judge with regard to the caveat, the existence of the said Caveat was noted by this Court and for that reason, our question was well-founded. The documents the R6 of7 Respondents seeks to produce are exhibited in the Affidavit in support of this application as "KMl", "KM2", "KM3" and "KM4". We also note that the Appellant has also attached "DTl" a printout from the Ministry of Lands Register showing that the Caveat with withdrawn in July, 2012. The principles of adducing fresh evidence were discussed by this Court in Fox Motor Spares Limited v Khalid Gulan Mohammed Saleh 12 1 where we clearly indicated the conditions that must be met before an Order to adduce fresh evidence on appeal can be granted. The first element was that the documents could not have, with due diligence, been discovered at the time of trial. This is not the case herein because it is quite clear that had the Parties, conducted due diligence, they would have been aware of the none existence of the Caveat. The fact that the caveat did not raise eyebrows during the trial shows that it was a none-issue and cannot therefore be raised on appeal. It is necessary for us to comment on the approach taken by counsel for the Respondents leading o this Motion. Counsel was merely for his comments on whether or not it was proper for the Court to grant specific performance in light of the caveat, which as per page 92 of the Record of Appeal, was still in force. His response, at the hearing, was satisfactory and did not need to be reinforced by this application. This is clearly an attempt to prove that the third party's interest was not in issue, a fact that was not raised and cannot be raised on appeal. We must hasten to state that Counsel must not abuse the machinery of the Court by making applications for reason only that the Court, at a R7of7 hearing, asked a question. It is the practice for Courts to engage Counsel on anything relating to the Record of Appeal and indeed the law surrounding it but it was never the intention of this practice to have unnecessary applications follow after such queries. In Fox Motor Spares Limited (supra) 1being mindful of the law on allowing fresh evidence, we held that whilst this Court has the discretion to allow a party to adduce fresh evidence, the principle of finis litium should not be lightly disregarded. There must be an end to litigation and the litigants must not be placed in a position to have a second bite at the cherry by averring that they are merely responding to a query by the Court. We will not allow it. The application is denied with costs to the Appellant. ( l ' ................. ~ ......... . F . M. CHlSANGA JUDGE-PRESIDENT ............ ~ ........... ~ .. C. K. MAKUNGU COURT OF APPEAL JUDGE -------=== ~ 2::-~ •.•••••.•. ••.•...•.•....•••....•....•. M. M. KONDOLO SC COURT OF APPEAL JUDGE