Dingiswayo Jere v Zambia National Commercial Bank Plc (2001/HP/ 0751) [2021] ZMHC 117 (19 August 2021)

2001/HP/ 0751 IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: DINGISWAYO JERE (suing in h s the Administrator of the late Mr. Cou s AND ZAMBIA NATIONAL COMMERCIAL BANK PLC DEFENDANT Before: The Hon. Mr. Justice Charles Zulu. For th e Plaintiff: Mr. M. H . Haimbe of Messrs Malambo & Company . For the Defendant: Mrs. S . M. Wamulume of Mesdames Ndemanga, Mwalula Associates. RULING Cases re ferred to: 1. Chifuti Maxwell v. Chafingwa Rodney Mwansa and Rodgers Chili Mwansa (Appeal No 09/2016). 2 . Amanita Milling v. Nkhosi Breweries Limited (2011) Z. R. Vol. page 357. 3. New Horizon Printing Press Limited v. Waterfield Estates Limited and Another (2015) Z. R. Vol. 2 page 302. 4. Shocked & Another v . Goldschmidt and Others (1998) 1 ALL E. R. 372. 5. The Borough of Morecambe and Heysham v. Mecca Ltd [1962] R. P. C 145. legislation referred to: 1. The High Court Rules Chapter 27 of the Laws of Zambia. -R2- 2. The Rules of the Supreme Court of England and Wales 1965 (White Book 1999 Edition). Other materials referred to: 1. Dr. P. Matibini, Zambian Civil Procedure Commentary and Cases, Vol. 1, (South Africa: Lexis Nexis, 2017) Page 407. This ruling is in r espect of an application by the defendant to set aside an interlocutory judgment entered on June 20, 2007. The application was made pursuant to Order XXXV rule 5 of the High Court Rules (HCR) Chapter 27 of the Laws of Zambia. The said order provides as follows: Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be set aside by the Court upon such terms as may seem fit. The matter was previously handled b y Judge G. S. Phiri (as he then was) . A brief background to this application is that, the plaintiff took out a writ of summons and statement of claim dated August 15, 2001, against the defendant, seeking the following reliefs: i) ii) an order to compel the defendant to remove its caveat from Farm L/10807/M; compensation for damages sustained by the plaintiff as a result of the defendant having entered the said caveat without cause and kept it so to date; and iii) costs of these proceedings. On January 24, 2002, the defendant filed its defence. It can be discerned from the r ecord that apparently the first return date for -R3- trial was set for January 29, 2002. On that return date, the plaintiffs advocate was in attendance , but t h e defendant's advocate was not in attendance. The Court, Phiri J, proceeded to enter judgment in favor of the plaintiff, by ordering the removal of the caveat and awarded damages thereof. However, by order dated May 5, 2004 , the judgment was set aside , and an order for directions in respect of discovery and inspection of documents was issued. The return date for trial was then set for July 30, 2004, but trial did not proceed. And over a p eriod of time , the matter was rescheduled for trial to June 20, 2007. On the date of t ria l, June 20, 2007, the plaintiff's advocate was in attendance, while the defendant and its advocate were absent. The Court expressed its dissatisfaction and bemoaned the non-attendance of the defendant's counsel, and noted that previously a default judgment was obtained by the plaintiff due to the defendant's absence . And after making the above observations, Judge Phiri adjudged as follows: I cannot allow this matter to remain unresolved indefinitely. I therefore find that the Defendant has abandoned its defence and order that an interlocutory judgment shall be entered against the Defendant with Costs to the Plaintiff. Compensatory damages before the learned DR shall be assessed. On May 15, 2012, a formal interlocutory judgment was drawn up by the Plaintiff, and was signed by t h e Judge on the same date, couched as follows: -R4- UPON HEARING Counsel for the Plaintiff herein and Upon Reading the affidavit filed by the Plaintiff. And upon perusal of the whole record and there being no attendance in Court by the Defendant IT IS HEREBY ORDERED that an Interlocutory Judgment be and is HEREBY entered agai nst the Defendant and that the Caveat placed by the Defendant on farm L/10807/M/ be removed forthwith. IT IS FURTHER ORDERED that compensatory damages be paid t o the Plaint iff which damages are to be assessed by the Learned Deputy Registrar and that costs be borne by the Defendant. Dated this 15 day of May 2012 Signed It is the said interlocutory judgment which by an application made on November 30, 2020 , the defendant now seeks to set aside. It should be noted that after the entry of the said interlocutory judgment, the plaintiff by summons dated June 29, 2012, applied for assessment of damages. But the defendant sought to stay the assessment proceedings, alleging that it was intending to appeal against the interlocutory judgment. The application was dismissed by the learned Registrar (Hon. Mr. M. L. Zulu, as he then was) by ruling dated February 26, 2 016. Again the d efendant r epeated the same application dated June 13, 2016, for stay of assessment proceedings pending appeal to the Supreme Court, before another Registrar. And by ruling dated May 10, 2017, the learned Deputy Registrar, Hon. Mr. Lu ndah, dismissed the application for being res judicata, in the light of the ruling by Hon. Mr. Zulu, dated February 26, 2016. -RS- On September 28 , 2017, the Plaintiff took out summons for assessment of damages. And to this application for assessment of damages, the defendant filed an affidavit in opposition dated November 3 , 2017, in which it alleged that the plaintiff being an undischarged debtor to the defendant Bank, the plaintiff could not be said to have suffered any harm by placement of the said caveat. The matter proceeded to trial on November 9 , 2017 , whereof the plaintiff was represented by Mr. M. H. Haimbe of Messrs Malambo and Company, while the defendant was represented by Mrs. S. Wamulume, who was by then the Legal Counsel for the defendant. And on that return date , November 9, 2017 , the plaintiff's two witnesses testified, and thereafter the matter was adjourned for judgment. But given the prolonged illness of Hon. Mr. Lundah, who was supposed to deliver judgment on assessment of damages , the matter was re-allocated to Hon. Mrs. L. C. Sikwenda. On the return date for the matter to be heard de nova, the defendant's counsel sought for an adjournment to pursue two applications; (i) for leave to appeal out of time and (ii) to stay assessment of damages proceedings. Hon. Mrs. Sikwenda allowed the adjourment. On November 27, 2020, Mrs. Wamulume informed this Court that she was not going to proceed with the defendant's application for leave to appeal out of time, but instead she would pursue an application to set aside the interlocutory judgment. Hence, the present application. -R6- An affidavit in support to the present application was deposed to by George Kashoki, the Corporate Recoveries Specialist in the defendant Bank. He gave some background as to how the case herein progressed over the years. He also deposed that, the failure by the defendant to appear in court on the date scheduled for trial, June 20, 2007, was not deliberate, but was due to the defendant's advocate's suspension. He added that the defendant took steps to challenge the interlocutory judgment within time as best as it could by filing an application to appeal out of time. That because of the said application for leave to appeal out of time , the defendant could not be said to be guilty of wanton delay to challenge the interlocutory judgment. According to her, there were triable issues which should be heard on the merit. An affidavit in opposition was deposed to by Dingiswayo Jere, in his capacity as the Administrator of the estate of the late Mr. Courtson Jere. The deponent also gave some background to some of the events in this case. The position taken by the deponent was that, the defendant had not given plausible reasons why the interlocutory judgment should be set aside. And he complained that the plaintiff had suffered great prejudice on account of the defendant's conduct. In reply Mr. Kashoki reiterated that the plaintiff being a debtor to the Bank, he would suffer no prejudice if the interlocutory judgment was set aside. That the defendant's then advocate, Messrs Charles and Charles, did not attend court as the sole partner of the firm, Mr. Charles Muneku was suspended from practice by the Law -R7- Association of Zambia. And that since the law firm was suspended, the defendant's advocate was not aware of the date of trial. Both parties through their respective counsel filed their arguments. The defendant's counsel argued that the interlocutory judgment should be set aside b ecau se Judge Phiri should have conducted a trial rather than grant to the plaintiff an automatic judgment. It was argued that the absence of the defendant on the d ate for trial was not deliberate , because the defendant was unaware of the scheduled r eturn d ate. As to considerations for s etting aside a judgment obtained in the a bsence of the other party, reference was made to the case of Chifuti Maxwell v. Cha[ingwa Rodney Mwansa and Rodgers Chili Mwansa (Appeal No. 9/2016) And on the issue of inordinate delay, it was contended that the defendant was not guilty of inordinate d elay because, the defendant had taken steps to challenge the interlocutor y judgment, by way of a pplying to stay proceedings albeit unsuccessful. According to counsel, no prejudice would b e occasioned to the plaintiff if the a pplication was allowed, because the plaintiff was a loan d eb tor to the defendant. The plaintiff's counsel in opp osing the application observed that, the matter was commenced twenty (20) years ago. It was argued that the a pplication lacks m erit. It was a lso observed that the d efendant's d efen ce was void of m erit, except bare denials. -R8- 0n the issue of inordinate delay to file the present application, the defendant's counsel noted that it had taken the defendant fourteen ( 14) years to file the application. It was thus contended that an application of this sort ought to have been made within seven (7) days from the date of judgment. He relied on the case of Amanita Milling v. Nkhosi Breweries Limited (2011) Z. R Vol. page 357. Furthermore, regard was had to the learned author, Dr. P. Matibini: Zambian Civil Procedure Commentary and Cases, Vol. 1, (South Africa: Lexis Nexis, 2017) page 407, wherein it is recorded: In considering whether to set aside or vary a default judgment, the court will take into account whether the person seeking to set aside the judgment has done so promptly. Promptly means to act with reasonable celerity. The obligation to apply promptly is personal to the Defendant, which means defendants are not allowed to shield behind any failure by their representatives. Where there is undue delay, an application to set aside a default judgment can fail purely on this ground, even if there is a defence with real prospect of success. Counsel noted that even though the above cited proposition referred to a default judgment, it was applicable in the present case with equal 'dexterity'. And I was urged to dismiss t he application. I h ave laboured to produce a deta iled summary of how events unfolded in this case leading to this application. This was necessary to have a balanced appreciation whether there is sufficient cause, good and convincing grounds to set aside the said interlocutory judgment. -R9- Th e interlocutory judgment that the defendant seeks to set aside is not in the strict sense a default judgment because it was not entered under Order XII r. 10 of the High Court Rules, in default of appearance and defence, but was entered after the d efend ant failed or/ and neglected to attend to the said date of trial. Or der XXXV r. 3 H CR p rovides: If the Plaintiff appears, and the Defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, t he Court may, upon proof of service of notice of trial, proceed to hear the cause and give judgment on the evidence adduced by the Plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the Defendant. It is for this reason that the defendant relied on Order XXXV r. 5 HCR, to set aside the judgment. Ironically, a judgment entered pursuant to Order XXXV r . 3 HCR or deriving authority from t h e said order is not a default judgment per se, but a judgment on the merit (see New Horizon Printing Press Limited v. Waterfield Estates Limited and Another (2015) Z. R Vol. 2 p age 302. It should t h us be pointed out that a judgment obtained 1n the absence of the other party, after trial or some form of "trial" is set aside on considerations predominately different from setting aside a default judgment strictly obtained in default of appearance and defence. This was amplified in the case of Shocked & Another v. Goldschmidt and Others (1998) 1 ALL E. R. 372 wherein it was held: On application to set aside judgment given after trial, in the absence of the applicant, different considerations are -RlO- applied than on an application to set aside default judgment. In particular, the predominant consideration for the court was not whether there was a defence on the merits but the reason why the applicant absented himself. .... Our Supreme Court in the case of Chifuti Maxwell (supra ), in a unanimous judgment delivered by Mu tuna J. S., reaffirmed the above position, when it held: In a situation where the Court proceeds with the hearing and renders judgment, as was the case in this matter, upon application by a defendant and his showing "sufficient cause", the Court has the discretion to set aside the judgment. Order 35 rule 5, however does not explain what constitutes "sufficient cause" or what facts the defendant needs to present before the Court if it is to set aside the judgment.... The primary consideration for the judge at the hearing of an application to set aside a judgment are, therefore, the reasons for the absence of the party applying and not defence on the merits .... And I reckon where there is delay to make an application to set aside a judgment obtained in the absence of the other party or/ and pursuant to Order XXXV r. 3 HCR, the court is not precluded to consider the length of the delay to make the application and the reasons advanced for the delay. Inordinate d elay on its own is capable of rendering an application to set aside untenable or fatal. Although our Order XXXV r. 5 HCR provides no time frame within which an application herein ought to be m a de , promptness in making an application of this sort is undenia bly incontestable. It should be noted that a facsimile provision under Order 35 r. 2(2) of the Rules of the Supreme Court 1965 (White Book 1999 -R11 - Edition) , an application of this sort should be made within seven (7) day from the date of trial. It is without doubt that under Order XXXV r. 5, time is inherently of the essence. Analogously, in the case of The Borough of Morecambe and Heysham v. Mecca Ltd {1962[ R. P. C 145, the plaintiffs delayed to bring an action seeking a restraining order for over a year , and Wilberforce J. refused to grant an injunction citing unreasonable delay . In the present case, the judgment s ought to be set aside was entered in 2 007 , and the application to set aside was only filed in 2020. And this was after the matter was s et down for trial in respect of assessment of damages. The Defendant made attempts to stay assessment proceedings on two occasions albeit unsuccessful, in the name of attempting to appeal against the said judgment. And when these attempts failed by rulings alluded to earlier, the defendant r ealistically settled to oppose the assessment of damages proceedings on merit and filed its affidavit in opposition. And after trial, the matter was reserved for judgment. However, Hon. Mr. Lundah could not proceed to deliver his judgment due to h is prolonged illness, leading to the matter being re-allocated to another Registrar for assessment of damages; to be heard denovo. Regrettably, with the development or turn of events to start the assessment of damages de nova, the defendant unconventionally decided to launch the present application, citing its counsel absence to attend to trial on the material date. -R12- The reason cited b y the defendant, t o purportedly justify its a bsen ce at trial on the m aterial d ate is not bona fide, but ostensibly an afterthought. If indeed that was truly the reason, it was reasonably expected that the d efendant would h ave timely filed its application to set aside the judgment around 2 007or around 2 012 at the very least, but only did so after thirteen years, and after it filed its defence, and opposition to the a pplication for assessm ent of damages. Effective and efficient administration of justice also lies 1n the propriety and diligen ce of litigants to timely make their applications. Otherwise, if inordinate or unreasonable d elays anchored on weak and unconvincing grounds are liberally tolerated, finality to litigation will be a nightmare to innocent litigants. It is unacceptable to inflict injustice to innocent litigants, at the hands of those bent on capturing court process b y wh atever tactic to frustrate the ends of justice. The general conduct of the defendant from inception to d elay speedy resolution of this matter is intolerable. A summary of the b ackground facts provided above is fraught with such conduct. For example : an application for stay of assessment proceedings was first denied, but only to b e renewed later b efore a n oth er Registrar when the r ecord changed h ands; the Defend ant participated in assessment proceedings, and the matter was reserved for judgment b y Hon. Mr. Lundah, but when Hon. Lundah was incapacitated to deliver judgm ent, and t h e m atter was r e-allocated to another Registrar to start de nova, the Defendant in its usual style made the present -R13- application. If the defendant was genuine, this application should have been made more than a dozen years ago. My above observations also finds consensus with sentiments expressed by Judge Phiri, when h e r end ered the judgment on the date of trial that, the defendant's absence was habitual and was imprudent in the use of the court's time . And his final caution was that: "I cannot allow the cause to r emain unresolved indefinitely". Likewise , it will be unwise of me to allow this application, and render the matter to r elapse to a s tate it was fourteen years ago, when the matter is progressively on the verge of final judgment. The defendant having filed documents to oppose the award of damages, I see no prejudice that will b e occasioned to the defendant, instead, if the application is granted, n ot only will the plaintiff suffer abject prejudice, the reversal will be inimical to good administration of justice. The defendant also a ttempted to p er su a de the Court to accept that, perhaps the inordinate delay was due to the fact that the record at some stage went missing, a nd was t hus unable to file this a pplication. This s u ggestion is disingenuous, because, the d efendant was able to file other applications as the r ecord show. In view of the foregoing, the application to set aside the interlocutory judgment is without sufficient cause and stand dismissed. Accordingly, I direct that the assessment proceedings proceed forthwith. -R14- The application 1s dismissed with costs, and leave to appeal 1s granted. DATED THE 19TH DAY OF AUGUST, 2021 . .......... C ....... ~ .... ~ ............ . THE HON. MR. JUSTICE CHARLES ZULU