Dominic Chola Mulaisho and Anor v Development Bank of Zambia and Ors (2002/HP/0659) [2016] ZMHC 230 (15 July 2016)

2002/HP/0659 IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MATTER OF: A Legal Mortgage relating to Subdivision J of Farm Number 34a, Annisdale, Chelston BETWEEN: DOMINIC CHOLA MULAISHO KALULUZI INVESTMENTS LIMITED 5 1 JUL 2016 AND 1 ST PLAINTIFF 2ND PLAINTIFF DEVELOPMENT BANK OF ZAMBIA 1 ST DEFENDANT SIPHO M PHIRI (Sued in his capacity as Joint Receiver of Kaunga Investments Limited) 2ND DEFENDANT WILLIAM KABEMBA (Sued in his capacity as Joint Receiver of Kaunga Investments Limited) 3RD DEFENDANT ANNABEL FLOWERS LIMITED 4TH DEFENDANT Before the Hon. Mrs. Justice J . Z. Mulongoti in Chambers on the 15th day of July, 2016. For the plaintiffs: Mr. S. Zulu, SC of Messrs Zulu & Company For the 1s t defendant: For the 2 nd defendant: For the 3 rd defendant: For the 4 th defendant: N/A N/A N/A Mr. M. Ndalameta of Musa Dudhia & Co. RULING Cases cited: 1. Re Jolcai Tea Holdings Limited (1993) ALL ER 630 2 . Ruth Kumbi v. Robinson Kaleb Zulu (2009) ZR 183 3. University of Zambia v. Jean Margaret Calder (1998) ZR 48 -Rl- 4. Tolley v. Morris (1979) 2 ALL ER 561 5. Allen v. Sir Alfred Mcalpine & Sons Limited (1968) 1 ALL ER 543 6. Twampane Mining Co-operative Society Limited v. E & M Strati Mining Limited (2011) ZR 67 Vol. 3 7. D. E. Nkhuwa v. Lusaka Tyre Services Limited (1977) ZR 43 Legislation referred to: 1. The Rules of the Supreme Court, 1999 edition (white book}, Order 3/ 5/ 9 The ruling is for the plaintiffs' application for extension of time within which to comply with the 'unless order' to restore the matter to active cause list. The application is supported by an affidavit sworn by the plaintiffs' advocate Sebastian Saizi Zulu. He deposed that the matter was commenced in 2002 on behalf of the plaintiffs by Messrs Chifumu Banda & Associates. His firm took over conduct of the matter and applied to set it down for trial in 2004 before Judge T. K. Ndhlovu. In 2005, the matter was reallocated to Judge N. M. Mwanza and trial commenced in 2005 and the plaintiffs closed their case in 2006. The matter was adjourned on several occasions and was finally set for continued trial in May 2007 but the record could not be located. The parties appeared in 2007 but the matter was adjourned because the record was incomplete as the testimony of the first plaintiff was missing. The court also informed the parties that as he was about to retire the matter was scheduled for reallocation. Between 2011 and 2012, the deponent was appointed Minister of Justice and his clients retained Simeza Sangwa & Associates them. On 18th September, 2013, the parties appeared before court and to represent -R2- they were informed that the matter had been struck off for want of prosecution on 21 st June, 2012. And it was dismissed 30 days later for failure to restore it to active cause list. He further deposed that he discovered that the notice of hearing returnable before Judge Chashi had been issued to Chifumu Banda & Associates. However, Chifumu Banda & Associates did not receive it and Messrs Simeza Sangwa & Associates who had conduct of the matter did not also receive the said notice and there was no affidavit of service on record. By 14th May, 2013, the parties were unaware that the case had been re allocated to Judge Chashi. This is evident from the letter from the fourth defendant to the Acting Chief Justice dated 14th May, 2013 seeking intervention regarding the whereabouts of the record and expressing willingness to furnish the court with copies of the documents on record. The 4 th defendant's advocates forwarded the documents to court after the matter had been struck out. In August, 2013 the 4 th defendant's advocates wrote to the marshal to Judge Kondolo to whom the matter had been re-allocated requesting a trial date after having been informed that the record had been found. In September, 2013 the deponent's law firm Messrs Zulu and Company filed a notice of change of advocates to replace Simeza Sangwa & Associates as advocates for the plaintiff. He then applied to set aside the order striking out and dismissing the matter for want of prosecution which application was dismissed by Judge Kondolo on the premise that court orders whether right or wrong must be obeyed. Further, that actions should be decided on merit. The Judge ordered that the application for extension of time to comply with the 'unless order' -R3- should be made on condition that the costs of the application are paid. The plaintiffs settled the costs and subsequently filed a notice of intention to restore the action. The plaintiff's advocates also filed skeleton arguments in support of the application. The gist of his arguments is that the failure to obey the 'unless order' was not intentional. He relied on the case of Re: Jokai Tea Holdings Limited(l) in support of his submission. He argued further that the plaintiffs were neither aware of the fact that the matter had been re-allocated to another judge nor that the trial date had been set. Relying on Order 3 rule 5 of the Rules of the Supreme Court and the case of Ruth Kumbi v. Robinson Kaleb Zulu(2), he submitted that the court has power to extend the time within which to comply with the 'unless order'. The case of University of Zambia v. Jean Margaret Calder(3) which the court granted an application for extension of time for the second time in the interest of justice was cited as authority for the court to exercise its discretion and grant the application to extend the time within which to comply with the 'unless order'. The 4 th defendant opposed the application through an affidavit sworn by Timothy Robert Evans a director in the 4 th defendant company. He deposed that the plaintiff commenced this action in 2002 and did not take any steps to prosecute the matter because they were enjoying the benefit of an In 2007, only one injunction. appearance was made. In 2008, the plaintiff took no steps to prosecute the mater. In 2009, the plaintiffs -R4- issued a notice of intention to proceed. The parties appeared in court in 2009 but the matter was adjourned because the first plaintiff's testimony was missing from the record. In 2010 and 2011, the plaintiffs took no steps to prosecute the matter. On 12th June, 2012 Judge Chashi struck out the matter with liberty to restore within 30 days, it would stand dismissed. No such restoration took place. On 10th December, 2013, the court dismissed the plaintiffs' application to restore the matter to active cause list and set aside the order dismissing the action for want of prosecution. to which failure He further deposed that due to the overall time which has elapsed, there is a risk of an unfair trial because the recollection of facts by the witnesses may be fading. The plaintiff who already testified has since passed away and the record of his testimony has not been found. That a period of 14 years has gone by because of the plaintiffs' failure to prosecute the case. Learned counsel for the fourth defendant also filed skeleton arguments in opposition. He argued that the plaintiffs failed to keep track of their case until it was struck out. He submitted that in order for the court to extend the time, the plaintiffs must prove that they have taken steps within the required period, that there is material on which a court can act to exercise discretion and that the delay should be sufficiently excused. It was contended that the plaintiffs have failed to prove the foregoing. The English cases of Tolley v. Morris(4) and Allen v. Sir Alfred Mcalpine & Sons Ltd(5) were relied -RS- for that their the delay and upon to the effect that the plaintiffs' have themselves to blame laxity and disobedience of the peremptory order was contumelious such that the defendants were justified to have the matter dismissed for want of prosecution. And that the change of lawyers is not a valid reason to justify the delay because the plaintiff could have a remedy against their lawyer in an action for negligence. the failed the matter, to prosecute Additionally that over the 14 years that the plaintiffs fourth have defendant's resources have been depleted and its witnesses' memory has grown dim. In addition, the first plaintiff has since died. He argued that all these considerations turn justice sour and make it a matter of public interest that the action not be allowed to proceed. And that the plaintiffs have not shown that their case has prospects of success. Counsel relied on the holding of the Supreme Court in Twampane Mining Co operative Society Limited v. E & M Storti Mining Limited(6) that: "Indeed) there is no need to appeal for the sake of appealing when the appeal has no prospects of success. In this regard) we cannot over emphasise the importance of adhering to rules of court as this is intended to ensure that matters are heard in an orderly and expeditious manner. Allowing this appeal would be tantamount to us encouraging laxity and non-observation of rules by practitioners and litigants in general. We repeat what we said in Nkhuwa v. Lusaka Tyre Services Limited) that those who choose to ignore rules of court will do so at their own peril.)) In that case) the court also endorsed the proposition in Palata Investments Ltd v. Burt & Sin.field Limited (1985) ALL ER 517 that extending time for the pursuit of a hopeless case is cruel." -R6- Furthermore, that according to the Allen case, Lord Diplock stated that dismissal for disobedience of a peremptory order is not merely a technicality and that there are serious underlying reasons why such courses of action are taken by courts. That disobedience of contumelious and peremptory order 1n intentional. That bringing a matter to trial expeditiously is a matter of public policy and utmost importance. The plaintiff's argument that the current situation is a mere technicality is flawed. According to counsel, the issue is that the plaintiffs have disobeyed a binding order of the court and now seek to trivialise their disobedience. Their conduct ought to be taken into account in considering whether their application should be successful. itself 1s Citing the case of D. E. Nkhuwa v. Lusaka Tyre Services Limited(7), it was submitted that the delay by the plaintiffs was prolonged and inexcusable. At the hearing, learned counsel for the plaintiffs Mr. Zulu, SC augmented his skeleton arguments with oral submissions. He submitted viva voce that the plaintiff closed its case in 2006 and the record went missing for over five years including the first plaintiff's testimony. Hence, the disobedience of the 'unless order' was not deliberate but due to extraneous circumstances. for counsel fourth defendant, Mr. the Learned Ndalameta, relied on the affidavit in opposition and skeleton arguments. I have considered arguments by counsel. the affidavits and the skeleton -R7- The law regarding restoration of matters which have been dismissed on account of failure to abide by an 'unless order' is contained in Order 3/5/9 of the Rules of the Supreme Court (RSC) which states as follows: "Where the court makes an "unless)) 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." This position of the law was confirmed in the case of Ruth Kumbi v. Robinson Kaleb Zulu, also cited by Mr. Zulu, SC in which the Supreme Court held as follows: " ... in Zambian courts, where the 'unless order' has been made, and there is failure to comply with the order within the specified period that does not 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." Order 3 / 5 /9 of the RSC further provides as follows: "On the other hand, it must be emphasized that although the court has jurisdiction to extend the time where an 'unless order' has been made and not complied with, the power to do so should be exercised cautiously and the court will not automatically extend the time of a party who has Jailed to comply with the order of the court except on stringent terms either as to payment of costs or bringing money into court or the like, for orders as to time are made to be complied with and are not lightly to be ignored... " -R8- The said Order 3 / 5 / 9 of the RSC refers to the case of Re Jokai Tea Holdings Ltd, also cited by Mr. Zulu S. C., in which the consequences of the failure to comply with Unless Orders received further consideration and the court held as fallows: is is whether such failure " ... the court has to decide what are the consequences of a failure to comply with an 'unless order)) the relevant question intentional and contumelious. The Court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances) such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.)) the court may exercise In D. E. Nkhuwa v. Lusaka Tyre Services, also cited by learned counsel for the fourth defendant, the Supreme Court held that the power of the court to grant an extension of time is entirely discretionary which will not be exercised without good cause and that there must be material upon which that discretion. The court took the view that the most important factor is the length of time. This position was re-affirmed in the later case of Twampane Mining Co operative Society Limited v. E and M Storti Mining Limited. In that case, the Supreme Court went further and pronounced that the court is at large to look into the merits of the case when considering an application for extension of time and placed emphasis on adherence to the rules of court. -R9- In view of the foregoing, it is clear that the court has the power to extend the time within which to comply with the 'unless order'. The power though discretionary must be exercised judiciously. The court must be satisfied that there is material upon which the order may be granted. In doing so, the court must have regard to the reasons advanced by the defaulting party, the length of the delay and is not precluded to look into the merits of the case. The plaintiffs must demonstrate their non that 'unless order' was neither compliance with intentional nor contumelious and that the failure to obey the order was due to extraneous circumstances. These considerations must be made against the need to ensure adherence to the rules of the court whose importance cannot be over emphasised while embracing the need to do justice at the same time. the In casu, the matter was struck off the cause list on 21st June, 2012 with liberty to restore within 30 days failing which the action would stand dismissed. Thus, by 22 nd July, 2012 the matter stood dismissed since there was no application to restore the action to active cause list. The plaintiff only applied to restore the matter on 20th September, 2013, a period of over one year from the time that the matter stood dismissed. I am of the considered view that the delay by the plaintiffs to apply for restoration was inordinate. The length of time that has in an application for elapsed extension of time. In the D. E. Nkhuwa case, delay of to be inordinate and the eleven months was held Supreme Court declined to exercise its discretion in favour of extending time. In the recent case of Twampane is a material factor -RlO- Mining Corporative Society Limited, delay of thirty nine days was deemed inordinate and the application to extend time was unsuccessful. As noted in the case in hand, the plaintiffs' delay is over a year. Going by the Supreme Court decisions in the aforestated cases, I find that inordinate and inexcusable. the plaintiff is the delay by I note that Mr. Zulu, SC's averments in paragraphs 14 to 15 of his affidavit that between 2011 and 2012 he was not representing the plaintiffs and they appointed Simeza Sangwa & Associates in his stead. Further, that the parties appeared on 18th September, 2013 at which they were informed that the matter had been struck out. I am not persuaded by his contention that the plaintiffs were not made aware of the order striking out and subsequently dismissing the case. I opine that the plaintiffs were responsible for the conduct of their case. I have perused the record and note that Messrs Simeza Sangwa & Associates never filed a notice of appointment or change of advocates and they have never made any appearance before court. The letter referred to in the affidavit in support from Simeza Sangwa & Associates was clear that their request for the plaintiffs' documents from Messrs Zulu and Company was subject to a retainer. After the matter had been struck out, Messrs Zulu and Company filed a notice of change of advocates in September, 2013 under the assumption Messrs Simeza Sangwa & Associates had been acting for the plaintiff when they had not been retained by the plaintiff. Thus, the plaintiffs knew that they were unrepresented during the period when the matter was struck out. The -Rll- court issued a notice of hearing in the usual manner prior to the action being struck off. The plaintiffs as the aggrieved party sat back and did not attend court much to their detriment. The matter was commenced in 2002 but the plaintiff still approached the case with so much laxity. A period of fourteen years is a long time such that there is a possibility that the witnesses may have lost their proper recollection of the facts over time as canvassed by Mr. Ndalameta. The plaintiffs ought to have taken steps to vigorously prosecute their case and ensure that it is brought to its logical conclusion. I opine that had they retained lawyers, their lawyers would have followed up the case on their behalf, conducted a search to ascertain the status and would have taken the necessary steps. Further, had the plaintiffs been diligent, either the matter would not have been struck out or they would have had an opportunity to apply to restore the the prescribed period or within a action within reasonably shorter period of time after the dismissal. Therefore, I find that there is no material or sufficient reasons for the delay upon which the plaintiffs can be granted an extension of time within which to comply with the 'unless order'. I also wish to echo the sentiments of the Supreme Court in the Twampane case that allowing the application will be tantamount to encouraging laxity and non-observance of the rules of court by litigants. It is noteworthy that it was actually the 4 th defendant who made efforts to trace the record when it went missing and not the plaintiffs. -R12- For the reasons aforestated, the plaintiffs' application for extension of time within which to comply with the 'unless order is denied. Accordingly, the matter stands dismissed and the order of interim injunction granted in 2002 stands discharged. Costs to the 4 th defendant. Leave to appeal is granted. Delivered at Lusaka this 15th day of July, 2016. J. Z. MULONG TI HIGH COURT JUDGE -R13-