Chiombe v Chiombe (Appeal 12 of 2016) [2017] ZMSC 3 (22 March 2017)

V\A IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 12/2016 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ERNEST KABWE CHIOM APPELLANT AND ilk 2 2 MAK 201/ At COURT OF Appek SAMPA KASONGO MULIL AGISTRY 1 13°X 50067 uSte% RESPONDENT CORAM : Mchenga DJP, Chishimba and Kondolo, JJA On 7th February, 2017 and 22^d March, 2017. For the Appellant : Mr. Katupisha of Messrs Milner 86 Paul Legal Practitioners For the Respondent: Mr. S. Simuianza of Messrs Lungu Simwanza& Co. JUDGMENT CHISHIMBA, JA, delivered the Judgment of the Court CASES REFERRED TO: /. Zambia Telecommunications Company Limited Vs. Mulwanda and Ngandwe Appeal No. 63 of 2009 Kangwa Simpasa and Yu Huizhen vs. Lackson Mwabi Mwanza SCZ/8/21/2012 Antonio Ventrigilia& Manuel Ventrigilia Vs Eastern and Southern African Trade and Development Bank SCZ No. 13 of 2010 (2010) ZR VOL. 1 page486 JCN Holdings Limited V Development Bank of Zambia SCZ Judgment No. 87 of 2013 Nkhata and Others V the Attorney General 1966 ZR Attorney General Vs Peter Mvaka Ndhlovu (1986) ZR 12 (S. C) -12- Wilson Masauso Zulu V Avondale Housing Project Limited (1982 (ZR 172 (SC) Appeal No. 7 of 1982 Charles Osenton and Company V Johnson (1994) 2 ALL E. R 245 Codeco Limited vs. Elias Kangwa& Others Appeal number 199/2012 LEGISLATION AND OTHER WORKS REFERRED TO: The High Court Rules, Chapter 27 of the Laws of Zambia The Subordinate Court Rules, Chapter 28 of the Laws of Zambia This is an appeal against a High Court Judgment dated 21st September 2016 in which the learned Judge overturned a ruling of the Magistrate Court refusing to review its Judgment. The Judge in the Court below then took into account fresh material evidence, proceeded to review and make declarations. The chronology of the events leading to the appeal is as follows; on 31st of February 2014, the Local Court granted the Respondent a divorce against the Appellant and ordered that property acquired together in the marriage be shared equally. The Appellant Ernest Chiombe appealed to the Subordinate Court which delivered an oral Judgment on the 9th of October, 2014 and which was sealed on the 12th November, 2014. The 43- Hon. Magistrate held that the house did not form part of the matrimonial property but belonged to the Appellant's family members and was thus not subject to property settlement. Further that the Respondent had not adduced evidence to show that the property in issue was owned by her husband, the Appellant. The Respondent on the 20th of November 2014 applied by way of Summons for Special leave to review the Judgment of the Magistrate pursuant to Order 38 (1) and (2) of the Subordinate Court Rules Cap 28 of the laws of Zambia The Hon. Magistrate delivered a ruling dated 23rd January, 2015 in which he held and stated that "the law clearly gives me power to review my judgment and to hear and receive new evidence if I feel that there was miscarriage of justice (cid:9) arkl I do not feel that there was a miscarriage of justice". He then declined to grant the application for special leave to review but he referred to the application as being for Review as opposed to Special Leave to Review. -14- The Respondent appealed to the being dissatisfied with the refusal to grant special leave to apply for Review filed an appeal to the High Court. When the appeal was heard the learned High Court Judge proceeded to review the Magistrates Court Judgment, received fresh evidence of ownership of property by the Appellant and in its judgment delivered on 21St of September 2016 ruled in favour of the Respondent by holding that the property was subject to property settlement by the Deputy Registrar. The Appellant has advanced six grounds ground of appeal as follows; 1. The learned judge erred and misdirected himself in law and fact when he held that the learned Trial Magistrate fell into error when he failed to take into account fresh evidence which was material but was not in possession of the Appellant, when the appeal before him was against the learned Magistrate's refusal to grant the Respondent special leave to review the Judgment dated 9,h October 2014. -J5- The learned Judge erred in law and fact when he held that it will be unjust to resend the matter back to the learned trial Magistrate, when the appeal before him was against the learned Magistrate's refusal to grant the Respondent special leave to review the judgment dated 9th October 2014. The learned Magistrate erred in law and fact when he made declarations which did not form part of the appeal as the appeal before him was against the learned Magistrate's refusal to grant the Respondent special leave to Review the Judgment dated 901 October 2014. The learned Magistrate erred in law and fact when he determined the whole appeal as if it was an appeal against the Judgment and yet the appeal was against the refusal by the learned Magistrate to grant the Respondent special leave to review the judgment dated 9th October 2014. The learned Magistrate erred in law and fact when he reopened the case on his own volition and reviewed the lower Court's Judgment without hearing the parties -16- and without granting the Appellant special leave to apply for review. 6. The learned judge misdirected himself when he held that there would be serious legal implications and delay in concluding the matter if it was reheard without regard to more serious legal cost implications and delay in conclusion of the matter on appeal which leave to appeal he gave. Counsel for the Appellant, Mr. Katupisha in grounds one and five submitted that the appeal before the Learned Judge was against the Learned Magistrate's refusal to grant the Respondent special leave to review the Judgment dated 9th October, 2014 and not against the actual review of the judgment itself. He argued that the Learned Judge erred in Law and fact when he proceeded on his own motion to review a Judgment that was not his and by so doing the Appellant was not heard on the review. In support of this argument he cited the case of Zambia Telecommunications Company Limited Vs. Mulwanda and Ngandwem where the Supreme Court held that the Learned Trial Judge had erred in law by reviewing her Judgment when there was no application for review before her. Further that by proceeding on her own motion -J7- to review the Judgment, the Appellant was not given a chance to be heard on the review. In ground two, it was submitted that the Learned Judge erred in law and fact by refusing to resend the matter back to the Learned Trial Magistrate. The gist of the argument in ground two is that the Appellant suffered injustice as he was not afforded the chance to be heard on the application for review and that the Learned Judge ought to have sent the matter back to the Subordi ate Court to hear the application for review. In ground three, the Appellant argued that the Learned Judge erred by making declarations which did not form part of the appeal namely that: The property subject to these proceedings forms part of Matrimonial property; The orders by the learned trial Magistrate in respect of property settlement are set aside; The matter is referred to the learned Deputy Registrar to deal with the issue of property settlement holistically following the dissolution of marriage within 30 days from the date hereof on application by either party; Ordinarily costs follow the event unless good cause is shown why the successful litigant should not harvest the -18- fruits of his successful suit. The costs are in the discretion of the court but in exercising the discretions, it must be judiciously exercised. In this case the genesis of the case is that the litigants have been married for over 2 decades. The gist of the case is that each parry bears its own costs. It was argued that the Learned Judge ought to have strictly determined the appeal before him as opposed to making the above declarations. As authority the case of Kangwa Simpasa and Yu Huizhen Vs. Lackson Mwabi Mwanza(2) was cited in which the Supreme Court held that: "We wish to state that this appeal is only against the ruling on the application to review judgment. The above two arguments by the Appellants are challenging the foreclosure and writ of possession and the type of claim granted. These matters are not subject of this appeal. If the Appellants were not happy with the decision in the main matter, they should have appealed against the decision instead of bringing issues from the main judgment in this issue." It was contended that because there was no application to review the Learned Judge misdirected himself at law and lacked jurisdiction. The only issue before him was the refusal by the Magistrate to grant special leave to review. -19- In ground four, the Appellant's gist of argument is the same as ground 3 namely that the court ambushed the Appellant by determining the appeal as if he was determining an appeal against the main judgment. We were drawn to the attention of the case of Antonio Ventrigilia & Manuel Ventrigilia Vs Eastern and Southern African Trade and Development Banle3), where it was held that: "It has been laid down in a plethora of authorities that in order not to ambush the other party, only issues that were pleaded and or raised in the court below can be raised on appeal because the Supreme Court is a court of record. And only in very exceptional cases is the Supreme Court obliged to receive evidence". In respect of ground six, it was the Appellant's argument that it was a misdirection on the part of the Learned Judge to refuse to send the matter back to the Subordinate Court to be reheard on account of serious legal cost implications and delay in the conclusion of the matter. Counsel for the Appellant added that although the Learned Judge granted leave to appeal on one hand, it contradicted itself, on the other hand by refusing to send the matter back to Subordinate Court on account of legal costs implications. Such considerations ought not to have been taken into account and miscarriages of justice should not be condoned 410- by the Courts. We were referred to the case of JCN Holdings Limited Vs. Development Bank of Zambia (4) where it was stated that; "... While we sympathise with the parties that ordering a retrial will lead to a further delay in the disposal of this matter, we are of the considered view that this Court cannot cast a blind eye to the miscarriage of justice that occurred in the court below. The prayer by Counsel for the Appellants that this Court should decide this matter on its merits, is in effect, an invitation to this court to endorse the miscarriage of justice aforesaid." It vitas submitted by the appellant that we uphold the appeal and set aside the Judgment of the court below with costs. In response to the grounds of appeal advanced, the Respondent submitted that the Judge in the court below was on tera firma when he reversed the judgment of the Learned Trial Magistrate. The Respondent's gist of argument is essentially that the finding of fact by the Learned High Court Judge namely that the Appellant is the lawful owner of the property cannot be reversed by the Appellate Court unless there was a misdirection, or that the judge took into account matters which he ought not to have taken into account. As authority the case of Nkhata and Others V the Attorney General Mwas cited where the court laid -111- down the instances upon which a finding of fact made by a lower court may be reversed by an appellate court. The Court stated as follow; "By this grounds of appeal the Appellant, in substance attacks certain of the learned trial judge's findings of fact. A trial judge sitting alone without a jury can only be reversed on fact when it is positively demonstrated to the Appellate Court; By reason of some non- misdirection or otherwise the judge erred in accepting the evidence which he did accept; or In assessing and evaluating the evidence the judge has taken into account some matter which he ought not to have taken into account, or failed to take into account some matter which he ought to have taken into account; or It mistakenly appears from the evidence itself, or from the unsatisfactory reasons given by the judge for accepting it, that he cannot have proper advantage of his having seen and heard the witnesses; or In addition the case of Attorney General Vs Peter Mvaka Ndhlovu(6) was cited where the Court highlighted the conditions upon which findings of a trial judge may be reversed. It was argued by the Respondent's Counsel that Order 47 Rule 21 of the High Court Act Chapter 27 of the Laws of -.112- Zambia empowers the court to give any judgment and make any order that ought to be made. Notwithstanding that an Appellant has asked that part of a decision be reversed or varied. It was further argued that the reversal of the Magistrate Court's ruling by the Lower Court allowed for the matter in controversy i.e. the ownership of the house to be determined in its finality, enabling justice to be served. As authority the case of Wilson Masauso Zulu V Avondale Housing Project Limited m was drawn to our attention where it was stated that the trial court has a duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in its finality. The Respondent's Counsel went on to submit on the powers of the Appellate Court to reverse a Judgment or Order made in the court below. It was submitted that though the High Court Judge below did not address the issue of the application for special leave to review, the reversal of the Magistrate's decision was within the jurisdiction of the court below sitting as an Appellate Court. The case of Charles Osenton and Company V Johnson (8) was cited where the law relating to reversal by a court -113- of appeal of an order made by the judge in a court below was discussed. It was submitted that the Appellant had failed to prove lack of jurisdiction on the part of the High Court Judge to reverse the judgment of the Magistrate. It was prayed that the appeal be dismissed in its entirety. We have considered the appeal, the record of the proceedings from the Local Court up to the High Court. We have further considered the Judgment of the High Court, the arguments advanced and the authorities cited by both Parties. Grounds one, four and five are related and shall be dealt with as one. The issues to be determined are as follows; Whether the appeal before the Judge in the Court below was only against the refusal by the Magistrate to grant special leave to review. Whether the Learned Judge erred by proceeding to review the Judgment of the Subordinate Court Magistrate. We have perused the record of proceedings both in the Subordinate Court and the High Court. In our view it is not in dispute that upon the Magistrate delivering a judgment dated 9th -114- October 2014, the Respondent applied by way of Summons for Special Leave to Review under Order 38 Rules (1) and (2) of the Subordinate Act Chapter of the laws of Zambia. This provision is worded exactly the same as Order 39(1) and (2) of the High Court Rules Chapter 27 of our Laws. The above cited Orders, vest power in the Court to review its own judgment or decision. This power is discretionary. Order 39(1) provides as follows; "Any Judge may, upon such grounds as he shall consider and, sufficient, review any judgment or decision given by him (cid:9) upon such review, it shall be lawful for him to open and rehear the case wholly or in part, and to take fresh evidence, and to reverse, vary or confirm his previous judgment or decision". Order 39, Rule 2 of the High Court Rules further provides that:- 'Any application for review of any Judgment or decision must be made not later than fourteen days after such Judgment or decision. After the expiration of fourteen days, an application for review shall not be admitted, except by special leave of the Judge on such terms as seem just" An application for review must be made within fourteen days failing of which such application shall only be admitted by Special Leave of the judge. S -115- The Subordinate Court Magistrate did not even consider the application for special leave to review. He instead declined to review the judgment without considering the issue of special leave to apply for review. This in itself was a procedural error on the part of the Magistrate. It is our firm view that the appeal before the Learned Judge was against the Magistrate Court's decision dated 23rd January 2015 declining an application for special leave to review the Judgment of the Trial Magistrate dated 9th October 2014. Instead of determining that application, the Learned High Court Judge misdirected himself by proceeding to consider fresh material evidence adduced by the Respondent and further misdirected himself by reviewing the judgment of the Subordinate Court on his own motion. The procedural lapses by both the Subordinate Court and the High Court were grave. This appeal is simply about the civil procedure employed in applications for review where 14 day time frame within which to apply for review has lapsed. The procedure is simply that an application for special leave to apply for review must be made and only after leave has been granted can the applicant proceed to file the actual application for review. The court can only consider whether the application for review should be granted • • after the actual application for review has been filed. In this regard, we refer to the Supreme Court decisions in the cases of Kangwa Simpasa and Yu Huizhenvs. Lackson Mwabi Mwanza(2) and Codeco Limited Vs. Elias Kangwa & Others (9) where in the latter cited case the Supreme Court in determining the appeal against refusal of special leave to apply for review discussed the procedure in an application for review made after a period of 14 days had lapsed from the date of the judgment or decision. It was stated in reference to Order 39 (1) and (2) that; "From the above, there are two important points to note. Firstly the power of the Judge of High Court to review his own judgment or decision id discretionary. Secondly the law prescribes a limited time frame of fourteen days from the date of the Judgment or decision to be reviewed within which an application for review may be made. Thereafter, prior special leave of the Court is required and is in the discretion of the court." In respect to ground two, which we shall determine last, the issue is whether, the Learned Judge erred in law and fact by refusing to refer the matter back to the Learned Trial Magistrate. In ground three the issue is whether the Learned Judge erred in law and fact when he made declarations not forming part of the appeal namely that the property forms part of the matrimonial property, is subject to property settlement by the • • -J17- Deputy Registrar and setting aside the Orders of the Magistrate Court in respect of property settlement. We agree that the Learned Judge ought not to have made the above declarations because the appeal was only in respect of the ruling refusing special leave to review. In fact we are at a loss as to how the learned Judge lost track of the actual appeal before him when at the beginning of his judgement he began by stating correctly that; "This is an appeal from the Ruling of the learned Thal Magistrate dated 23rd January 201$ declining an application for special leave to review the Judgment of the learned trial Magistrate" Grounds 1, 4, and 5 essentially all argued that the appeal before the High Court was against the refusal to grant the application for special leave to review the judgment of Magistrate Court and not the actual review application under Order 39(1) nor an appeal against the judgment. We agree that the Learned Judge had no jurisdiction to proceed to review in the absence of special leave to review judgment made by the Magistrate. In ground six the issue is whether the Learned Judge erred in law and fact when he held that if the matter is reheard, there would be serious legal costs implications and delay. It is our view that, the Learned Judge misdirected himself by alluding to the legal costs and delay implications as the basis for not sending back the matter to be reheard on the application for special leave to apply for review made out of time. There having been a miscarriage of justice, the lower court ought not to have condoned the serious procedural lapse in respect of the application for review. Courts of law do not condone miscarriage of justice. The last issue to be determined in the appeal is whether it would have been an injustice for the learned Judge to have sent back the matter to the learned Magistrate. In our view the Learned Judge ought to have first determined the appeal in respect of the refusal of the application for special leave to review. Upon holding or finding that the Magistrate ought to have granted special leave to the Respondent to apply for review of the Judgment, the Learned Judge then ought to have sent the matter back to the Learned Magistrate to hear the application for review of his judgment. This would have afforded the other side an opportunity to oppose the application for review. -119- We are of the view that the learned Judge erred in law and fact by not sending back the matter to the Subordinate Court. We accordingly uphold the appeal and set aside the Judgment of the High Court. We are of the view that it would be quite impossible for this Court to substitute the magistrate's judgement with our own. We have no alternative therefore but to send back for retrial and we accordingly order that the matter goes back to the Subordinate Court for retrial before another Magistrate. For avoidance of doubt the order of retrial before another Magistrate of the Subordinate Court is in respect of the initial appeal from the Local COurt. The parties shall each bear their own costs. F R. Mc enga, S DEPUTY JUDGE PRESIDE COURT OF APPEAL ' F M. Chishimba M. M. Kondolo, SC COURT OF APPEAL JUDGE (cid:9) COURT OF APPEAL JUDGE