Fanny Muliango and Anor v Namdou Magasa and Anor (SCZ/8/96/88; SCZ JUDGMENT NO. 26 OF 1989) [1989] ZMSC 138 (8 June 1989)

IN THE SUPRt}lE COURT OF . ZAi"l8IA HOLDEN AT LUSAKA (Civil Jurisdiction) ( 153 ) SCZ JUDGMENT NO. 26 of 1989 SCZ/8/96/88 0 FAl'lNY MULIANGO and SAMS01J MULIAHGO -v- N,~i-;IDOU 1<il\GASA and MURUJA TRANSPORT & FARMING COMPANY :..rnITEO · ·Jst Appellant 2nd Appellant 1st Respondent 2nd Respondent CORAM: Ngulube, D,C. J.; Gardner, AJ. S .• Chaila. J. S. 16th February, and 8th June, 1989 D .• M. Luywa of D. M. Luywa & Cd for the -tlfJp.~l\Unt li. G. Mbaluku of Mbalu~u Siki!ZWe & Co. for the respondent 'f ,. l- Gardner, AJ. S., delivered the J ;idgment of the court. · JIJOG1>lENT cases ~efe~red to: ( 1) (2) (3) WaterweUs Li1!1ltec! --v~ Jaekstm (1934) ZR 99 Ka!Jife "f,;l;,a~p,,kt -\J- !';::ess lra\>Sprrl: { 1975) Limited 1934 . ' ZR 43 < ;, . . ~l.tfr/!iti:m -'Y" f. ll,'JiW,l'ti P, lio:ripar,J · dniif~cl ( 1943) 2 a s (4) Sfi'fri,\'11:fr. '"V~ '14i:r.i,1. ( 1979) ZR 145 . ER 34 This is an appeal against a judgment of a High Court judge allowing an appeal from a c!~plity registrar's refusal to set aside a judgment in default of defence. appellants as the plaintiffs and to the respondents as the defendants as they were originally in the court below • In this judgment we will refer to the ••• /J2 . . () 0 - J2 ., ( 154 ) The history of the proceedings in thl.s case was that the ;'\ consent sum,nons plaintiffs issued a i~rit on the 24th of September, 1986 claL11ing damages from the first defendant for personal injuries and di'image to a motor vehicle. arising ·. o!.lt of a motor accident aileged.,y caused by the negligence of t:1" first defendant. for directions providing for t;10 filing of the statement of claim within twenty one days of that order and for filing of U1e defence within twenty one days after receipt of the sti\tement of claim was issu<!d on the 18th of Fcbnury, 1987, and, on the Silm:~ date, a consent order for directions was made /Jy the court providing that the statement of claim b-, delivered witl1in tw .. mty onJ d11ys of the date of the order and that the defence bc'dclivc!red ,1itt1ir. fourteen days of the receipt of the statement of claim. The discrepancy in the · number of days was not dr;iwn to ti12 ett~ntion of the deputy registrar, but on appQal to tiic learned appell 11.te judge, it appears to hav2 b2C?;1 accapted that the puriod of tNenty one days for deliv2ry of the ci-.;fence should b0 udhered to. The statement of claim was deli ver-ed to th2 d2Fondants t.svocr,tos on on the 6th of May, 1987 {nearly two months after t11e date lcsid down in the order for directions). The defenc,,, dc.t.::::1 tt12 1st June, 1987, was served on th,, plaintiff's advocat2s,but in tiw meantime. they had signed judJ:r12nt in default of def 2nc2 on tr10 29th of May, 1987. The appll cation to set i.lside judgm.::nt wa.s r,nde to the deputy registrar on the 'i2th of ,\ugust, ·J9il7, ,·.;,d tll~ d .,,;,!tJ registrar delivered a reserv2d ruling, refus;.ng to set asi.d2 tile judgment, on the 19th of Janu.:iry, 1988. was made for an assessment of damages on tt1.2 10th of July, 19::ll, and, on the 2nd of February, 1938, an assessment of dam,1ges i;i the sum of K308,G05-00 and 10% intorest wcs madG witt1 th2 cor:s-:n-t o; the .;, defendant. Subsequently on t:1; 20th of February, ·193:; there was. an order by conscn~ for 11 writ of cx-,cution to b:c .~t.cJ._j and for the defendant to Pil. Y-1 minimum of !(10,JOJ--00 within ninGty days and, thereafter, instalm211ts in r0sp-,ct of th2 ~ss2ss~.r: damages. On the 10th of Mar:h, 1983 the plaintiffs apr 1 i2d to join Maruja Transport Company Limit2d :.:s c,n additio,:::.l cJcc .. :;·'. ::r: and an order as, prayed was iranted on th2 17th of :1:1rch, 1 S3B. On the 7th of April, 1988 tl1c, app211ants fil2c i\ ncc~c,c ::;F out of time agai.nst the registrar's refusal to s..::t asid\, tf]..:: <~2f:ul c j udgm,mt, and, on the 30th of June, 1938, th c ,;ppc l Lt,: ~.'. __ ,, ·1 , ...... ' Jn t;1::, r:vsintL110 ,Jpplic~tic;1 I .. , • o;, V...:. ( 155 ) J3 delivered a reserved judgme~t allowing the appeal ~nd setting aside the default judgment, with an orde~ that, if any damages had already been paid, they must be paid into court by the plaintiffs. that the plaintiffs now appeal. The learned deputy registrar in his reserved ruling said that the case of Waterwells Limited v Jackson (1) applied, and he went on to say that the default judgment was obtained well aft~y'the default in delivery of the defence and he had not/2een given i satisfactory explanation for the default. It is against this judgment . ' / /. ' ,li➔e/then Si!id that there aµpeJred to be little or no . ·' ,defence on the part of tf1e defendant, and referred to / /'the fact that the fl rst defendant had pleaded guilty to a charge of careless driving, for which he incurred a fine of KS0-00. For this reason he found that the defendant had not disclosed a defence on the marits. / , 0 / / Q In her judgment the learned appellate judge noted It was noted that the defence was dated the 1st thit the statement of claim was served two months after the due date and that judgment in default was entered twenty three days after serv.ice of th0 statement of claim. June, 1987 and the learned judge found that the delay was not inordinate nor had there ben mala fides. the same judgment it was found that tile dfcnuant only consented to the quantum of damages on assessment and it was incorrect to say that the judgment had been consented to. Tha learned trial judge furth,,r '.found that the defence furnished ~Y the first defendant appeared to be valid and would succeed if sufficiently supported by evidence. was a case where a full tri.31 11as necess::iry to establii,sh liability and the <lefen~nt s;1ould have an opportuni}Y"' to defend. In c'onsequenc'e, it was found that this In On behalf of the appell1nt, Mr. Luywa supported the finding of the deputy r~gistrar and argued that there was no defence on the merits and that, in any : •.. /J4 .. 0 0 ( 155 ) event, the vehicle of the idcfcndant was not insured. We will deal with this l1tter point immediately. We have no hesitation in saying that the existence or otherwise of a valid insurance policy has no relevance whatsoever to the question of whether or not a party has driven a motor car negligently. The existence of an insurance policy is only relevant to the question of joining tile insurance company as a defendant, and in this particular case itis apparent that the plaintiffs have abandoned thefr claim against the insurance compa'ny. As to the argument that there was rio defence on the merits, we have already noted that the learned trial judge found that the defence furnished by the defendant appeared to be val.id and would succeed if supported by evidence. He agree that. in the defence. the first defendant alleged contributory negligence on the part of the plaintiff and gave thrc,, particulars of such ncglig::mce. In the circumstances it cannot possibily be said that the defendant failed to disclose a defence on t:1;; merits. He have obs.?rved that, the plaintiffs put forward in the plaintiffs' hiads of argument the same argument as was used by tile learned deputy registrar in his ruling when he said that the fact that the first def,mdant had pleaded guilty to a charge of car2less driving and had been fined K50-00 t1ppeared to contradict his Jffidavit that he i1ad a defence to action. page 46, this court rulGd that the provision of the Civil Evidence Act 1968 of Englund to the effect that evidence of criminal proceedings could be referred to ;,nd t11ken note of to assist a decision in civil proceedings, did not apply in Zambia, because we have an Evidence Act of our own which does not contain such provision. It follows, therefore, that the decision in the case HOJ.rlngton v F. Hewthorn & Company, Limited (3), to the effect that a certificate of conviction cannot be tendered in evidence in civil proceedings, still applies in this country on tlle ratio dGcidendi that criminal proceedings are not relevant and ilre rES inter alias acta. In the same case we disapproved the High Court judgment in the case of Siwinga v Phiri (4) which was to ::he opposite effect. It follows that the reference by the learned deputy r;cgistrar to whnt was in In the case of R:-be"Trr'.!~a~@l:'i'.<'CtvU.dn,1~•f. Presi;•trci;1Srort {•Jgl§.)l~(2), :rt ••• /J5 •, 0 - ( 157 ') fact a signing by the first defend~nt of an admission of a guilt form, (not a plea of guilty}, was improper and certainly not a ground for saying that the obvious defence of contri_biJtory negligence raised by the first defendant was not a defence on the merits. We would cOfllllent here that a number of misdirections 6rdse in the learned deputy registrar''s judgment. He said that-~he default judgment was obtai.ned ''well after the default octurred". :.. '). ,- ! In fact th2 judgment was. obtained either , two days or nine days after the default had occurred, and thi~ could hardly be said to be "well after". Furthennore the learned deputy registrar, after referring to this court's judgment in th'e case of Waterwells { 1), to the eff2ct that tifa most importa11t corrsicleration was whether th2re was a defenc," to an action, and · thilt it was pr2feri:'il'..) be prevented from so doing by proc:cclural i,regululities, fail.!d to apply the prirkiplcs set out in that case. that cases. should cdme to trial rather than I Mr. Luywa argued that, even if tl1e first defendant had a defence, further tircumst,mces had intervetied, namely, that tha clefenclants had co_nsented to judgmeilt in a certain sum of damages and no appeal could possibly lie to a judge in chambers after such consent judgment. In her judgment the learned appellate judge specifically found that the defend<mt had only consented to tile assessment of th,, quantum of damages, and that it was hot correct to say . ttiJt the jUd!;)ment obtairted was cons2nted to. We i;ec no reason to find fault with the learned judge's finclirlgs in this respect. The defehclant's corlsent to the assessment of the quantum of damages in a tertaitl In m-"W sum was in rlo way a consent to a judgmerlt in that sum. cases the damages arising out of u claim are agree(] between -l:l1e parties leaving the question of lilbilitY to bo dealt with by the courts. The subsequent agreement to pay in instalments to avoid execution Jn no w,:,y . Jffectecl the ri,,esti.on of whether or not judgment had been consented to. fhis ground of appeal. must, therefore, also () 0 Q (158) Mr. Luywa further argued that the appeal to the judge in chambers was seventy two days out of time, and that the defendant should have made specific application for leave to appeal out of time, following which the learned appellate judge should have specifically dealt with that issue when delivering her judgment. time and then went on to deal with the We note that tl1e notice of appeal agaist the deputy registra' s decision is headed "ititice of aweal tD a j~ in Chrnters (Cut of ture)". The learned appeallate judge specifically noted in the first paragrapl1 of her judgment that the appeal was out of appeal, and, in the last paragraph, to allow the appeal. It is apparent to us that the learned appellate judge, being well aware of the fact that the appeal was out of time, and having heard the arguments of counsel as to the acceptance of tile appeal out of time, exercised her discretion to accopt the ch0fendant' s ;;1ethod of application for leave t; ap;i,;111 out of time and in view of the fact that the cpp:::al was thereafter heard and determined, obviously c.:cic!..::c! to gr,,nt L:?clve to appc:al out of time. He are u;-,2'JL to acc,;p-t Hr. Luywa I s argument that the question of le11ve to ,,ppccl should have been dealt with more specifically by tl10 learn,,<! ilppeallate judge. Hs: are satisfied that the matter w1s in the learned judge's mind and was· properly dcc1lt with. This ground of appeal must also fail. OnG further point made by hr. Luywa was that it would be unfair to t/12 pl;;intiffs to nllow the learned appellate judge's judgment to stand because it included an order that any nonics paid under the assessment of damages by the d2fendants to the dcfendc1nts to the plaintiffs should be paid into court pending the tri:11 of the action. This, said Mr. Luywa, would cause suffering to the plaintiffs and was a reason why the original tLfault judgml;nt should not b2 set 2side. In reply to this Mr. f'lbal1.1!rn indicated that tl10re was no int;;:ntion on the pJrt of the defendants require complic:nce with th12 learned judg2's order for the payment into court. We accept trlis ;:;s en und,.?rtaking by rir. Mbaluku on bdi,::lf of his clients, and it follows, therefore, that til<, µlaintiffs will not have tc comply with that part of ••• /J7 1·: ·l : I \ ,: ,, . ' ' 0 0 - J7 - ( 159 } tile learned appellant judge's order that relates to a payment into court by the plaintiffs of any monies paid in satisfaction of the assessment of damages by the defendants to the plaintiffs. Tl1is ruling will, of course, not affect the position of the p,2rties after full trial when the liability of each party will be detcrminGd by the trial judge. For the r0asons which 1·nve given, this appeal is dismissed with costs to th(, defendants in any event. M. M. \J. S. Ngulube DEPUTY CHIEF JUSTICE ! ,. ., o <><> o a o <> .,., o oo ,o o <> <><> 0 . , . , •Doc, e>oo• <>•• •• 8. T. Gardner ACTING SUPREME COURT JUDGE n<>•oooooo•<><> . . . . . . . . . . . . . ., .. .,.,.,.,•••••••'!" M. S. Ch;ii L.1 SUPREME COURT JUDGE I ! " '' I . r