Finsbury Investments Limited v African Banking Corporation and Ors (APPEAL NO. 227/2022) [2023] ZMCA 305 (22 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL NO. 227 /2022 BETWEEN: FINSBURY INVESTMENTS LIMITED APPELLANT AND ~-,i,i'7i"·· '~ -, ,.. ·, :t:. -- ---:: . J:;;, t .- . .,-.... 'llJ'A1 -· / I/ AFRICAN BANKING CORPORATI ~~[2 z NO '18rT~ Et:!PONDENT J V2023 ,., CLE. RK"";; ;~r / J "">\ 'f I ii I ZAMBIA LIMITED (TA ATLAS MA FINANCE BANK ZAMBIA LIMITED ~0 i -_ ;2lW ~RESPONDENT 0 ., - _, IMBWILI INVESTMENTS LIMITED 3RD RESPONDENT CORAM: KONDOLO S. C., MAJULA, AND CHEMBE JJA On 16th November, 2023 and 22nd November, 2023 For the Appellant Mrs. S. Kalima Banda - Messrs J & M Advocates For the 1st and 2 nd Respondents Mr. F. Mudenda- Messrs Chonta, Musaila & Pindani Advocates For the 3 rd Respondent Mr. E. B. Mwansa S. C - Messrs EBM Legal Practitioners JUDGMENT CHEMBE, JA delivered the judgment of the Court Cases referred to: J2 1. Collect v Van Zyl Brothers Limited (1966) ZR 65 2. Myers v Myers (1969) WAR 19 21 3. Castellow v Somerset Country Council (1993) WLR 256 4. Birkett v James (1977)2 ALLER 801, 5. Finance Bank Zambia Limited v Dtmitrios Mono Kandilos & another (2012} Vol ZR 484 HC 6. ABB OY v Luanshya Copper Mines PLC SCZ Judgment No 7 of 2017 7. G4S Secure Solution Zambia Limited v Lupupa Kabezya Lewis SCZ 170/2015 8. Dipak Kumar Patel and another v David Kangwa Nkonde Selected ruling No. 33 of 2017 9. Muhammed Jabi v Yakub Mulla and 2 others Appeal No 105 of 2019 1.0 INTRODUCTION 1.1 This is appeal against the decision of Judge B. Shonga who refused an application for an adjournment and dismissed the Appellant's action for want of prosecution. 2.0 BACKGROUND 2.1 The Appellant who was the Plaintiff in the court below commenced an action in the Commercial Division of the High Court. The matter was set down for commencement of trial on 26th July 2022. When the matter was called, Counsel for the Appellant informed the Court that she was not ready to proceed J3 as she had just taken over conduct of the matter as Counsel who had conduct had been suspended by the Law Association of Zambia. She also informed the Court that the other advocate who had knowledge of the matter left the firm on 4 th July 2022. 2.2 The learned trial Judge noted that the notices of hearing were issued on 7 th February 2022. She also held the view that upon suspension of the Counsel with conduct the firm should have identified all the matters that were coming up for trial and advised the clients to seek alternative Counsel. She dismissed the action for want of prosecution. 3.0 THE APPEAL 3. 1 Aggrieved with the decision the Appellant appealed to this Court advancing the following grounds: 1. The learned puisne Judge erred in law and fact when she ex propio motu, elected to inflict the excessive and punitive sanction of dismissing the matter when she had several other options available taking into account that this was very first time the matter had come up for trial and there were no previous adjournments of the trial on the Court record by either party; 2. The learned putsne Judge erred in law and fact by disregarding the provisions of order (it) Rule 9 of the High Court Act Chapter 27 of the laws of Zambia by virtue of which she could have either awarded costs for the adjournment to the Respondents or condemned the Plaintiff to a hearing Jee payable before the next J4 hearing date rather than dismiss the matter for want of prosecution; 3. The learned puisne Judge erred in law and fact when she equated administrative issues within the firm seized with conduct of the matter on behalf of the Plaintiff, the Appellant herein, to the failure to prosecute the matter when the same does notform sufficient grounds to dismiss the matter for want of prosecution; 4. The learned putsne Judge erred in law and fact when she took the Plaintiff seeking an adjournment owing to the circumstances indicated to her Ladyship, as a failure on the part of the Platntiffto prosecute the matter without taking into consideration that the Orders for Directions had been complied with. 5. The learnedpuisne Judge erred in law and/act when she/ailed to take into consideration the fact that the circumstances prevailing had made it impossible for a notice of intention to adjourn to be filed and further failed to take into consideration the fact that courtesy had been extended to Counsel for the Defendants by informing them before hand of the Platntif.rs liability to proceed. 4.0 THE APPELLANT'S ARGUMENTS 4.1 The Appellant filed heads of arguments in support of the appeal on 3rct October 2022. In support of the first ground of appeal the Appellant submitted that although the granting of an adjournment was within the discretion of the Court, the discretionary power needed to be exercised judiciously and on JS established principles. We were referred to the cases of Collet v Van Zyl Brothers Limited1 and Myers v Myers2 where there was guidance that an adjournment should be granted where the refusal would result in injustice to one party. 4.2 The Appellant argued that the Judge in the Court below on her own volition chose an excessive and punitive sanction of dismissal for want of prosecution in the absence of such a request from the Respondents. 4.3 A further argument was that the learned Judge did not consider the principles highlighted under Order 35 Rule 3 (1) of the Rules of the Supreme Court 1999 Edition which are set out in Zambia civil Procedure Commentary and cases by P. Matibini. It was submitted the application to adjourn having been made for the first time could not lead to a conclusion that the Appellant had failed to prosecute the matter. 4.4 Grounds 2, 3, 4 and 5 were argued together. The Appellant called to its aid the case of Castellow v Somerset Country Counci13 where it was held that a Plaintiff should not be denied the opportunity to have his matter heard on the merits due a procedural default unless it prejudices his opponent. We were J6 also referred to the case of Birkett v James4, volume 37 of the Halsbury's Laws of England 4 th Edition and Finance Bank Zambia Limited v Dimitrios Mono Kandilos & another5. 4.5 It was submitted that the order by the Judge below was excessive as she had other options available. The Appellant contended that the authorities cited cautioned judges against being quick to dismiss matters for want of prosecution as it had the effect of depriving a litigant from having its matter heard. 4.6 The Appellant also referred to Order LIII Rule 9 of the High Court Rules which provides that a Judge may award costs and impose a hearing fee where the party applying for the adjournment has no firm reasons. 4.7 The Appellant submitted further that the Respondents would not have been not prejudiced if the application to adjourn was granted. The Appellant implored the Court to set aside the order of the Court below. 5.0 RESPONDENT'S ARGUMENTS 5. 1 The 1 st and 2nd Respondents filed arguments in opposition to the appeal. They submitted that there were no compelling and J7 exceptional circumstances upon which the court below could grant an adjournment and the court below exercised its discretion properly in dismissing the action. 5.2 Relying on the case of ABB OYv Luanshya Copper Mines PLC6 the Respondent challenged the Appellant's reliance on English Rules when we have a provision on adjournments in our own rules. 5. 3 A further argument was that the Appellant had failed to comply with the High Court rules which require that an application for an adjournment be made at least I O days before the date of hearing. 5.4 Our attention was drawn to the case of G4S Secure Solutions Zambia Limited v Lupupa Kabezya Lewis7 where the Supreme Court upheld the refusal to grant an adjournment. We were urged to dismiss the appeal with costs. 5.5 The 3 rd Respondent also filed heads of arguments in which it was submitted that the 3rd Respondent would abide the decision of this Court. It was however argued that the 3 rd Respondent should be awarded costs whichever way the court decided as it was not to blame for the failure for the matter to proceed. We JB were invited to consider the case of G4S Secure Solutions Zambia Limited v Lupupa Kebezya Lewis (supra) 6.0 HEARING 6.1 At the hearing of the appeal, the Appellant's Counsel placed reliance on the record of appeal and heads of argument filed on 3rd October 2022. She briefly augmented the arguments by reiterating that the application that was before the court below was for an adjournment but the court rendered a ruling. 6.2 Counsel submitted that want of prosecution imputed inordinate delay and absence of diligence in prosecuting the action. We were referred to the Dipak Kumar Patel and another v David Kangwa Nkonde Selected ruling No. 33 of 2017 in support of the argument. She submitted that in the present matter the Appellant had complied with the orders for directions and could therefore not be said to have been disinterested or wanting in desire to prosecute. 6.3 Regarding the issue of costs, we were referred to the case Muhammed Jabi v Yakub Mulla and 2 others Appeal No l 05 of 2019 where this Court ordered that costs would abide the final determination of the matter after referring the matter back J9 to the High Court for trial. 6.4 Counsel for the 1 st and 2 nd Respondents, Mr. Mudenda, submitted that he would rely entirely on the heads of argument filed. He urged the Court to consider the decision in the G4S secure solutions case that was cited by the Respondents. 6.5 For the 3 rd Respondent, State Counsel Mwansa relied on the heads of argument filed on 22nd October 2022. He submitted the Respondents should be awarded costs regardless of whether the appeal was allowed or dismissed as they were not responsible for the failure for the matter to proceed. 7.0 DECISION OF THIS COURT 7.1 Although the Appellant raised five grounds appeal, we have noted that they all relate to the perceived failure of the lower Court to exercise its discretion judiciously in refusing to allow the adjournment and dismissing the action for want of prosecution. We will therefore address all the grounds together. 7.2 Adjournments in the Court below are governed by Order LIII Rule 9 of the High Court Rules which provides that J10 "A Judge shall not grant an application for an adjournment except in compelling and exceptional circumstances." 7.3 The record of appeal shows that when the matter was called for commencement of trial on 26th July 2022, Counsel for the Appellant applied for an adjournment on the ground she had just taken over conduct of matter and had not had adequate time to go through the file. She explained the Counsel who had conduct had been suspended by the Law Association of Zambia and that his Co-Counsel had also left the firm on 6 th July 2022. 7.4 The Court below took the view that Counsel had ample time to identify all matters which had dates for trial and notify clients about the firm's predicament. She refused the application to adjourn and dismissed the action for want of prosecution. 7. 5 The question that we need to determine is whether, on the circumstances of this case, the lower Court can be faulted for having dismissed the action for want of prosecution. In this jurisdiction the overarching principle in civil matters is that matters should as far as possible be determined on their merits. 7.6 In Zambian Civil Procedure Commentary and Cases, the learned author cautions Judges not to be quick to dismiss Jll matter s for want of prosecution as it has the effect of preventing a litigant from having his matter heard. Judges were urged to exercise this power sparingly. 7.7 However, in recent years there has been a deliberate shift to balance the right to be heard and the need to dispose of cases expeditiously. In the case of G4S Secure Solutions Zambia Limited v Lupupa Kabezya Lewis Appeal No 170/2015, the Supreme Court upheld the d ecision of the High Court which refused an application to adjourn by a defendant after the Plaintiff's case was closed . The Supreme Court stated as follows: ''In our view allowing the application for an adjournment in the instant case would not have been in line with the broader interests of ensuring timely disposal of the matter in view of the fact that the Appellant had more than ample time to organize its witnesses and present its defence. We must emphasise that proceedings before our Courts are Court driven and the Court is expected to be in control of proceedings and ensure that matters are not delayed by unnecessary adjournments. It is trite that adjournments are one of the major causes of delays in dispensation of justice. Proper case management, therefore requires that the court should only grant adjournments in the most deservtng of cases bearing in mind all the relevant circumstances of the case." In the present ca se, the Appellant feels the lower Court's order wa s harsh considering that this was the first time an a pplication J12 to adjourn was being made at its instance and that there were serious administrative issues in the firm. However, the fact the administrative issues arose more than three weeks before the matter was called gave Counsel sufficient time to file a formal notice to adjourn as required by Order 33 of the High Court Rules. This would have put the Court on notice that the matter would probably not proceed. 7 .8 The requirement for a formal notice to adjourn to be filed at least 10 days before the hearing enables the Court to manage its diary better. Further Counsel for the Appellant extended the courtesy of notifying counsel for the Respondents but ignored the Court. 7. 9 The Appellant has passionately argued that this was only the first application to adjourn and the Court should have condemn it in costs and a hearing fee. The G4S Secure Solutions case (supra) addressed this issue and held that a party was not entitled as of right to a first adjournment. In our view there were no compelling reasons advanced by the Appellant to support the application to adjourn. We therefore cannot fault the judge in the court below for refusing the application to adjourn. 7. 10 However, the issue in contention is the decision to dismiss the J13 matter for want of prosecution. According to the transcript of proceedings, at page 695 of the record the learned trial judge dismissed the matter for want of prosecution immediately after hearing the application to adjourn which she declined. 7 .11 Order LIII of the High Court Rules provides some guidance on how to proceed where an application for an adjournment lacks merit. The Order provides that the party applying for an adjournment may be condemned in costs and a hearing fee. The Order provides further that should the condemned party fail to pay the hearing fee before the next hearing date, the application shall be dismissed. The Order does not provide for dismissal for want of prosecution when the application to adjourn fails and suggests that the matter can only be dismissed at a subsequent hearing on failure to pay costs or hearing fee. 7.12 We agree with the submission by Mrs. Kalima Banda that the learned Judge in the court below had the option to adjourn the matter and condemned the Appellant in costs and a hearing fee. The learned judge below could have insisted that the matter proceed and allowed Counsel for the Appellant some time to J14 prepare for the hearing. 7 .13 If the Appellant's counsel had failed to produce witnesses or lead any evidence, then the trial judge should have recorded that the Appellant had failed to tender any evidence to support its claim. The matter would then have been dismissed for want of evidence. 7 .14 We also wish to state that the G4S Secure Solutions case did not address the issue of dismissal for want of prosecution but addressed the Court's discretion to refuse an application to adjourn, 7.15 In the case of Mohammed Jabi v Yakub Mulla and others (supra), we referred to Order 3 Rule 5 (12) of the Rules of the Supreme Court which guides that the two principles that should be considered where there is default are obedience of rules that aid the expeditious dispatch of litigation and the need to hear matters on their merits. In that case we held that the matter should have been struck out with liberty to restore. 7. 16 We are not satisfied that this was a proper case to dismiss for want of prosecution. We hold the view that there was no JlS suggestion that there had been inordinate and inexcusable delay giving rise to a substantial risk of not having a fair trial to warrant dismissal of action. 7 .17 We are of the view that the learned judge below erred when she dismissed the action for want of prosecution when the matter that was before her was an application to adjourn. 7.18 Regarding, the issue of costs, we sympathize with the Respondents who have had to incur unnecessary costs of defending the Appeal when they were not at fault in the Court below. Although the Appellant's appeal has succeeded, we are of the view it should bear the Respondents' costs. The circumstances of this case can be distinguished from the facts in the Mohammed Jabi9 case. In that case, we held the view that the Appellant had advanced compelling reasons for failing to proceed which is not the case herein. 8.0 CONCLUSION J16 8.1 We find that the appeal has merit and we allow it. The order dismissing the action for want of prosecution dated 26th July 2023 is set aside. The matter is referred back to the learned judge below for hearing. We award costs to the Respondents here and below as they were not complicit in the issue. s==:::::: __ <;;-_________ ~ --------------- M. M. KONDOLO S. C. COURT OF APPEAL JUDGE ,- -------~------------ B. M. MAJULA COURT OF APPEAL JUDGE ______ Ju:~ -------------- v. CHEMBE COURT OF APPEAL JUDGE