Francis Kabonde & 31 Ors v Bishop John Hard Mambo & 354 Ors (APPEAL NO. 91/ 2020) [2021] ZMCA 234 (6 August 2021)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 91/2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ------- ------- 0 6 AU 2021 FRANCIS KABONDE & 31 OTHERS I APPELLANTS AND BISHOP JOHN HARD MAMBO & 354 OTHE S RESPONDENTS CORAM: MAKUNGU, CHISHIMBA AND NG LUBE, JJA. On 16th June, 2021 and 6 th Au ust, 2021. For the Appellants: F. Mutale, Messrs. FM egal Practitioners. For the Respondents: N. S. Choonga appeari g with M. D. Lungu, Messrs. GDC Chambers. JUDGME T NGULUBE, JA delivered the judgment of he Court. Cases referred to: 1. 2. Khalid Mohamed vs The Attorney General 1982) ZR 49. Maxwell Mwamba, Stora Solomon Mb zi vs Attorney General, SCZ Judgment No. 10 of 1993. 3 . Samuel Mwape Sabi vs Finance Buildin Society, SCZ Appeal No. 67 of 2014. 4. Sithole vs The State Lotteries Board (197 ZR 106. -J2- 5. Vas Sales Agencies Limited vs Finsbury Investments Limited, Norman Mbazima (Sued as Caveator) and Registrar of Lands (1999) ZR 11. 6. 7. 8. General Pharmaceuticals Limited and 3 o Jhers vs Darius Chikulu Katuta Tata Zambia Limited vs Shilling Zinka (198(5) ZR 51. Kafusha and 65 Others, SCZ/ 176/ 2006. l Twampane Mining Co-operative Society L."mited vs E & M Storti Mining Limited, SCZ Judgment No. 20 of 2011. / 9. Access Bank (Z) Limited vs Group Five zcbn Business Park Joint Venture (Sued as a Firm), SCZ/ 8/ 52/ 2014. 10. Zambia Telecommunications Company Lil ited (Zamtel) vs Aaron Mweene Mulwanda, Paul Ng'andwe, SCZ Judgmen No. 7 of 2012. 11. Zambia National Commercial Bank Plc us Joseph Kangwa, Appeal No. 54/2008. 12. Waterwells Limited vs Wilson Samuel Jackson (1984) ZR 98. 13. Stanley Mwambazi vs Morester Farms Li ited (1977) ZR 108. Legislation referred to: 1. The High Court Rules, Chapter 27 of the La s of Zambia. I I I I Other works referred to: 1. The Rules of the Supreme Court, 1 965 (White Book) RSC, Volume 1, 1999 Edition. 2. Halsbury's Laws of England, 3 rd Edition, Volume 22. INTRODUCTION 1. This appeal is against a Ruling of tHe High Court delivered by the Honourable Mr. Justice M. Kondo!~ (as he then was), refusing to set aside an unless order which e~ tered judgment in default of appearance and defence against thl appellants. -J3- BACKGROUND 2. The background of this appeal that the respondents commenced an action in the High C urt against the appellants, the Chilanga District Council, the C mmissioner of Lands and the Attorney General, seeking amon others, declaratory reliefs. The appellants did not enter appear ce and defence within the period prescribed by the rules even t ough they had been served with the originating process. The ther defendants, namely, Chilanga District Council, the Com issioner of Lands and the Attorney General entered appearance and defences. 3. The lower court issued orders for directions which were not complied with by the appellants. T e respondents then filed a notice to enter judgment in default of appearance and defence against the appellants. After hearin the application, the lower court expressed the view that en ering judgment in default against the appellants would prejudi e the other defendants who had entered appearance and defenc , but it also expressed the view that the respondents were enti led to entry of judgment in default against the appellants as hey were not interested in defending the action. Therefore, t e court opted to make an -J4- unless order in which it ordered t e appellants to file their defence within fourteen days, failing which judgment in default would be entered against them. 4. The appellants later entered a cond'tional appearance without filing a defence and made an applic tion to set aside the writ of summons and the statement of c aim for irregularity, being statute barred and an abuse of the court process. This application was dismissed by the lo er court and the appellants did not take any further steps. 5. The matter went to trial but after o e witness had testified and had been cross-examined by t e other defendants, the appellants' counsel made an appl cation for leave to file the appellants' defence out of time. Th application was refused by the court below on 28 th February, 017, but its ruling was not appealed against by the appellants. 6. The respondents then sought leave of the court to enter judgment in default of appearan e and defence against the appellants, on 30 th March, 2017. T e appellants, instead of filing an affidavit in opposition against the application for leave to enter judgment, filed an applicatio to set aside the unless order -JS- on 14th June, 2017. They only filed a affidavit in opposition to the application for leave to enter judg ent on 20th June, 2017. 7. The application for leave to enter jud ment came up for hearing on 21 st June ' 2017. The respon ents' counsel raised a preliminary objection to the applicati n to set aside the unless order on the ground that the applic tion was incompetent and an abuse of the court process. It was argued that the appellants should have simply opposed the ap lication for leave to enter judgment in default instead of filing n application to set aside the unless order. Counsel for the r spondents contended that the application to set aside the unl ss order amounted to an indirect appeal against the ruling of 2 th February, 201 7. 8. These arguments were countered b the appellants' counsel, whose contention was that the law oes not allow for entry of judgment automatically merely beca se a defence has failed and reliance was placed on the case o Khalid Mohamed vs The Attorney General1. Counsel submitte that the writ of summons sought declaratory orders and furt er argued that a default judgment could not be entered wh re declaratory reliefs were sought. According to him, it was im ortant for all parties to be heard and therefore it was necessa for the appellants to be -J6- given the opportunity to present their efence. It was his further argument that the court had power to et aside any judgment by default. DECISION OF THE HIGH COURT 9. After hearing the parties, the court bel win its ruling determined both the respondent's application to e er judgment in default as well as the appellants' application to et aside the unless order. It found that the appellants did not ake any steps to address their failure to comply with the unle s order. The lower court pointed out that its unless order was 1 ter embedded in its ruling of 28 th February, 201 7, which crysta ized all the issues up to that point. The court was of the view that it was functus officio with regard to the decision that it ha made in that ruling, but the appellants had not taken any step to challenge the ruling. 10. The lower court observed that the ap ellants' application to set aside the unless order did not addr ss the reasons for their failure to comply with it, but was at acking its validity on the grounds that the unless order sho not have been issued because the reliefs sought by t e respondents included declaratory orders. It expressed the o inion that that the correct avenue for the appellants should have been to appeal against the -J7- ruling of 28 th February, 2017. It there£ re refused to address the arguments advanced by the partie on the issue, as it entertained the apprehension that cou sel for the appellants was trying to appeal against the ruling thro gh the backdoor. 11. The court below granted the respond nts' application to enter judgment on the terms of the unless order and dismissed the appellants' application to set aside the nless order. THE APPEAL TO THIS COURT 12. The appellants were not satisfied w1 the ruling of the court below and they appealed to this Cour advancing three grounds of appeal as follows: 1. That the Honourable court belo erred in law and in fact when it entered judgment in defi ult against the appellants despite the many compelling rea ons militating the entry of judgment in de/au lt; 2. That the Honourable court belo erred in law and in fact when it refused to set aside the u less order granting default judgment against the appellan despite the existence of compelling grounds to warrant the setting aside of the judgment in default; and 3. That the Honourable court erred in law and in fact when it entered judgment in de ult against the appellants without regard to the effect oft e said judgment in default on the other defendants. -JS- 13. Counsel for the parties filed heads of argument on behalf of their respective clients, which arguments they relied upon at the I hearing of this appeal. THE APPELLANTS' CONTENTIONS 14. On ground one, Mr. Mutale on behalf of the appellants started by pointing out that some of the reliefs s bught by the respondents in the court below were declaratory J nature. He then referred us to a number of authorities in which the Supreme Court has I pronounced itself on the law relating ro declaratory judgments. One of the cases which counsel cited is that of Maxwell Mwamba, Stora Solomon Mbuzi vs Attorney General2, where the Supreme I Court held that: " ... the court will not make a unless all the parties interested are before it, even if a eclaratory judgment I competent defendant is before the [court as in this case, the court will decline to make a ~eclaratory judgment I affecting interests of persons who ~re not before it." 15. The other cases referred to are Samul ! Mwape Sabi vs Finance I Building Society3 and Sithole vs The tate Lotteries Board4 • He further referred to Paragraph 1611 of alsbury Laws of England Volume 22 Third Edition, where the learµed authors explain that: -J9- "The power to grant a declara ory Judgment is a discretionary one, the discretion should be exercised with care and caution and judicia ly and with regard to all the circumstances of the case ~nd except in special circumstances should not be l xercised unless all I parties interested are before court ' 16. Mr. Mutale argued that the law does not allow for the entry of judgment automatically, merely beca se a defence has failed. In support of this argument, reliance as placed on the case of Khalid Mohamed vs Attorney General1 where it was held that a plaintiff must prove his case and if e fails to do so the mere failure of the opponent's defence does not entitle him to entered without due regard to the eliefs sought and the law relating to the entry of judgments in efault. 1 7. He further argued that Order XII oft e High Court Rules, provides for instances when judgment in defa lt can be entered and those instances do not include where decl ratory reliefs are sought. To substantiate his argument, Mr. Mut le referred to Order XII Rule (1)8 of the High Court Rules, which pr vides that: "In all actions not otherwise spl ifically provided for by the other sub-rules in case th~ party served with the -JlO- writ of summons does not app ar within the time limited for appearance, upon Jilin by the plaintiffs of a proper affidavit or certificate of s rvice, the action may proceed as if such party had appe 18. It was therefore his contention that th lower court fell into grave error by entering judgment in defaul when the matter should have proceeded as if the appellants ha appeared. 19. On the second ground, counsel for he appellants faulted the court below for refusing to set aside t e unless order because the order was essentially a default ju gment, which is not a judgment on the merits and can be either by a party applying to set it aside or by consen of the parties. It was his argument that an appeal could o ly be resorted to if the application to set it aside is refused. e were referred to the case of Vas Sales Agencies Limited vs Fi sbury Investments Limited, Norman Mbazima (Sued as Caveato and Registrar of Lands5 , where the Supreme Court stated that "We wish to observe that the pplication before the deputy registrar was not on merits and ordinarily no appeal lies agai decision not on merits." 20. Mr. Mutale further cited the case of Tata Zambia Limited vs Shilling Zinka 6 , where it was held hat there is no law which -Jl 1- prevents the setting aside of a defaul judgment which appears to have been perfected. It was his ar ment that while it could be true that there was failure to com ly with the unless order, that order was a judgment in default which could be set aside. He referred to Order 20 Rule 3 and O der 12 Rule 2 of the High Court Rules to emphasize that any ju gment by default may be set aside by the court. 21. It was counsel's contention that ev n if there was failure to comply with the unless order and the e was a delay of two years and ten months, that would still not be a ground on which to refuse to set aside a default judgmen . Counsel cited the case of General Pharmaceuticals Limited and Others vs Darius Chikulu Katuta Kafusha and 65 Others7 , where, according to him, a party had defaulted for three years but th Supreme Court held that the matter must be heard on the merits despite the unreasonable delay. He submitted th t the dispute in this case concerns the right to own land an the court cannot make declarations that affect individuals' ri ht to own land without the persons who are going to be affected eing heard. 22. In respect of the third ground, the ppellant's counsel pointed out that the reliefs sought by the re pondents were not specific -J12- to the appellants and the implication f the judgment in default was that if it is enforced, it would af ect the second, third and fourth defendants who had entered a pearance and defence. He argued that if the matter was allowed to proceed to trial with the other defendants and the other defen ants succeed, there was a likelihood of having two contradicto judgments in one matter. It was his contention that the court elow entered the judgment 1n default without good cause, proper principles and considerations. Counsel therefore u ged us to allow this appeal with costs. RESPONDENTS'CONTENTIONS 23. In opposing ground one, Mr. hoonga on behalf of the respondents ' submitted that the lo er court had issued an order for directions which required the a pellants' to enter appearance and defence within fourteen days, but the appellants' did not comply with it. He further submitt d that the lower court issued an unless order but the appellants also failed to comply with it. 24. Counsel contended that it is trite aw that court rules and orders must be strictly followed by litiga ts , as they serve to make the process of adjudication fair, just certain and even handed. To support his submission, he reli I d on a number of authorities -J13- including the case of Twampane M /ning Co-operative Society Limited vs E & M Storti Mining Limite',18 and the case of Access Bank (Z) Limited vs Group Five Zcon B~ siness Park Joint Venture I (Sued as a Firm)9. I I I i 25. It was his argument that the entry of judgment arose from the appellants' dilatory conduct and con~lmelious disregard of the I court's orders and the law. He furthf r submitted that the law under Order XII Rule 1(6) of the High/ Court Rules and Order 19 Rule 7(1) and (3) of the RSC clotHes the High Court with I jurisdiction to enter judgment in d efault of appearance and I I defence against a defaulting def enda~ . He argued that the entry of judgment in default by the court is permissible irrespective of ! I the reliefs sought. I 26. Mr. Choonga contended that des1 te claims for declaratory orders , it is trite law that granting/ declaratory judgment lies solely in the discretion of the couJt. He submitted that this principle was settled in a number of cases including Sithole vs I I The State Lotteries Board4 . Counsel a i ded that the exercise of the court's discretion entirely depends ln the facts of a particular case . It was his argument that the 1J wer court cannot be faulted -J14- for having entered judgment 1n defa1 t as the appellants had persistently defaulted. 27. On the second ground, the respondel ts ' counsel supported the decision of the court below to refus to set aside the unless order. He argued that Order 42 Rule of the RSC empowers the court to make peremptory orders s ch as unless orders, the effect of which, if not complied ith, is that the penalty prescribed in the order shall take effe t. He emphasized that the appellants in this case did not file a efence within the fourteen- day period given in the unless order, which led to the automatic entry of the judgment in default. 28. Mr. Choonga further argued that the law governing unless orders is not rigid in that the time s ecified in the order can be extended upon a prompt application being made by the affected party. In aid of his submission, co nsel relied on Order 3 Rule 5(9) of the RSC which gives power to he court to extend the time specified in an unless order. It w s his contention that the appellants were at liberty to apply fi r extension of time but they filed a conditional memorandu of appearance and an application to set aside the writ of s -J15- I 29. He submitted that the appellants' apk lication to set aside the writ of summons was dismissed by he lower court and this entailed that there was no memorandu of appearance at all. He argued that the correct avenue availa le to the appellant was to appeal against the ruling of the lower ourt and not to attack the unless order and the entry of judgm nt in default because the court was functus officio. 30. He contended that the appellants' plication to set aside the unless order amounted to an indirect ppeal against the ruling of the lower court. To support this argu ent, counsel cited the case of Zambia Telecommunications Campa y Limited (Zamtel) vs Aaron Mweene Mulwanda, Paul Ng'andwe 10 , w ere it was held that: "The general rule as to the a endment and setting aside of judgments or orders aft r a judgment or order has been drawn up is as Jolla s: Except by way of appeal, no court, judge or maste has power to rehear, review, alter or vary any judgme t or order after it has been drawn up, either in application made in the original action or matter, or in resh action brought to review such judgment or order. T e object of this rule is to bring litigation to a finality." 31. Mr. Choonga argued that there w re no compelling reasons advanced by the appellants to enable the lower court to set aside -J16- I the unless order. He submitted that although a default judgment can be set aside where the defendant <tliscloses an arguable case I I on the merits , the unless order culm inating into the default judgment against the appellants was J peculiar form of judgment I in default which was different frJ m the ordinary default judgments. I I 32. On ground three , Mr. Choonga subm itted that the lower court was on firm ground when it entered judgment in default. He I l argued that the entry of a judgment ih default did not prejudice I i ! the other defendants who had enterer appearance and defence as it was specifically entered against the appellants only. I Counsel submitted that the second, th ird and fourth defendants I were at liberty to proceed with their d ~fence at trial and in aid of his submission, he relied on Order 19 IRule 7(1) and (5) of the RSC. I In counsel's view, the judgment in de1ault could not be enforced I 33. against the appellants until final d l termination of the matter against the other defendants who hld entered appearance and defence. In support of his argument, e referred to Order 19 Rule 7(5) of the RSC. 34. Mr. Choonga submitted that if the ap eal is upheld, it is only fair that costs be awarded to the respond~nts because the appellants -Jl 7- are guilty of contumelious He argued that the respondents had been seriously prej diced and had expended great costs to prosecute this matter i the court below and to defend this appeal which lacks merit and is a mere sham. He referred us to the case of Zambia Natio al Commercial Bank Plc vs Joseph Kangwa 11 , in which, according o him, the Supreme Court held that a party guilty of blame wort y and dilatory conduct in their prosecution of a case should b condemned in costs. He also cited the case of Waterwells imited vs Wilson Samuel Jackson 12 , in which it was held tha where a respondent has been put to great expense and inconv nience all traceable to the appellant's default, even though an ppeal succeeds the costs need not follow the event. He finally ubmitted that this appeal has no merit and it should be dismiss CONSIDERATION OF THE MATTER BY TH S COURT AND VERDICT 35. We have considered the evidence on record, the heads of argument filed by Counsel for the p rties and the authorities to which we were referred. Grounds o e and three revolve around the same issue and we shall address them together. At the heart of these two grounds lies the questio of whether the lower court was wrong to have entered judgme t against the appellants. In -J18- ground one, the appellants contend t at there were compelling reasons militating against the entry f judgment and therefore the court was wrong to have entered judgment in default against them. Under ground three , the appell ts have faulted the lower court for entering judgment in defa lt arguing that judgment was entered by the lower court withou regard to its effect on the other defendants . 36. On the evidence before us, it is clear hat the appellants did not enter appearance and defence despit having been served with the originating process. The court elow issued an order for directions, but the appellants still fai ed to file a defence within the fourteen-day period that had bee given by the court. It is against this background that the lo er court made an unless order, in which it ordered the appella ts to file a defence within fourteen days failing which a judg ent in default would be entered against them. 37. As rightly argued by Mr. Choon o, the High Court has jurisdiction under the rules to ent j r judgment in default of appearance and defence. The point is that while matters must be heard on their merits , litigants who sleep on their rights must expect the wheels of justice to tu n in their absence. This -J19- notwithstanding, the pleadings show that some of the reliefs sought by the respondents are declarc}tory reliefs. It is trite law that a plaintiff who seeks a declaratoi I judgment must proceed to trial and give evidence to prove their case. We are fortified by the case of Samuel Mwape Sabi vs Finance Building Society3 , I where the Supreme Court held as follo ws: I I "The only argument to consik er is whether the judgment in default was a deblaratory judgment ... Indeed, Atkin's Court Forms, cit ed by the appellant clearly states that the court! will not grant a I • declaration unless all the parties affected by and I interested in it are before thf court and that a I declaratory judgment cannot be/ obtained by default even in the face of a default by a / defendant and that a plaintiff who seeks a declaratory judgment must proceed to trial and give evidence!" I 38. We therefore, hold that it was wronJ in principle for the lower court to enter judgment in default wliere declaratory reliefs were I I being sought. 39. The other point is that the dispute b etween the plaintiffs and all the defendants appears to be inextri&able as it arises out of the same facts. It cannot be split to allow! the respondents to proceed to trial with the second, third and fou rth defendants, while there I is a judgment against the appellant~. The entry of judgment in I I I I -J20- default against the appellants was prejudicial to the other defendants who had entered appeara ce and defence, because the default judgment indirectly affecte the prosecution of their case. 40. We agree with Mr. Mutale that if trial proceeded and the other defendants succeeded, there was a likelihood of having two conflicting judgments over the sa e subject matter. It is therefore our considered view that th court below should have simply proceeded to trial even though here was no defence from the appellants . This would have allo ed the court to render a conclusive judgment resolving all the ssues in dispute. We find force and substance in grounds o e and three. They are accordingly allowed. 41. Coming to the second ground of appe 1, the issue is whether the lower court was wrong to have refus d to set aside the unless order which entered judgment in defa lt. The appellants contend that there were compelling grounds t warrant the setting aside of the judgment but the responde ts have argued that the appellants should have appealed agai st the ruling of the court below which incorporated the unless o der. ' -J21- 42. The law is settled that a judgment in d fault can be set aside if a triable issue is disclosed. It is the pra tice in dealing with bona fide interlocutory applications for cour s to allow triable issues to come to trial despite the default of t e parties. But before the court can set aside a default judgmen , the defendant must not only show an arguable defence on th merits but also give an explanation of the default. The Supre e Court said this in the case of Water Wells Limited vs Wilson Samuel Jackson 12 when it held as follows: "Indeed the Court of Appeal in ngland has held to similar effect in Ladup v Siu (2), when they said that, although it is usual on an appli ation to set aside a default judgment, not only to sh w a defence on the merits but also to give an explan tion of the default, it is the defence on the merits which is the more important point to consider." 43. We further wish to emphasize that for this favourable treatment, of allowing triable issues to come to rial despite the default of the parties, to be afforded to an apj !icant, there must be no unreasonable d elay, no mala fides an no improper conduct of the action on the part of the applican . This principle is found in the case of Stanley Mwambazi vs Morel ter Farms Limited13 , where the court held that: I .. -J22- "At this stage it is the practice if dealing with bona fide interlocutory applications 1or courts to allow triable issues to come to trial des, ite the default of the parties... Where a party is in defai lt he may be ordered to pay costs, but it is not in the interests of justice to deny him the right to have his case heard. I would emphasize that for this favourci,ble treatment to be afforded to the applicant I there must be no I unreasonable delay, no mala (ides and no improper conduct o the action on the art J the a licant." On the facts of this case, the appellants did not show an i 44. arguable defence on the merits and failed i to give an explanation for the default. There wab also unreasonable delay of two years and ten months. Clearr , there were no grounds I on which the court below could have set aside the default judgment. Therefore, the appellants should not have made an application to set aside the default j 1 dgment but should have instead appealed against it. We find l o merit in ground two . It accordingly fails. 45. The overriding consideration 1n this appeal is that the court I I below should not have entered judgtnent in default in the first place, for the reasons we have allu~ed to under grounds one and three. We set aside its decision land order that this matter -J23- be remitted to the High Court for re trial. We however award costs to the appellants to be taxed in I efault of agreement. C . K. MAKUNG COURT OF APPEAL JU I GE F. M . CHISHIMBA COURT OF APPEAL JUDGE ~ P. C. M . NGULUBE COURT OF APPEAL JUDGE