Giraffe Bus Services Ltd v Mwandemwa (Appeal 43 of 1990) [1991] ZMSC 52 (31 January 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 43/90 HOLDEN AT LUSAKA ' . (Civil Jurisdiction) GIRAFFE BUS SERVICES LIMITED Appellant V ABEL LWITIKO MWANDEMWA Respondent CORAM: Ngulube, D. C. J., Gardner, and Chai la, JJ. S., 31st January, 1991 Dr. J. H. Mulwilaof Messrs. Ituna Partners advocate for the appellant Mr. H. H. Ndhlovu of H. H. Ndhlovu and Co. for the respondent JUDGMENT Gardner, AJ. S., delivered the Judgment of the court. This is an appeal against a Judgment of the High. Court granting a declaration to the respondent that he is entitled to the occupancy of -^d Mupapa Road, Lusaka and against refusal by the learned trial Judge to review that order. ........ ................. The facts of the case are that the respondent was employed by the appellant and he occupied the premises referred to as a tenant of the council. He left the employment of the appellant towards the end of 1985 and thereafter continued to occupy the premises. The appellant maintained that the respondent only occupied the premises by virtue of his employment with the appellant but the respondent maintained that by virtue of a letter dated the 5th of November, 1985 written by the appellant to the Lusaka Urban District Council the appellant acknowledged that the respondent had worked for their company and that he now wished the house to be transferred to his name. In the letter the appellant specifically stated that it would have no further Claim to the said house. As a result of this letter the tenancy of the house was transferred into the name . of the respondent. In the pleadings the appellant in its defence alleged that the letter dated the 5th of November, 1985 was a forgery and that the respondent was not entitled to have the house allocated to him in his own name. : /J2...: ' • ' A When the matter came for trial there were numerous adjournments, and in particular on the 4th of March, 1988, after the respondent had closed its case on 5th of February, 1988, counsel for the appellant applied for an adjournment on the ground that one of his witnesses, Mr. Befuma, the alleged signatory to the letter dated 5th November, 1985, had gone to Zimbabwe, and that the other witness, who was a police officer, was not in Lusaka and could not be summoned at short notice. The case was therefore adjourned until the 27th of April, 1988 but at the resumed hearing neither the witnesses for the appellant nor counsel for the appellant attended before the learned trial judge. As a result, under the provisions of Order 35 Rule 3 of the High Court Rules, the learned trial judge wrote a judgment in which he considered the evidence already produced on behalf of the respondent and made a declaration in favour of the respondent in the absence of any defence or argument from the appellant,. Eleven days later counsel on behalf of the appellant applied for a review of the learned trial judge's judgment on the grounds that on the date of the adjourned hearing his witness from the appellant company had been taken into hospital with malaria and gastro-enteritis and that although a subpoena duces tecum had been served on the police witness that witness could not attend because he was out of the country at that time. With regard to his own absence the appellant's counsel said that time appolnted"'for his attendance before the High Court he was awaiting the delivery of a judgment in the Industrial Relations Court which was scheduled for 08.30 hours, which judgment was delayed owing to the lack of a quorum until approximately 09.00 hours, that is, the time when he should have been in the High Court. . - • • ■ < ■ . ■ The learned trial judge in his judgment refusing to review ’ his earlier judgment accepted that the witness from the appellant's Company was prevented from attending by virtue of the fact that he was at the hospital at the time, but he isS that he was not satisfied that the reasons advanced as supporting the application to review were sufficient and compelling. He commented that he was Inclined to believe that counsel was aware of his witness's indisposition before the date of hearing and should have communicated to the court earlier and that he was not impressed with the explanation that counsel was delayed at the Industrial Relations Court because it was incumbent upon the counsel to communicate his problem to a colleague or to the court by telephone or other means. The learned trial judge went on to say that matters before the High Court took ' .f precedence over lower courts and counsel should at least have made an application for a short adjournment to enable him to attend before the Industrial Relations Court. Finally the learned trial judge had this to say, "For him to sinply stay mtil the 12th of May, 1908 when he filed sunnons for review sinply confirms my inpressicn that he had no interest in prosecuting his client's defence. As to whether the defendant has a good cause of action this has not been indicated in the affidavit. In the result I an not satisfied that there are good and anpelling reasons necessitating the review of ny judgnent". Dr. Mulwila on behalf of the appellant has argued that the learned trial judge should have been prepared to review his own judgment because he was satisfied that a vital witness was genuinely unable to attend to give evidence on the days fixed for the adjourned hearing. He argued that the application for review had been made within the time fixed for making such applications, that is to say, within fourteen days of the judgment complained about. He indicated that the evidence to be called was that of the alleged signatory to the allegedly forged letter, that the crux of the case was entitlement to possession of the house and the witness was essential to resolve this question. Despite this, counsel argued , the learned trial judge in his judgment delivered in the absence of the appellant or his advocate said that there was no evidence of forgery. In the circumstances Dr. Mulwila argued that justice could not be dome unless the vital evidence was heard. Mr. Ndhlovu, on bdhalf of the respondent, at first argued that, because the Lusaka Urbany District Council, which had been named as the second appellant in the original matter, had not attended the trial at all and had not put in a defence there was no-support for the appellant 's defence that the transfer was wrong , and the Council's decision to allow judgment to be signed in default would have the result that even if the judge heard all the evidence on behalf of the appellant he would have been bound to make the declaration. When it was indicated to Mr. Ndhlovu that it was necessary for the declaration to be made against the appellant specifically and not merely against the second defendant he withdrew that argument, and argued that the learned trial judge was right in saying that there was no sufficient cause for a review of his judgment, and that, in any event, some witness from the appellant company could have been called to give evidence by virtue of the fact that a company is made up of many individuals. Mr. Ndhlovu conceded however that the learned trial judge was not entitled to say that the appellant was not serious. From the history of what occurred in this case we are satisfied that, at the date of the judgment delivered in the absence of any defence representative, the vital witness who could support the allegation of forgery, which it was intended to put forward on behalf of the defence, was unable to attend because as the learned ? trial judge accepted he was in hospital. We have no doubt that had the appellant's counsel appeared before the learned trial judge to ask for an adjournment in those circumstances it would have been granted, because the absence of such an important witness made it Impossible for the defence to continue. In our view it was'tfie duty of the counsel for the appellant to ask a colleague (maybe from another firm) to stand in for him either at the Industrial Relations Court or before the High Court, with an indication that he would be late or to ask for an adjournment in view of the absence of the witnesses. The learned trial judge had every reason to be annoyed under the circumstances. However, it Is clear that the case was ultimately decided without hearing any evidence relating to the very Important defence which was intended to be put forward. The learned trial judge was wrong to say that it appeared that counsel had no interest in prosecuting his client's defence; especially in view of the fact that there was a clear application before him to set aside his judgment. Furthermore the learned trial judge's comment that the appellant had not shown a good cause of action was incorrect because in fact the defence filed in the pleadings indicated that there was a very good defence alleging forgery. .<■ , . In our view the proper course for the learned trial judge to ■ r ■ ' ........ have taken was under Order 35, Rule 5, which is to the effect that where judgment has been delivered in the absence of any party, a court may, for good cause, set aside that judgment. For the reasons which we have given this appeal will be allowed and the case will be sent back for a full hearing before another judge of the High Court, Costs of this appeal to'the appellant. He will not interfere with the orders for costs in the other proceedings. M. M. 5. & NGULUBE DEPUTY CHIEF JUSTICE . /J5...