Isaiah Griffith Chindumba and Anor v Agness Bwalya Vander Volt (2021/HP/0929) [2022] ZMHC 92 (30 March 2022)

Rl IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY - - - - - HOLDEN AT LUSAKA ~~ ~ (Civil Jurisdiction) ,.r. ~ -~!•CJ~C!b 2021/HP/0929 BETWEEN: ~ · · Box soo67 , \..us~ ISAIAH GRIFFITH CHINDUMBA 1st PLAINTIFF CHILESHE KALONDE KANKASA CH IND UMBA 2 nd PLAINTIFF AND AGNESS BWALYA VANDER VOLT DEFENDANT Before Honorable Mrs. Justice M. Mapani-Kawimbe in Chambers on the 30th day of March 2022. For the Plaintiffs Mrs. S. N. Wamulume, M esdames Ndemanga Mwalula & Associates For the Defendant Mr. T. Chikonde, Messrs Ferd Jere & Company RULING Casesreferred to: 1. Fanny Muliango& Samson Muliango v Namdou Magasa & Maruja Transport & Farming Company Limited (1988 - 1989) Z. R 209 2. Patel & Another v Monile Holdings Company Limited SCZ Appeal No. 6 of 3 . Alpine Bulk Transport Co. Inv v Saudi Eagle Shipping Co. Inc, The Saudi Eagle {1986/ 2 Lloyds Rep 221 CA 4. Simiii Investment Limited v M. M Integrated Steel Milly Limited, Court of Appeal Judgment No. 21 of2016 5. N.-LJampala Safaris Zambia Limited and Others v Zambia Wildlife Authorit.1-1and Others (2004) ZR 49 (SC) 6. Stanley Mwambazi v Morester Farms Limited (19 97) ZR 108 l w, ' R2 7. Winchester Cigarette Machinery Limited v Payne (no. 2) (1993) The Times December 15 Legislation referred to: 1. High Court Rules, Chapter 27 2. Rules of the Supreme Court 1999 Edition 1) By simultaneous applications dated 17th February 2022, the defendant firstly , seeks an order to set aside the judgment in default entered by the court on 22 nd September 2021, pursuant to Order 20 Rule3 and Order 35 Rule 5 of th e High Court Rules. In the second a p plication, the defendant seeks an order of stay of committal proceedings and further stay of execution of the default judgment pending her application to set aside default pursuant to Order 3 Rule 2 of the High Court Rules . The applications were supported by affidavits and skeleton arguments that were filed into court on the same day as the summons. Defendant's case 2) It was deposed in the affidavit supporting the first application that the defendant was unable to timely file her defence r . l l ' R3 because her previous advocates seemed to be extremely busy. As a result, she failed to give them instructions on the case and was unable to timely file her defence. Be that as it were, on 22 nd September 2021, the plaintiffs obtained a default judgment against her, a copy of which, she exhibited as "ABVVl". 3) The defendant averred that she eventually engaged n ew advocates and had a defence on the merits. A copy of the intended defence was exhibited as "ABVV2" of her affidavit. She thereafter, urged the court to set aside the default judgment, because she would suffer injustice, if the casewas be disposed of on technicality. 4) In the second application , the defendant reprised that she had been unable to file her defence. She had applied to court for an order to set aside the default judgment. However, the application was not heard because her new advocates did not file a notice of appointment. After regularising their representation, the advocates renewed her application to set aside the judgment. In concluding, the defendant urged the R4 court to stay execu tion of the default judgment and committal proceedings, which h ad been instituted by the plaintiffs. Skeleton arguments 5) On behalf of the defendant, learned counsel Mr. T. Chikonde in the first application begun by citing Order 20 Rule 3 of the High Court Rules, which provides: Any judgment by default, whether under this order or under any of these Rules, may be set aside by the court or a judge, upon such terms as to costs or otherwise as the court or judge may think fit. 6 ) He then a dverted to Order 35 Rule 5 of the High Court Rules, which reads: Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be set aside by the court upon such terms as may seem fit. 7 ) Counsel went on to submit that the court had discretionary power to set aside a default judgment, provided that a defendant h ad shown a defence on t h e merits. He averred that it was in the interest of justice for the case to proceed to trialbecause the d efend ant h ad raised triable issues. 8) Mr. Chikonde drew the court's attention to the case of Fanny Muliango & Samson Muliango v Namdou Magasa & Maruja • l ' RS Transport & Farming Company Liniited1, where t h e Su preme Cou rt determined: That where there is a defence to an action, it was preferable that a c ase should go for trial rather than it being pre vente d from doing so by procedural irregularities. 9) He further called in aid the case of Patel & Another v Monile Holdings Company Limited2 where t h e Supreme Court held: We appreciate that, accordingly to the note to Order 13/9/5 of the Supreme Court Practice (The White Book 1988) even i f a defendant tells a lie about his reasons for delay, a default judgment should be set aside if a triable issue is disclosed. 10) Counsel then submitted that the defendant's intended d efence disclosed triable issues and p r ayed to court to set a side th e d efault judgmen t and for cost s to be in the cau se. 11 ) In the second a pplica tion, Mr. Chikonde, referred the court to Order III Rule 2 of the High Court Rules , which states: Subject to any particular rules, the court or a judge may, in all causes and matters, make any interlocutory order which it or he considers necessary for doing justice, whether such order has been expressly asked by the person entitled to the benefit of the order or not. 12 ) He went on to submit that the court had jurisdiction to make any inter locutory order , which was in the interest of justice. Mr. Chikonde con tended that justice would be served on the • R6 defendant if the court granted the order to stay committal proceedings and any further execution of the default judgment dated 22nd September 2021. According to counsel, if the order was not granted, the defendant would suffer injustice. For this assertion, Mr. Chikonde relied on the case of Nyampala Safaris Zambia Limited and Others v Zambia Wildlife Authority and Others3 where the Supreme Court stated: A stay of execution is granted on good and convincing reasons. The rationale of this position is clear, which is that a successful litigant should not be deprived of the litigation as a matter of course. The application must therefore clearly demonstrate the basis of which a stay should be granted. 13) In concluding, counsel prayed to court for the orders that were placed before it. I am grateful to counsel for his submissions. Plaintiff's case 14) In response, the plaintiffs filed opposing affidavits and skeleton arguments into court on 28th February 2022. They deposed that the defendant misapprehended the facts of their case and according toparagraph 4 of her affidavit, she wrongly alleged that they were seeking an order to r estrain the defendant from accessing the suit property . However, what I I ' R7 they sought was an injunction against the defendant who had denied them access to the suit property. 15) The plaintiffs asserted that since the defendant did not understand their claim, she would not be able to defend it on the merits. In any case, her application was riddled with untruth in paragraph 5 of her affidavit regarding her inability to file a defence. Moreover, the claim that her former advocates were busy was inexcusable becauseshe could have engaged other advocates. 16) The plaintiffs averred that two law firms, which the defendant previously engaged were served originating process, including the application for an interim injunction. The firms both failed to file a defence after they had been sufficiently served according to the exhibits marked "IGC2" and "IGC3", copies of letters of service addressed to Mesdames Grace and Partners and Messrs KBF and Partners. Hence, the defendant was unjustified to claim that she was unable to defend herself when 5 months had passed from the filingof the plaintiff's suit. ! • ' • RS 17) The plaintiffs further averred that the defendant's defence contained bare denials, and no material upon which, the default judgment could be set aside. What the defendant was attempting to do through her applications was to deny them their fruit of judgment. As such, she would not suffer any injustice for ignoring the law at her own peril. 18) In the second application, the plaintiffs restated their contention on the misapprehension of facts by the defendant and lack of a credible defence. They asserted that the defendant's application for stay of execution had no basis because the interlocutory judgment was not about to be executed but depended on damages to be assessed. They stated that, the defendant had not come to court with clean hands and was therefore, not entitled to any relief. In both applications, the plaintiffs urged the court to dismiss the defendant's application. Skeleton arguments 19) In the rebutting arguments on the first application, learned counsel for the plaintiff, Mrs. Wamulume argued that the writ R9 of summons, statement of claim and other attendant documents were served on the defendant's then advocates, Mesdames Grace and Partners. They acknowledged service on 17th August 2021, but were replaced on 26 th August 2021 by Messrs KBF and Partners. A notice of change of advocates was filed and the plaintiffs served the new firm originating process. In the circumstances, counsel averred that, the defendant had sufficient notice of the plaintiffs' suit. 20) Mrs. Wamulume further averred that the defendant's advocate's challenges were inconsequential to the suit and went on to argue that the plaintiffs were entitled to relief under Order 12 Rule 6 and 7of the High Court Rules. Therein, the law providedvarious instances in which, a default judgment could be entered and was not restricted to liquidated claims as follows: (6) In case no appearance shall be entered in an action for the recovery of land within the time limited by the writ of appearance, or if an appearance be entered but the defence be limited to part only, the plaintiff shall be at liberty to enter a judgment that the person whose title is asserted in the writ shall recover possession of the land, or of the part thereof to which the defence does not apply. (7) Where the plaintiff has endorsed a claim for mesne profits, arrears of rent, double value, or damages for breach of J • RlO contract or wrong or injury to the premises claimed, upon a writ for the recovery of land, he may enter judgment as in the last preceding sub-rule mentioned for the land, and may proceed as the other preceding sub-rules mentioned as to such other claim so endorsed. in 2 1) Counsel went on to state th at the plaintiff's claim was for possession of land, mesn e p rofits, damages for breach of contract again st t h e defendant. Hence, the d efault judgment was prop erly entered under Order 12 Rule 6 and 7 an d notunder Rule 8 of th e High Court Ru les as contended by th e defen dant. Mrs. Wamulume a dmitted that while t h e court had d iscretion to set aside a default judgment , it could only do so where a defendant h ad s h owna meritoriou s d efence. For th e p roposition of th e law, counsel cited the case of Alpine Bulk Transport Co. Inv v Saudi Eagle Shipping Co. Inc, The Saudi Eagle4 , wh ere the Court of Appeal defined a "m eritoriou s defence" as follows: The Evans case clearly contemplated that a defendant who is asking the court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success. It must be more than merely arguable ....... a defendant who is asking the court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success .. . .. in our opinion, therefore, to arrive at a reasoned assessment of the justice of the case, the court must form a provisional view of the probable outcome if the judgment were to be set aside and the defence developed. The arguable defence must carry some degree of conviction. J ' Rll 22) She t h en cited th e case of Simiji Investment Limited v M. M Integrated Steel Milly Limited5 , wh ere the Court of Appeal on default judgmentsheld t h at: We wish to state that the most important consideration when setting aside a default judgment is a defence on the merits issues and not so much t he and disclosure of triable explanation for failing to file a defence. 23) Counsel thereafter, invited the court to preview the defendant's intended defence exhibited as "ABVV2" in her affidavit. As far as she was concerned, the defendant did not dispute that the p laintiffs were entitled to vacant possession of the suit land, after they paid t h e initial deposit of ZMW2, 100,000. Further that, she acknowledged receipt of the paymen t however, in unexplained circumstances decided to breach the parties contract. As a result, the plaintiffs were denied access to their land for over a year and being commercial farmers , furth er deprived of t h eir ability to generate income during that period. Thus, they were entitled to damages for the financial loss. ' t ' R12 24) Mrs. Wamulume at paragraph 4 of the intended defence, contended that the defendant in the contract agreed to create an easement on Lot nos. 6 and 7 Njolwe . Thus, she was not entitled to backtrack on the obligation, which she voluntarily executed. In counsel's view, the intended defence was hopeless, lacked any sense of conviction and had no prospects of success. Hence, setting aside the default judgment would be a waste of the court's time and would only cause the plain tiff's further prejudice. 25) In the second application, Mrs. Wamulume submitted that the defendant's application for a stay of execution was irregular because there is no immin ent threat. The default judgment was subject to assessment and since there was nothing exceptional in the defendant's circumstances, the stay was not necessary. 26) In fortifying the p laintiffs' position, counsel referred the court to the case of Winchester Cigarette Machinery Limit ed v Payne6 where it was held that before a court grants a stay of execution, it has to be satisfied that there was good reason to ) . ' . R13 deny a judgment creditor the fruits of his judgment. According to counsel, the defendant's affidavit did not state any exceptional circumstance except that the defendant had a defence on the merits. Hence, allowing the matter to proceed to trial would be a sheer waste of time . 27) In concluding, counsel argued on the stay of the committal proceedings that the application was irregularly before court. What the defendant ought to have done was to file an affidavit in opposition and not seek a stay. She thereafter prayed to court to dismiss the defendant's application with costs. I am grateful to counsel for her submissions. Hearing 28) I h eard both applications on 2 n d March 2022. Counsel for the defendant relied on the affidavit in support and skeleton arguments filed herein. He briefly submitted that the defendant had a d efence on the merits and was entitled to be h eard at a full trial. Counsel reiter a ted the defendant's prayer before court to set aside the default judgment and to stay its execution. . . , . R14 29) In response, counsel for the plaintiff informed the court that she should rely on the opposing affidavits and skeleton arguments on record. She augmented on the first application that the intended defence contained numerous admissions. The d efendant did not deny that the plaintiffs were entitled to vacant possession of the suit land and had received consideration. Further, the parties contractually agreed that the defendant would create an easement. 30) Counsel averred that since the defendant failed to honour her contractual obligations, and considering that the plaintiffs were entitled to a default judgment; her application to set aside had been rendered redundant. In the second application, counsel rehashed her earlier arguments that the application to stay committal proceedings was irregular adding that the root of those proceedings was in the interim order of injunction and not the default judgment. In concluding, Mrs. Wamulume prayed to court to dismiss the defendant's applications with costs. • • • RlS Analysis and decision 31) I have considered the application, affidavits, the skeleton arguments filed herein and the authorities cited therein, as well as the submissions of counsel. What is asked of the court in the first application, is whether it should set aside the default judgment entered in favour of the plaintiff on 22nd September 2021? 32) Suffice to state from the outset, that courts are guided by Article 118(2) of the Republican Constitution in administering justice. The focu s b eing on substantive ju stice rather than procedural technicalities, and t h e just, efficient as well as expeditious disposal of cases. Moving on , Order 20 of t h e High Court Rules addresses the issues and consequ ences of non-appearance, default of defence and failure to serve by a party. Order12 of the High Court Rules further empowers a court to enter interlocutory judgment where a defendant has failed to enter appearance and file a defence . Un der Order 20 ( 3) of the High Court Rules a court can set aside or vary a • • R16 judgment that has b een entered under Order 12 of the High Court Rules. 33) In the case of Stanley Mwambazi v Morester Farms Limited7 , the Supreme Court in illuminating the cou rt's power on setting aside d efault judgments stated: (a) It is the practice in dealing with bona fide interlocutory applications for courts to allow triable issues to come to trial despite the default of the parties; where a party is in default 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. (b) We stated in Water Wells Limited v Wilson Samuel Jackson (1984) Z. R. 98 (S. C.), for this favourable treatment to be afforded there must be no unreasonable delay, no mala fides, and no improper conduct of the action on the part of the applicant. Indeed the Court of Appeal in England has held to similar effect in Ladup v Siu, when they said that, although it is usual on an application to set aside a default judgment, not only to show a defence on the merits but also to give an explanation of the default, it is the defence on the merits which is the more important point to consider. We agree with them that, it is wrong to regard the explanation for the default, instead of the arguable defence as the primary consideration. If the plaintiff would not be prejudiced by allowing the defendant to defend the claim then the action should be allowed to go on trial. 34) Accordingly, while courts have discretionary power to set aside ex parte judgments, the main focus should be to ensure that justice always prevails. Courts are r equired when d ealing with applications to set aside default judgments to consider the m erits of an intended defence and the explanation for default. • • R17 The rationale is that since an ex parte judgement is not a judgement on the merits; it is always in the interests of justice that a d efaulting party with sound reasons should be heard by a court. 35) In the instant case, the defendant h as called upon the court to set aside the default judgment that was entered against her on 22nd September 2021. In this pursuit, the defendant averred that she h ad a meritorious defence, which deserved to go to full trial. In addition, her delay in filing a defence was not inordina te but rather caused by h er old advocates who appeared to be too busy . 36) The plaintiffs challenged the defendant, arguing that her failure to file a d efen ce was deliberate. She had sufficient knowled ge of their suit and changed advocates twice. In addition, she had no defence on the m erits to their claims and urged the court to dismiss the case. 37) As earlier stated above, a court in d ealing with an application to set aside a d efault judgment is bound by two considerations. The first is whether the defendant has a .. ... "' R18 defence on the merits?, which for the sake of clarity does not entail that the defence must succeed. Rather the defence should be one that raises triable issues, which may have a real prospect of success. The second consideration is about the explanation given for failure to defend an action. The explanation by the ernng party must be excusable for the default judgment to be set aside. 38) Be that as it were, a court is not powerless when it comes to setting aside default judgments and will act when the ends of justice so demand. It must however, guard against dilatory tactics, which may be adopted in the process of a suit by an erring party and ensure that the innocent party does not suffer any prejudice. I have had the benefit of reading through the draft defence, and in my opinion, find that it does not disclose any triable issues. It contains bare denials, which feebly and without conviction challenge the plaintiffs' claims; yet in the suit contract, the defendant agreed to the terms now attacked. In my opinion, this cannot be the b asis of the defendant asserting that she has raised triable issues that R19 must be heard by the court. Instead, her tactics appear dilatory with a purpose of forestalling the plaintiffs' fruits of judgment. 39) I further, find that, the defendant's explanation for failing to defend the suit is inexcusable. It was alleged by the plaintiff and not challenged by the defendant that she employed two law firms to defend her 1n this suit. They were served originating process, but still the defendant did not file a defence. I find it quite unbelievable that the law firms employed by the defendant for the sole purpose of defending her would suddenly be too busy to represent her. In my view, this afterthought flies in the defendant's face. 40) In other words, the excuse does not provide me sufficient basis, upon which, I should set aside the d efault judgment. Accordingly, I dismiss the defendant's application and find it otiose to consider the application for stay. Suffice to state that the court shall not stay committal proceedings, when the defendant has improperly moved it. 4 . .. ,.. R20 41) In concluding, costs are awarded to the plaintiffs to be taxed in default of agreement. Dated this 30th day of March 2022. /70~ M. Mapani-Kawimbe HIGH COURT JUDGE