James Chisenda Likwabala (Administrator) v Zambia Airways Corporation Ltd (In Liquidation) (Appeal 145 of 2000) [2001] ZMSC 88 (29 November 2001)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 145/2000 BETWEEN: JAMES CHISENDA LIKWABILA (Suing as Administrator of deceased Estates) Appellant and ZAMBIA AIRWAYS CORPORATION LTD. (In liquidation) Respondent Coram: Sakaia. Chirwa. Chibesakunda. JJS 11dl September and 29th November.2001 For the Appellant: Mr. D. K. Kasote of Levy Mwanawasa & Company For the Respondent: Mr. M. Dudhia of Musa Dudhia & Co. JUDGMENT Sakaia. JS, delivered the judgment of the court. Cases referred to: 1. 2. Bernard Leigh Gadsden and Vincent Joseph Chiia and Development BankofZambia SCZ Appeal No. 15 of 1992.* (1) 2 Snack Attack Limited and Mobil Oil Zambia Limited Appeal No. 1 ? Of 1992.121 This appeal is against two judgments of the High Court dated - March and I5Jh May, 2000. The judgment of 2nd March. 2000 was essentially a default judgment against the Appellant. Die Appellant or his counsel did not appear on the date of trial but the court proceeded to hear the Respondent’s counter claim. In the counter claim, the court considered the evidence and the pleadings, as well as the submissions on behalf of the Respondent. The court found as a fact that there was a contract of sale between the Appellant and the Defendant. The court also found that the deceased, one Steven Likwabila, died before he could complete the purchase and that the spouse did not utilize an extension of 7 days within which to complete the sale. The court concluded that the contract of sale was not completed because of failure to pay the full purchase price. The court observed that it was incumbent upon the Administrator to take control of the situation and to contact the Respondent to complete the sale. The court noted that the deceased died before the first installment was due and that the failure to pay the purchase price was in breach of the contract, which was properly rescinded. The court held that the Respondent was entitled to the property, as it was never sold to the Appellant. Judgment was accordingly entered in favour of the Respondent in the counter claim. The Appellant was ordered to deliver vacant possession of the property in question to the Respondent. The Appellant was also ordered to pay mesne profits to the respondent from the time of rescission of the contract, namely the 12th of July, 1997 up to the date of the judgment and to make good to the property as a result of their occupation. The court directed that in the event the parties failed to agree on the amounts, there should be an assessment before the Deputy Registrar. Costs were ordered to the Respondent. On behalf of the Appellant, Mr. Kasote filed written heads of argument based on two grounds of appeal, namely, that the learned trial Judge ought to have granted an application Vor rehearing of the case which was founded on good grounds and that the learned trial Judge erred and misdirected herself by not considering the submissions advanced on behalf of the Appellant on the specific issues that the evidence of the Respondent, through DW1, was largely hearsay, erroneous and should not have been acted upon; that the Notice of Hearing was not served on the Appellant’s counsel which caused the Appellant and his counsel not to attend court on 26lh January, 2000; and that the court should have adjourned the trial because there was no proof or service of Notice of Hearing and that although the learned trial Judge referred to the pleadings of the Appellant, the Appellant did not give evidence during the trial. In arguing these grounds, Mr. Kasote indicated that he was to argue them together as they were the same. The gist of the arguments and submissions on these grounds is that the Appellant did not appear because the Notice of Hearing was not served on them and that they only became aware when judgment was served on them. Thus, immediately they applied for the matter to be reheard. It was contended, on behalf of the Appellant, that he should have been heard for the court to arrive at a fair judgment. It was further argued that the witness who testified on behalf of the Respondent gave hearsay evidence. The written heads of argument centered on the judgment of 15th May, 2000 in which the learned trial Judge refused to rehear the matter and refused to set aside the judgment of 2nd March. 2000. The submissions were that the Appellant showed sufficient cause for non-appearance at the - J4 - trial, as they were not aware that the trial would be heard on 26th January, 2000 on the ground that they did not receive the Notice of Hearing. It was argued that the fact that the Notice of Hearing was issued did not mean that it was received by the Appellant’s advocates. It was also argued in the written heads of argument that had the learned trial Judge considered the pleadings as stated in the judgment of 15th May, 2000, she should also have considered the issues raised in the Statement of Claim. It was submitted that the Learned trial Judge’s findings were based only on the evidence of DW1, which evidence was mostly hearsay. In response to the submissions, Mr. Dudhia, on behalf of the Respondent also filed written heads of argument. In his oral submissions, he pointed out that from the Notice of Appeal, it would appear that the order appealed against is the one of refusal to set aside the judgment of 2nd March, 2000. Mr. Dudhia pointed out that from the record, there is no appeal against the judgment of 2nd March, 2000. He contended that the decision to set aside a judgment is in the discretion of the trial Judge and since the trial Judge was exercising her discretion, this court could only interfere with the exercise of that discretion if based on wrong principles of law. He invited the court to hold that it should not interfere with the findings of the trial court, as it did not apply wrong principles of law. Mr. Dudhia pointed to the affidavit in support of the application to set aside the judgment of 2nd March, 2000, which only explains why the advocate did not attend court. He submitted that the affidavit does not explain why the judgment would be any different if the case was to be reheard. Mr. Dudhia further submitted that the trial court observed that the Appellant failed to show any defence on merit in the counter claim. He submitted that on the - J5 - decided authorities of this court, when a notice to complete is given and no completion takes place, the vendor is entitled to rescind the contract and resell the property. He also submitted that the trial Judge was on firm ground based on the authorities of this court to find that there was no need tor a rehearing and that there was no basis for a retrial. In support of his arguments and submissions, Mr. Dudhia referred the court to Halsburvs Laws of England Vol. 37, 4lh Edition, paragraph 656, on the question of the power of an appellate court to interfere with the exercise of the discretion of a trial court. He also referred the court to the case of Gadsden vs Chila and Development Bank of Zambia! SC Appeal No. 15 of 1992, where we set out circumstances when a contract of sale can be rescinded. He also referred us to the case of Snack Attack Limited vs Mobil Oil Zambia Limited!^ appeal No. 11 of 1996, in which this court refused to send a case to the High Court for re-hearing even though the decision made by the trial court was without hearing either side. We have considered the two judgments by the trial court. We have also considered the submissions by both learned Counsel. At the outset, we wish to indicate that we agree with Mr. Dudhia that the Notice of Appeal, as well as the Memorandum of Appeal seem to attack the judgment of 15th May, 2000 only. Equally, a consideration of the arguments and submissions in support of the appeal seem to be directed only to the learned trial Judge’s refusal to re-hear the case and to set aside the judgment of 15th May, 2000. The learned trial Judge’s Ruling of 15th May, 2000 is very short. In the Ruling the learned trial Judge explained that according to the file, the Marshal issued a Notice of Hearing of the case on 10th December, 1999 stating that the matter was coming up for - J6 - hearing on 26th January, 2000. When the court sat on that day, very late for that matter, Mr. Dudhia informed the court that he had met Mr. Mwanawasa and discussed the case. The court pointed out that it refused to adjourn because the Notice of Hearing had been issued and served in the normal way and therefore, proceeded to hear the case. The court further pointed out in that Ruling that in its judgment of 2nd March, 2000, it took into account the pleadings and rendered the judgment. The court noted that for a case to be re-heard, the Appellant had to show a plausible defence to persuade the court. On that basis, the court refused the application. On the facts as presented, we agree with the submissions by Mr. Dudhia that a High Court Judge has a discretionary power to set aside or not to set aside a judgment. Above all, before a judgment is set aside, the aggrieved party must show a defence on merit. The Judge found no defence on merit. We have examined the record. We are satisfied that the trial Judge was on firm ground in rejecting to set aside the judgment. Equally, there was no defence to the counter-claim. We are, therefore, unable to say that on the facts on record, the learned trial Judge did not exercise her discretion properly. This appeal cannot, therefore, succeed. It is dismissed with costs to be taxed in the default of agreement. - J7 - E. L. SAKALA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE