Paluku v Granny's Bakery Ltd and Ors (Appeal 29 of 2006) [2008] ZMSC 136 (24 June 2008)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA APPEAL No. 29/2006 (CIVIL JURISDICTION) BETWEEN: KALYOTO MUHALYO PALUKU (MALE) APPELLANT AND GRANNY’S BAKERY LIMITED ISHAQ MUSA ATTORNEY-GENERAL LUSAKA CITY COUNCIL 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT 4th RESPONDENT CORAM: MAMBILIMA, DCJ, SILOMBA, JS, KABALATA, A/JS On 21st and 24th June, 2008 For the Appellant: For the 1st & 2nd Respondent: Mr. M. Kalolo of Lukona Chambers For the 3rd & 4th Respondent: No Appearance Mrs. I. M. KUNDA of George Kunda and Co. MAMBILIMA, DCJ delivered the Ruling of the Court. RULING The Appellant has applied to this Court to restore his application which was earlier withdrawn by his then Counsel, Mr. Paul Pandala BANDA. In the said application the Appellant had applied to this court under Rule 78 of the Supreme Court of Zambia Act for the correction of a judgment which was delivered by this Court on 22nd November, 2006. At the hearing of that application, his Counsel, Mr. BANDA withdrew the Notice of Motion when he was put to task by the Court on the contents of an affidavit which he had filed in support of the Motion. The Appellant has now taken out another Motion seeking to restore the withdrawn Motion on the ground that he never instructed his Counsel to withdraw it. In the affidavit in support of this Motion, the Appellant has deposed inter alia, that at the time when the withdrawn Motion came up for hearing, he was out of the country on business and he never gave his advocate instructions to withdraw the application. He deposed further that there were clerical errors, accidental slips and omissions regarding the judgment of the Court delivered on 22nd November, 2006. He is of the view that had the Court considered the said accidental slips and omissions, it would not have come to the conclusion it arrived at. Mrs. KUNDA has submitted, in support of the current motion that since the Court did not hear the motion on merit, the matter can now be restored so that the Court can pronounce upon the merits of the application. In her submission in court, Mrs. KUNDA urged the Court to take into account the fact that the matter has a high chance of succeeding at the hearing. She echoed the position of her client that he never gave instructions that the motion be withdrawn. She has referred us to the case of SETREX STEEL AND WOOD PROCESSING LIMITED WITH TWO OTHERS VS ZAMBIA NATIONAL COMMERCIAL BANK PLC (APPEAL NO. 39 OF 2007) to support her contention that only a decision on merits, arrived at after hearing both parties, would bar a recommencement of the action. It is her position that in this case, there was no decision of the Court on the merit. The Motion was withdrawn. The first and second Respondents oppose the motion. The second Respondent has filed an affidavit in opposition in which he deposed in the main, that the application was freely and voluntarily withdrawn by the Appellant’s advocate and cannot therefore be brought back before the Court. According to the second Respondent, the Appellant is bound by what his Counsel did in Court and his application should therefore be dismissed. Mr. KATOLO, in his submission to the Court, stated that the Appellant’s application is anchored on the fact that he did not give instructions to his Counsel to withdraw the application. He referred us to Rule 36 (a) of the Legal Practitioners Rules, 2002 which confer full responsibility on an advocate, with regard to the conduct and presentation of the client’s case in the Court. He submitted that the withdrawal of the Motion by Messrs. Paul Pandala BANDA was in keeping with the full authority granted to them by law and was also in keeping with the fore most duty to the Court. For this submission, he referred us to the case of LUSAKA WEST DEVELOPMENT COMPANY LTD AND ZSIC VS TURNKEY PROPERTIES LIMITED (1990-92) ZR 1 in which it was held that "rn the absence of fraud or mistake, when Counsel to an agreement has ostensible authority to enter into an agreement, the party will be bound by the agreement and the Court is not concerned with any internal arrangement which limits the authority... ” According to Mr. KATOLO, if the Appellant is not satisfied with what his Counsel did, his remedy does not lie in applying to restore the matter but recourse must be had to the lawyer. He submitted that an application once withdrawn, stands dismissed. He also pointed out that the application before the Court does not refer to any rule in the Supreme Court Act and according to him, this means that the Court has not jurisdiction to restore a dismissed appeal. Mr. KATOLO further submitted that in the event that the Court was of the view that it had jurisdiction, then there must be sufficient material presented to Court on which the Court will base the exercise of its discretion and one of the factors to be considered was whether the application had any prospect of success. According to him, this application has no prospect of success in view of the fact that the Appellant is seeking to reopen the appeal. He prays that this Motion should be refused with costs because it is unmeritorious. In reply Mrs. KUNDA referred us to Order 32/6/8 and Order 20/11/7 of the White Book (1999 Edition) and submitted that this Court has jurisdiction to hear the Motion. To emphasize the point that the Appellant never instructed Counsel to withdraw the Motion, she referred us to the letter of Mr. Paul Pandala, BANDA to the Appellant explaining the withdrawal of the application. The relevant paragraph is paragraph 2 in which Mr. Paul Pandala BANDA stated: “Upon introduction to the court made by the Solicitor-General, Sunday Nkonde, the Court asked me whether I had advised you to make such an affidavit, the Court specifically referred to paragraph 12 of the affidavit in support of Notice of Motion under Rule 78 the ‘slip rule’ of the Supreme Court which I agreed, the judges went on to read the contents of the affidavit and asked me whether as an officer of the court the language in the affidavit was commensurate with court language, at this point, I felt jittery and realized that the only alternative to avoid citation for contempt of court was to withdraw the applications fearing further or continued quizzing by the Lordships. Even having withdrawn the applications, I was quizzed further until I apologized and informed the court that I had realized the mistakes I had made hence withdrawing the applications.” It is clear from this paragraph that the decision to withdraw the appeal was taken in Court after Counsel was quizzed on the contents of the affidavit which he had filed. The lawyer confirms that upon being quizzed he “felt jittery and realized that the only alternative to avoid citation for contempt of court was to withdraw the application fearing further or continued quizzing by the Lordships. ’ The Appellant has stated in his affidavit that at the time the Motion was heard, he was out of the country. This lends credence to the position of the Appellant that he never gave instructions to his Counsel to withdraw the application. Mr. KATOLO has referred us to Rule 36(a) of the Legal Practitioners’ Rules which confers responsibility on a Counsel for the conduct and presentation of his clients’ case in Court. But it is paramount that when conducting a case on behalf of a client, Counsel does so on the instructions of the client. If the instructions are not given then Counsel is acting without authority. In this case, it is clear that Counsel did not have prior authority of his Client to withdraw the case but only did so on his own when he was quizzed on the contents of an affidavit and according to his own statement, he wanted to avoid being cited for contempt. In this respect, the authority cited of LUSAKA WEST DEVELOPMENT COMPANY AND CHITI VS TURNKEY PROPERTIES LIMITED cannot apply to the facts of this case. Whenever a matter has not been determined on merit, a Court has discretion, for sufficient reasons, to reopen the matter. The Motion in this case was not heard as it was withdrawn and therefore was not determined on merit. It is our considered view that the Appellant can apply to restore it. As observed above, the withdrawal of the case was done by Counsel at the spur of the moment, without any instructions from the client. That, in our view, is sufficient reason to restore the matter. We allow the Motion and restore it to the active list. Costs shall be in the cause. I. C. Mambilima DEPUTY CHIEF JUSTICE S. S. Silomba SUPREME COURT JUDGE -A / SUPREME COURT JUDGE 7