Kennedy Mambwe v Katia Shamu and Kakusa S Mundia (APP/172/2022) [2024] ZMCA 221 (17 April 2024)

IN THE COURT OF APPEAL OF ZAMBIA APP/172/2022 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: KENNEDY MAMBWE AND KATIA SHAMU KAKUSA S. MUNDIA APPELLANT 1 ST RESPONDENT 2 ND RESPONDENT Coram : Mchenga DJP, Muzenga and Chembe , JJA On 24 th March 2024 and 17 th April 2024 For the Appellant : N . Ngonga with R. Nyirenda , Messrs. Fred Jere and Company For the Respondents: No Apperance Judgment Mchenga DJP, deiivered the judgment of the court Cases referred to : 1 . Costellow v . Somerset County Council (1983]1 ALL ER 2 . Zambia Revenue Authority v . Jayesh Shah (2001] Z . R . 3 . Trade Kings Limited v . Unilever , Cheesbrough Ponds (Zambia) Limited and Lever Brothers (Zambia Limited) , SCZ Judgment No . 2 of 2000 4 . Attorney General v . Marcus Kampumba Achiume [1983] Z . R . 1 5 . Wilson Masauso Zulu v . Avondale Housing Project Limited [1982) Z . R. 172 J2 6 . Mundia Sikatana v . The Attorney General [1982] Z. R. 7 . Universit y of Za mbia Council v . Calder [ 1998] Z . R . 8 . Clement Chuuya and Hilda Chuuya v . J . J . Hankwenda , SCZ Judgment No . 3 of 2003 9 . Micheal Mabenga v . The Post Newspapers Limited Appeal No . 069 of 2012 10 . R v . Sussex Justices , ex - parte Mcarthy [1924]1 KB 256 11 . Twampane Mining Co - operative Society Limited v . E and M Storti Mining Limited [2011] Vol 3 Z . R . 67 12 . Chandiwira Nyirenda and Others v . Deep Six Company Limited , CAZ Appeal No . 105 of 2017 13 . Milingo Lungu v . The Attorney General and Administrator General , 2022/CCZ/006 14 . Bernert v . ABSA Bank Ltd ., 2011 [3] SA 92 [CC] Legislation referred: l . The High Court Act , Chapter 27 of the Laws of Zambia 2 . The Judicial Code of Conduct Act , No . 13 of 1999 3 . The Court of Appeal Rules , Statutory Instrument No . 65 of 2016 INTRODUCTION c11 This is an appeal from an order of the High Court (Wanjelan i , J ., hereinafter referred to as the trial Judge) , dated 28 th January 2020 . J3 (21 By that order , the appellant ' s suit was dismissed for want of prosecution. BACKGROUND C3J On 9 th April 2015 , the appellant , by writ of summons, took out proceedings in the Principal Registry agai nst the 1 st and 2 nd respondents . [4J The appellant was on 17 th April 2015 , granted leave to amend the writ. Not only did he amend the writ , he also joined in new parties , two plaintiffs and five defendants . The five other defendants , included The Attorney General . [5J Some of the added defendants , contested the i r joinder . CGJ On or about 21 s t April 2015, the appellant served the amended writ on The Attorney General . [7J In a letter dated 28 th April 2015 , The Attorney General requested the appellant to serve them with statement of claim and other relevant document . Despite this request , there was no attendance on their behalf at the hearing contesting the joinder . Neither did they f i le any document contesting it . J4 cs1 On 6 th August 2015 , the j oihder of al 1 the new parties , including The Attorney General was set aside for being irregular . (91 The appellant decided to contest that decision . [101 The first application he made was for leave to appeal the decision . The application was not heard on a number of occasions primarily on account of the appellant ' s non-a t tendance . [111 On 15 th July 2016 , Bowa , J ., who had taken over the matter from Kajimanga , J ., cal l ed for a status conference . None of the parties attended and he adjourned the matter to 2 nd August 2016 . [12 1 On 2 nd August 2016 , Bowa , J ., struck out the matter because the appellant did not attend. He directed that the matter would stand dismissed if i t was not restored within 14 days . [13J The appellant applied for the matter to be restored and the hearing was scheduled for 26 th August 2016 . The application was not heard because the appellant did not attend . Only the 2 nd respondent was in attendance. JS c141 Bowa , J . ordered that the application to restore the matter was only going to be heard after costs for the 2 n d August 2016 sitting , were paid to the 2 n d respondent . c1s1 The matter wa-s referred to taxation and on 12 th June 201 7 , the taxing master rendered a bill of K16 , 405 . 00 c1G1 Between 15 th September 2017 and 30 th April 2018 , the case came up on at least four occasions but cou l d not proceed mainly because the appellant was either unavailable or not ready to proceed . c171 The case was reallocated and the trial Judge who immediat ely scheduled the case for a status conference on 16 th August 2018 . r1a1 There was no attendance by both parties on that day and the matter was struck out . The trial Judge also directed that if the matter was not restored within 7 days , it would stand dismissed . c191 At a status conference on 16 th November 2018 , the trial Judge noted that costs ordered by Bowa J ., had not been paid . The appellant indicated that it was J6 on accoun t of there being an objection to bill of costs . The case was adjourned to 28 th Januar y 20 1 9 . c201 On 28 th January 2019 , the appellant informed the court that he had applied for the review of the bill of costs and the matter was pending before taxing master . The matter adjourned to 7 th March 2019 . c21 1 On 7th March 2019 , the matter came up for a status conference . The trial Judge observed that the appellan t was not present in spite of being aware of the hearing . She also noted that the appellant did not attend most scheduled hearings . She dismissed the matter for want of prosecution . c221 The appellant applied for · the set t ing aside of that order on 9th May 2019 . c231 On 22 nd May , 2019 the appellant ' s appl i cation to set aside the order dismissing the matter for want of prosecution was granted and the matter was restored to active cause list . c24 1 The matter then came up on 16th June 2019 , 31 st July 2019 and 27 th November 2019 . No progress could be made because the appellant had not paid the costs J7 ordered by Bowa , J . on 26 th August 2016 . It was adjourned to 28 th January 2020 . . [2s1 When the matter came up on 28 t h January 2 02 0 , the trial Judge observed that the matter had not progressed from 2016 owing to the appellant ' s failure to pay the costs . She also noted that despite being ordered to pay the costs in two equal instalments , by 31 s t November and 31 st December respectively , the appellant had not complied with that order . [26J Consequently , she dismissed the matter for want of prosecution . [27J Further , on 28 th October 2020 , the tria l Judge declined to grant an application from the appellant that she reviews her decision dismissing the action for want of prosecution on 28 th January 2020 . GROUNDS OF APPEAL c2s1 Five grounds have been advanced in support of the appeal . They are couched as follows : (i) That the trial court below erred in law and fact when it dismissed the appellant's J8 application on the basis of costs and not on the merit of the case; (ii) That the trial court below erred in law and fact when i t reviewed the decisions of the other High Court Judges who had previously handled the . case when the trial court knows or ought to know that they are technically at the same level; (iii) That the trial court below erred in law and fact when i t dismissed the matter as a way to enforce its decision on costs; (iv) That the trial court erred in law and fact when i t dismissed the appellant's application for appeal citing lack of merit; and (v) That the trial court erred in law and fact when i t determined the matter where i t had acted before as advocate. APPELLANT'S ARGUMENTS IN SUPPORT · OF THE APPEAL [291 In support of t he first ground , i t was argued that the trial Judge erred when she dismissed the mat ter for a procedural default and not on the J9 merits . The cases of Castellow v. Somerset County Council 1 and Zambia Revenue Authority v . Jaye sh Shah2 , were referred to in support of the proposition . c301 Counsel also referred to the cases of Trade Kings Limited v . Unilever , Cheesbrough Ponds (Zambia) Limited and Lever Brothers (Zambia Limited) 3 , Attorney General v. Marcus Kampumba Achiume4 and Wilson Masauso Zulu v . Avondale Housing Project Limited5 and submitted that the trial Judge erred when she fail ed to consider the fact that the delayed conclusion of the case could not be solely attributed to the appellant . c311 The other parties had equally contributed to the de l ay and by solely concentrating on the appellant ' s infractions , her evaluation of the evidence before her was unbalanced . c321 In support of the second ground of appeal , it was submitted that the trial Judge was proscribed from reviewing the ruling of Kajimanga , J ., who had ruled that the matter be determined on its merits . JlO C33J Section 4 of the High Court Act and the cases of Mundia Sikatana v . The Attorney General 6 and University of Zambia Council v. Calder7 , were referred to and it was submitted that the decision was erroneous because Kajimanga , J ., and the trial Judge were of equal jurisdiction . That being the case , she could not overturn the decision of Kajimanga , J . C34J Grounds three and four were argued at the same time . It was submitted that the law provides for various processes on how claims relating to payment of money can be enforced . The essence of this argument was that dismissing a matter due to lack of payment is not one of them. c3sJ It was also argued that despite presenting evidence that they had paid the costs after 31 st December 2 019 , the lower court still proceeded to dismiss the matter . Reference was made to the cases of Clement Chuuya and Hilda Chuuya v . J . J . Hankwenda8 and Micheal Mabenga v. The Post Newspapers Limited9 , in support of the argument that the decision was erroneous . Jll C36J As regards the fifth ground of appeal , it was argued that since the trial Judge had handled the matter as Princi pal State Advocate in The Attorn ey General ' s office , she should not have presided over the case . c311 Counsel referred to Section 6 (1) and(2) of the Judicial Code of Conduct Act and the cases of Micheal Mabenga v. The Post Newspapers 9 and R v. Sussex Justices, ex-parte McCarthy1 0 and submitted that judges are di scour aged from finding themselves in situations that cause their impartiality to be questioned . ARGUMENTS IN RESPONSE TO THE APPEAL c3s1 In r esponse to the grounds of appeal , it was submitted that the trial Judge was on firm ground when she d i smissed t h e matter for want of p rosecution . C39J I t was pointed that when the matter came up on 28 th January 2020 for a status conference , counsel fo r the appellant _ notified the court that they had J12 not complied with the order to settle the costs by 31 st December 2019 . [4oJ It was also submitted that apart from that , the appellant had continuously flouted other orders of the court and the matter was recurrently struck out from the active cause list. The case of Twampane Mining Co-operative Society Limited v. E and M Storti Mining Limited1 1 was referred to and it was submitted that the trial Judge was entitled to dismissing the matter for the flouting of cou rt orders. c411 In response to the 2 nd ground of appeal it was pointed out that the appellant has not shown the manner in which the trial Judge reviewed the decisions of other judges . [42J As regards the argument that , the trial Judge should not have presided over the case because she handled the matter when she was an advocate , it was submitted that the argument was frivolous , vexatious and made in bad faith . It was also argued that the letter exhibited by the appellant cannot be interpreted to mean that she acted as a legal practitioner in this matter . J13 [43J The respondents also drew the attention of the court to the fact that by an order 6th August 2015 , The Attorney General was removed as a party from the proceedings. [44J It was their submission that all the grounds of appeal lacked merit . It was also their submission that the appeal must accordingly be dismissed . CONSIDERATION OF THE APPEAL AND DECISION OF THE COURT [4SJ [46J We will start with the first ground of appeal . As of 28 th January 2 02 0 , when the trial Judge dismissed the matter , the appellant was still attempting to appeal against an order by Kajimanga, J ., dated 6th August 2015 , striking out parties he had irregularly joined to the proceedings . That order had been handed down close to 5 years earlier . [47J While it is true that on a few occasions the respondents did not attend court, it is our view that the trial Judge cannot be faulted for wholly placing the blame on the appellant for the delayed progress in this case . C4BJ In any case , the appellant was the plaintiff and it was for him to prosecute the case . J14 C49J It is our view that the appellant ' s claim that he was denied the opportunity to have the matter determined on its merits and that the trial Judge was biased in her assessment of the causes of the delay , are baseless . c501 The background to this case , which is set out in paragraphs 3 to 27 of this judgment , clearly show that the delayed conclusion of this case , squarely rests on the appellant. He delayed the case by either not attending court and/or not paying the costs ordered in 2016 . (51] It cannot , seriously be claimed that the appellant was denied the opportunity to have his claims determined on their mer1ts . We find no merits in the first ground of appeal and we dismiss it. c521 The second ground of appeal is concerned with the alleged review of the decisions of other High Court judges by the trial Judge . C53J As correctly submitted by the respondents , the appellant has not substantiated this ground of appeal . J15 C54J In their application to strike out parties that had been irregularly joined to the proceedings , the applicants also prayed for the dismissal of the action . Kaj imanga , J . in a ruling dated S Lh August 2015 , struck out the irregularl y joined parties but declined to dismiss the action , ruling that it must be determined on its merits . C55J The order that the matter be determined on it its merits , cannot , as is being suggested by the appellant be interpreted to mean that whatever the circumstances or infractions by the appellant , the matter could not be dismissed , it had to be heard on its merits. C56J The order that the matter be heard on its merits related to the respondents ' application that the case be dismissed because the appellant had irregularly joined some parties . c511 This being the case , we similarly find no merits in the 2nd ground of appeal and we dismiss it . c5a1 The 3 rd and 4th grounds of appeal are concerned with the dismissal of the case for want of J16 prosecution on account of costs not being paid , when they had in fact been paid. cs 91 During the hearing on 28 Lh January 2 020 , which h e aring re s u l ted in the trial Judge dismissing the matter , the appe ll ant conce ded to not havi ng pa i d t h e costs in f ull . (60] According to · t he order of the c ourt , the appe ll ant was suppo sed to pay the 1sL instalment by 30 th November 2019 . The 2nd instalment was payable by 31st December 2019 . c611 The appellant paid the 1 sL in s talment after 30 th Nov ember 2019. In the c a s e of the 2 nd instalment , it was paid on 31 st J anuary 2020 . This was two days af t e r the matter had been dismissed for none payment . cG21 In the circums t ances , we f ind tha t t he 3 r d an d 4th grounds of appeal have no merits because the costs where not paid within the prescribed period . We dismiss both of them . cD J The 5th ground of appeal is anchored on the fact that since the tri a l Judge dealt with the matter as an advocate , she should n ot have presided over the case . Jl7 [6 4J It is not in dispute that prior to taking up her appointment as judge , the tria l Judge was a state advocate in the office of The Attorney General . It is also not in dispute that on 25 th April 2015 , she wrote a letter demanding certain documents for the case. [65] However , one should not end there when consider i ng the extent to which the trial Judge handled the case as a state advocate and assessing the possibility of bias . [661 On 21 st April 2015 , the appellant served an incomplete set of pleadi ngs relating to the case on The Attorney General . The trial Judge who was Princ i pal State Advocate at the time , wrote the appellant requesting for the missing pleadings . There is no evidence that the requested documents were ever served . [67J On the 6th August 2015 , the Attorney General was removed from being a party to the proceedings on the application of other parties who had been irregularly joined . The Attorney General was not represented at that hearing , neither did that office file any J18 documents in support of the application for non j oinder . c6eJ Following the reallocation of the matter to the trial Judge , she presided over a status conference on 16 t h November 2018 . The appellant appeared through counsel from that day until 28 th November 2020 . He did not on any occasion raise issue with the trial Judge being conflicted on account of having handled the matter as an advocate . [69J There is also evidence that after dismissing the case for want of prosecution on 7 th March 2019 , in circumstances that were justified, the trial Judge restored it on 9 th May 2019 . c101 The appellant only raised i ssue with the partiality of the trial Judge after she refused to review her decision after dismissing the matter for the second time. cn1 Apart from the letter the trial Judge wrote to the appellant seeking the missing pleadings , there is no evidence that can reasonably lead to a conclusion that she dealt with the matter as an J19 advocate to an extent that can reasonably raise the possibility of her being biased . c121 In our view , the test of " reasonableness" must be satisfied where a person makes an allegation of possible bias . c131 In the case of Chandiwira Nyirenda and Others v . Deep Six Company Lirnited12 , we said the following : "The test applicable in all cases of apparent bias, whether concerned with justices , members of inferior tribunals, jurors or with arbitrators, is whether, having regard to all the relevant circumstances, there is a real possibility of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard with favour , or disfavour , the case of a party to the issue under consideration by him. In considering this question, all the circumstances which have a bearing on the suggestion that the judge or justice is biased must be considered . The question is whether a fair minded and informed observer , having considered the fact , would conclude that there was a real possibility that the tribunal was biased .. " c141 Furthermore , in the case of Milingo Lungu v. The Attorney General and Administrator General 13 • the Constitutional Court stated that : "It is not enough to merely allege that there is danger of bias without producing credible J20 evidence, neither is i t enough for the person alleging to merely have suspicions or apprehensions. " c7s J At this point they made reference to the South African c as e of Bernert v . ABSA Bank Ltd1 4 in which the following sentiments were made : " The presumption of impartiality and the double requirement of reasonableness underscore the formidable nature of the burden resting upon the litigant who alleges bias or its misapprehe nsion. The idea is not to permit a disgruntled litigant to successfully complain of bias simply because the judicial officer has ruled against him or her . Nor should litigants be encouraged to believe that, by seeking the disqualification of a judicial officer, they will have their case heard by another judicial officer who is likely to decide the case in their favour. Judicial officers have a duty to sit in all cases in which they are disqualified from sitting . This flows from their duty to exercise their judicial functions . As i t has been rightly observed, judges do not choose their cases ; and litigants do not choose · their judges . An application for recusal should not prevail, unless i t is based on ·substantial grounds for contendi ng a reasonable apprehension of bias ." [ 76J All in all , we are satisfied that the fact that the trial Judge wrote a letter as an advocate does not , in the circumstances of this case , establish that she handled the case as an advocate . J21 cn1 It is no wonder that even i f the appellant was aware of that she wrote the letter , he never questioned her partiality or the appropriateness of her handling the case , not u n til could not provide any viable arguments to support his quest to have the matter restored . c101 That being the case , we are incl i ned to agree with the respondents ' submission tha t the claim of bias is frivolous , vexatious and has been raised in bad faith . c191 We find no merit in the fi ft h ground of appeal and we dismiss it . VERDICT c0O1 Having dismissed al l the five grounds of appeal , this appeal fails . .. cs1 1 We dismiss the appeal with costs , the costs are to be tax ed in default of agreement . C . F. R . Mchenga DEPUTY JUDGE PRESIDENT ,.,.__......,_ . .,_,_, .. ·--·· ......................... . K. Muzenga ......................... ·~ ........... . Y. Chembe COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE