Knight Frank Ltd v Namnets Marketing Ltd and Anor (Appeal 5 of 2012) [2017] ZMSC 269 (29 May 2017)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 05/2012 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: KNIGHT FRANK LIMITED APPELLANT AND NAMNETS MARKETING LIMITED VALFLAX PROPERTIES LIMITED 1st RESPONDENT 2nd RESPONDENT Coram: Mwanamwambwa, Muyovwe and Kaoma, JJS On the 22nd July, 2015 and 29th May, 2017 For the Appellant: Mr. K. Mwondela, Messrs Lloyd Jones & Collins For the 1st Respondent: Mr. H. H. Ndhlovu, standing in for Mr. N. Banda of Messrs Nixon Banda & Company For the 2nd Respondent: No Appearance JUDGMENT MUYOVWE, JS, delivered the Judgment of the Court. Cases referred to: 1. Leopold Walford vs. Unifreight (1985) Z. R. 203 2. Premesh Bhai Megan Patel vs. Rephidim Institute (SCZ Judgment No.3 of 2011) 3. D. E. Nkhuwa vs. Lusaka Tyre Services Limited (1977) Z. R. 43 4. Twampane Mining Co-operative Society Limited vs. E and M Storti Mining Limited (SCZ Judgment No. 20 of 2011) JI In this appeal, the appellant is challenging the Ruling delivered on the 8th November, 2011 by the High Court at Lusaka in which the learned judge declined to set aside the judgment in default of appearance. In the High Court, the 1st respondent was the plaintiff while the appellant and the 2nd respondent were the 1st and 2nd defendants respectively. We will, however, continue to refer to the parties by their designations in this appeal. The brief facts are that on the 5th October, 2009 the 1st respondent issued a writ of summons which was served on the Counsel for both the appellant and the 2nd respondent on 6th October, 2009. On 19th October, 2009 Counsel caused to be filed a conditional memorandum of appearance on ground of misjoinder of the 2nd respondent. Counsel filed summons and affidavit in support of the application. The 1st respondent opposed the application and on 11th December, 2009, the learned Deputy Registrar dismissed the application for misjoinder. While the 2nd respondent had entered a conditional appearance, the record shows that the appellant neither filed a defence nor a conditional appearance. And after the ruling of the J2 learned Deputy Registrar, the 2nd respondent did not file its defence and on the 18th March, 2010 judgment in default of appearance was entered against the appellant and the 2nd respondent. On the 31st March, 2010 the appellant filed an application to set aside the default judgment. In the affidavit in support of the application, the Director of the appellant company deposed that a conditional appearance had been filed on 11th November, 2009 and an application to strike out the writ for irregularity was filed on 13th November, 2009 but that the court did not issue a date of hearing. In his ruling dated 13th July, 2010 the learned Deputy Registrar considered the appellant’s argument that on the 11th November, 2009 before the default judgment was entered it had applied to set aside the writ for irregularity. Counsel’s argument was that since there was a pending application to strike out the writ for irregularity, it was irregular for the 1st respondent to apply to obtain a judgment in default of appearance and defence. The learned Deputy Registrar ruled that the appellant defaulted by not filing the defence within 14 days. According to the learned Deputy Registrar the argument by Counsel for the appellant that they were waiting for a date of hearing was misplaced both at law and in fact. J3 The learned Deputy Registrar addressed his mind to the reason behind the application to strike out the writ for irregularity which was that the writ did not indicate the address for the 1st respondent. The learned Deputy Registrar after considering the Rules concluded that had the application to set aside the writ for irregularity been heard it would not have succeeded. The learned Deputy Registrar found no plausible reason to set aside the default judgment and dismissed the application with costs. Unhappy with the learned Deputy Registrar’s decision, the appellant appealed to the Judge in Chambers and upon hearing the appeal, the learned judge dismissed it. In the appeal before us, the appellant complains in the first ground of appeal against the refusal by the learned judge to set aside the default judgment as the appellant had a defence on the merits which it had exhibited. Secondly, that the learned judge erred in finding that at the time the default judgment was entered against the appellant, there was no pending application on record to strike out the writ for irregularity. 1 . J4 Mr. Mwondela filed heads of argument which he relied upon on behalf of the appellant. The gist of the argument in ground one is that the appellant did not file a defence because it had a pending application to strike out the writ for irregularity which was filed on 11th November, 2009. It was submitted that the record shows that the appellant had an intended defence and a counterclaim which had been exhibited. Counsel contended that in the face of the intended defence and counterclaim by the appellant, the trial court fell in grave error when she refused to set aside the default judgment. Counsel relied on Order 12 Rule 2 of the High Court Rules, Cap 27 of the Laws of Zambia. He also relied, inter alia, on the case of Leopold Walford vs. Unifreight1 which laid down the principle that breach of a regulatory rule is curable depending on the nature of the breach and the stage of the proceedings. Further, we were reminded of our holding in the case of Premesh Bhai Megan Patel vs. Rephidim Institute Limited2 where we stated that: "We wish to restate that in dealing with an application to set aside a default judgment, the question is whether a defence on the merits has been raised or not and whether the applicant has given a reasonable explanation of his failure to file a defence within a J5 stipulated time and that it is the disclosure of the merits which is a more important point to consider." According to Counsel, the appellant did not fail to file a defence as it had by the 11th November, 2009 filed an application challenging the regularity of the 1st respondent’s process. It was Counsel’s prayer that the default judgment be set aside and the case be heard on its merits. In ground two, the gist of the submission is that the appellant filed an application to strike out the writ for irregularity before the default judgment was entered. It was contended that before a hearing date for the application could be given, the learned Deputy Registrar entered a judgment in default of appearance. It was submitted, therefore, that the learned judge erred when she failed to first address herself to the prior existing application to strike out the writ for irregularity before deciding to decline to set aside the judgment in default of appearance and deciding that the appellant had no defence. Counsel prayed that the appeal be allowed and the matter be sent back to the court below for the appellant to file its defence and counterclaim in order for the matter to be heard on its merit. J6 The respondents did not file their submissions. We have considered the events as they appear on record, the ruling by the learned Deputy Registrar, and that of the learned judge in the court below and the submissions by Counsel for the appellant. We will deal with the two grounds together as they are interrelated. The issue before us is whether the judgment in default of appearance should have been set aside by the learned judge. It is not in dispute that process was filed on the 5th October, 2009 by the 1st respondent and on the 6th October, 2009 process was served on the appellant and the 2nd respondent. The record shows that the 2nd respondent filed a conditional appearance on the 19th October, 2009. The appellant claims they filed a conditional appearance on 11th November, 2009. However, the record does not have the said conditional appearance and it was not exhibited by the appellant in any of the applications filed into court. As it is, the only time the appellant took action on the matter is when they took out summons to strike out the writ for irregularity which was filed on 13th J7 November, 2009. It is our view that this application should have been precipitated by a timely filed conditional memorandum of appearance. We note, however, that while process was filed on 5th October, 2009 and served on the appellant the following day, the appellant only filed summons to strike out the writ for irregularity on 13th November, 2009. We, therefore, agree with Counsel for the appellant that the learned judge erred when she found that at the time the default judgment was entered, there was no application on record filed by the appellant. It is not in dispute that while the appellant filed process challenging the writ for irregularity on 13th November, 2009, the record shows that the default judgment was entered on 18th March, 2010. While we agree that the learned Deputy Registrar ought to have heard the application by the appellant, having perused the application with the supporting affidavit, we take the view that had the learned Deputy Registrar heard the application by the appellant challenging the writ, the application would not have succeeded. First of all, the appellant had not filed a conditional appearance and J8 the application to set aside the writ for irregularity was filed much later after the prescribed period for filing a defence had long expired. In the case of D. E. Nkhuwa vs. Lusaka Tyre Services Limited3 we said at Page 46 that: “This court has had occasion in the past to comment adversely on the attitude of legal practitioners to comply with other rules of procedure but it is time that all legal practitioners were made to understand that where the rules prescribe times within which steps must be taken these rules must be adhered to strictly and those practitioners who ignore them will do so at their own peril. The provisions in the rules allowing for extensions of time are there to ensure that if circumstances prevail which made it impossible or even extremely difficult for parties to take procedural steps within prescribed times relief will be given where the court is satisfied that circumstances demand it. It must be emphasized that before this court is able to exercise this discretion to grant such relief there must be material before it on which it can act.” Further, in the case of Twampane Mining Co-operative Society Limited vs. E and M Storti Mining Limited4 we said: “..... we cannot over-emphasize the importance of adhering to Rules of Court as this is intended to ensure that matters are heard in an orderly and expeditious manner. Allowing this appeal would be tantamount to us encouraging laxity and non-observance of rules by practitioners and litigants in general.” In the Twampane case4 the period of delay was 39 days and this was considered an unreasonable delay although this was not the only consideration. In this case, the delay was for 38 days J9 coupled with the lack of any explanation as to why the appellant could not file its defence. The learned judge cannot be faulted for declining to set aside the default judgment. Clearly, the appellant sat on its rights and the appellant can only blame itself for the situation in which it finds itself. In conclusion, it is our finding that at the time the judgment in default of appearance was entered, both the appellant and the 2nd respondent had not filed an appearance and the learned judge cannot be faulted for having rejected an application to set aside the default judgment. We find no merit in this appeal and we dismiss it with costs to the 1st respondent, to be taxed in default of agreement. M. S. MWANAMWAMBWA DEPUTY CHIEF JUSTICE E. N. C. MUYOVWE SUPREME COURT JUDGE R. M. C. KAOMA SUPREME COURT JUDGE J10