Kombatende Sikombe v Tanfreight Africa Limited (Appeal No. 229/2023) [2024] ZMCA 53 (15 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No . 229/2023 r -- ~ - : : - . , /-7cc ~~: •'f ~ / \ ~ / ( ('. \ , 5 M :i ~,_'i \ ~ 1--;_, :- -' . - J / -·- ---i BETWEEN: KOMBATENDE SIKOMBE '-....~-=-~.!APPELLANT ~''-_jl__ AND TANFREIGHT AFRICA LIMITED RESPONDENT CORAM : Siavwapa JP, Chishimba, and Banda Bobo JJA On 23rd April, 2024 and 16th May 2024 For the Appellant : Mr. H. M. Mulunda of Messrs. Hibanjene For the Respondents: Mr. C . Nkhala of Messrs. Paul Nora Advocates. Mu lunda Associates JUDGMENT CHISHIMBA JA, delivered the judgment of the Court. CASES REF ERRED TO: 1) Zambia Telecommunications Company Limited v Aaron Mweene Mulwanda & Paul Ngandwe (2012) 1 ZR 404 2) Water Wells Limited v Wilson Jackson (1984) ZR 98 3) Costellow v Somerset County Council (1993) 1 All ER 952 4) James Milling Company Limited v IMEX International (Pty) Limited (2002) ZR 79 5) Akashambatwa Mbikusita Lewanika & Others v Frederick Chiluba (1998) ZR 79 6) G4S Secure Solutions Zambia Limited vs Lupupa Kabezya Lewi's Appeal No 170 of 2015 7) Elizabeth Catherine Cooke vs Moses Mpundu Appeal 207 /20 15 8) Dipak Kumar Patel & Yakub Patel vs David SCZ No . 33/2017 9) James Milling Company and Robert Lawrence Roy 10) Hu Herong and Luo Teng v John K9:. ~ 'fe @PG_~ c;1.lwe Food Products ._?f ~~0 :a : .:"'• ~ - I \ \ -~ , l , 1\)1.t ) L- ·c:.... . ~ ,l.)o-.:--- \ v./ ' ..;C;: St,,-~ . L ---~ { J.2 2017 ZR33 11) Hellen Evelyne Mwambazi v Chisha Wedson Mwambazi 1986 ZR 182 LEGISLATION CITED: 1) The High Court (Amendment) Rules, Statutory Instrument No. 72 of 2) The High Court Rules Chapter 27 of the Laws of Zambia 1.0 INTRODUCTION 1.1 This appeal arises from two rulings of the Lusaka High Court - Commercial Division by Mrs. Justice K. E. Mwenda-Zimba. The first is dated 13th January, 2023 in which she declined to grant the appellant an adjournment and pr oceeded to dismiss the matter for want of prosecution. 1.2 The second ruling is dated 20 th February, 2023 in which the Learned Judge refused to review her earlier ruling dismissing the matter for want of prosecution. 2 .0 BACKGROUND 2 .1 The appellant commenced an action in the Commercial Division on 11 th September, 2014 by writ of summons and statement of claim. The record shows that on 30th October, 2014, the matter came before the Hon. Mr. Justice Justin Chashi, as he then was, for hearing of an order for misjoinder by the respondent. As learned Counsel for the appellant had J.3 just been retained, the matter was adjourned to 21 st November, 2014 to enable counsel respond to the application. 2.2 On 21 st November, 2014, both counsel were present. They agreed that a consent order would be filed. The matter was then adjourned to 20th January, 2015. The record shows that the matter only came up on 26th March, 2015 and neither counsel was present. The court then struck out the application for mis-joinder with liberty to restore within 14 days and adjourned the application to set aside default judgment to 17t h April, 2015. 2.3 The record shows, that the matter came up on 12th April, 2015, with both counsel present. The court adjourned the matte r to 20 th May, 2015, for a scheduling conference. On 23rd May, 2 015, only counsel for the appellant was present. The court issued orders for direction and the matter was adjourned to 5 th August, 2015 for a status conference. On that date, both counsel for the appellant and respondent informed the court that they had not fully complied with the orders for direction and asked for more time within which to comply . Counsel for the respondent further informed the court that the parties were exploring an ex-curia settlement. J.4 On that basis, the learned Judge referred the parties to mediation. 2.4 Three years later, on 28th August, 2018, the matter came up before Judge Sunday Nkonde for trial. However, counsel for the respondent informed the court that they were not ready for trial and that they wished to object to some documents. The learned Judge then issued orders for direction and adjourned the matter to 2 nd October, 2018, for a status conference. 2.5 The matter only came up on 17th October, 2018, with learned counsel for the parties informing the court that efforts were underway to resolve the matter ex-curia and that they be referred to mediation for that purpose. The court then referred the parties to mediation. 2.6 The record shows that on 1s t September, 2022, when the matter should have come for a status conference, neither party was present. The court observed that from the mediation report of 27 th July, 2019, all that remained was for the parties to agree on the amount of compensation to be paid to the appellant. On the basis of the absence of both parties, the learned Judge struck out the matter from the active cause J.5 list with liberty to restore within 14 days failing which it would stand dismissed. 2.7 The matter was restored and came up for a status conference on 28 t h September, 2022. Only counsel for the appellant was present who informed the court that the parties were supposed to have further mediation. The learned Judge then ordered that mediation be concluded in the next 21 days and adjourned the matter to 21 st October, 2022. 2.8 Four years later, the matter was re - allocated to Mrs. Justice Mwenda - Zimba. At a scheduled status conference on 21 st October, 2022, Counsel for the appellant was present and informed the court that mediation had not taken off because the parties had not been given a date. The court adjourned the matter to 21 st October, 2022 for setting of trial dates in the event mediation failed. 2.9 On 31 st October, 2022, both counsel were not present. The court noted that there was no report from the mediation office. The Marshal reported that the record was still with the mediator. On that basis, the court adjourned the matter to 7 th November, 2022 for setting of trial dates, if mediation failed. J.6 2.10 On that date, once again, none of the parties attended court and the matter was adjourned to 23r d November, 2022 to give chance to mediation and for setting of new trial dates. On 23rd November, 2022, counsel for both parties were present and informed court that they would each call one witness at trial. The matter was then adjourned to 13th January, 2023 for trial. The Learned Judge further stated that in accordance with the High Court (Amendment) Rules, Statutory Instrument No. 72 of 2018 , there would be no further adjournments. 3.0 APPLICATION FOR ADJOURNMENT 3.1 When the matter came up for trial on 13th January, 2023, Ms. Chalwe , learned counsel for the appellant, informed the court that they had applied for an adjournment on the basis that the appellant was out of jurisdiction. The affidavit in support of notice of motion to adjourn, deposed to by the appellant dated 16th December, 2022, stated that he was unable to attend court on that day as he would be out of jurisdiction for medical attention and would only return on 16th January, 2023. J .7 3.2 Mr. Nkhata, learned counsel for the respondent objected to the application arguing that there was no evidence that the appellant was out of jurisdiction. That the reason advanced was not compelling. He prayed that the matter be dismissed for lack of seriousness. 4.0 DECISION OF THE COURT BELOW 4.1 In her ruling, Judge Mwenda-Zimba noted that when the matter was allocated to her on 15th August, 2022, it had already been in backlog, having been commenced in 2014. She reviewed the progress the matter had made from the time it was allocated to her to the application for adjournment. The court stated that no evidence had been exhibited in the appellant's affidavit to show that he was away or unavailable. 4.2 She noted that Order 53 rule 9 of the HCR prohibits adjournments except 1n compelling and exceptional circumstances. That there was no such evidence of compelling and exceptional circumstances in this case. She further observed that the background of the matter shows how much judicial time has been allocated to the case and not utilized with the appellant, as mover of the court, failing to appear. J.8 4.3 The court was of the view that the appellant was not desirous of prosecuting the matter and dismissed it for want of prosecution. As the matter had not been heard on its merits, the appellant was at liberty to commence a fresh action. As regards costs, the court awarded them to them appellant because the mediation report showed that mediation failed on account of non-attendance by the respondent. 5.0 APPLICATION FOR REVIEW 5.1 On 27 t h January, 2023, the appellant issued summons for review and to set aside order dismissing the matter. In his affidavit in support, he stated that on 16t h December, 2022, he sought adjournment of the matter on the grounds that he would be out of jurisdiction on the date set for trial for medical reasons. He exhibited the medical reports and discharge slip marked "KS 1" and "KS 2" where he had been hospitalised in November 2022, and a copy of his medical appointment in the United Kingdom marked "KS 3". 5.2 He stated that he was unable to exhibit proof of his inability to attend trial and the necessary documentation as they were neither ready nor in his custody at the time of making the application for adjournment. Having arrived back in Zambia J.9 on 15th January, 2023, h e exhibited the plane ticket and boarding pass marked "KS 4" and "KS 5" respectively, and medical test result conducted in Manchester, United Kingdom marked "KS 6". 5.3 At the hearing of th e application, Mr. Nkhata opposed the application arguing that the medical report, "KS l" dated 30th November, 2022, the appointment, "KS 3" and the ticket, "KS 4" both dated 1 st December, 2022, were available at the time the application to adjourn was made on 16 th December, 2022. That exhibit "KS 6 " dated 18th January, 2023, were done after th e decision sought to be reviewed. 6 .0 DECISION OF THE COURT BELOW 6.1 In her ruling of 20 th February, 2023, the learned J u dge considered the guidance of the Supreme Court in Zambia Telecommunications Company Limited (Zamtel) v Aaron Mweene Mulwanda & Paul Ngandwe 111 on th e circumstances when review is available . She noted that on 13th January, 2023, when she heard the application to adjourn, no evidence was presented to her to satisfy the grant of an adjournment. 6.2 Th e court below furth er noted that exhibit "KS l", "KS 2" and "KS 4 " were all dated prior to the date to adjourn and J.10 are documents which were with the appellant but he failed to produce them when he sought an adjournment. The court dismissed the application to review and to set aside the order dismissing the matter. 7.0 GROUNDS OF APPEAL 7 .1 Being dissatisfied with th e ruling of the court below, the appellant appealed advancing three grounds of appeal as follows: 1) The Learned trial Judge erred in law and in fact when she dismissed the cause hereof for want of prosecution despite the plaintiffs Counsel being present instead of striking it out of the active cause list with liberty to restore; 2) The Learned trial Judge misdirected herself in law and in fact when she dismissed the appellant's application to review her ruling with costs despite there being ample evidence that the plaintiff was out of jurisdiction to seek medical attention hence the request for an adjournment through the plaintiffs Counsel who was present and in attendance; and 3) The Learned trial Judge misdirected herself in law and in fact when she dismissed the matter hereof for want of prosecution with liberty to commence a fresh action despite the record showing that the plaintiff had consistently availed himself for mediation and despite it being evident that the matter had been in court since 2014. 8.0 APPELLANT'S HEADS OF ARGUMENTS J.11 8.1 The appellant filed heads of argument on 19 th July, 2023, in which grounds one and three were argued together. The gist of the appellant's submissions are that a s opposed to dismissing the action for want of prosecution, the court below ought to have struck it out of the active list with liberty to restore, and ou ght to have b een alive to the fact that the appellant consistently attended mediation whenever required. 8.2 The appellant contends that the circumstances he found himself in, were beyond his control on account of his aiilling health at the time. That it was important for him to attend to his health at the earliest possible time and h ence the filing of t h e notice of motion to adjourn on tim e. He argued that the court should have consider ed th e reasons advanced by counsel for the appellant for his failure to appear before court on the set date. 8.3 The court was referred to Order 33 rule 1 of the HCR which states that: The Court may postpone the hearing of any civil cause or matter, on being satisfied that the postponement is likely to have the effect of better ensuring the hearing and determination of the questions between the parties on the merits, and is not made for the purpose of mere delay. The J.12 pos tponement may be made on such t erms as to the Court seem just. 8.4 It was argued that it was in the interest of justice that the matter be adjourned as the appellant was outside the country seeking medical attention, and was not merely intended to delay prosecution of the matter or waste judicial time. Citing Order 35 rule 1 and 2 of the HCR, it was submitted that the court could only strike out the matter from the cause list in the absence of the plaintiff, and not to dismiss it for want of prosecution with liberty to commence a fresh action. 8.5 The case of Water Wells Limited v Wilson Jackson 121 was called in aid for the principle that matters should be dealt with on their merits and th at triable issues should go to trial. We were urged not to deny the appellant adjudication on his claim on the merits on account of procedural defaults, unless the default cau ses prejudice to the respondent for wh ich an award of costs cannot compensate. As authority the case of Costellow v Somerset County Council 131 was referred to. 8.6 In ground two, the appellant submits that there was ample evidence that he was out of jurisdiction for medical attention to justify the application for an adj ournment. He submitted that at the time the application for an adjournment was = J.13 made, some of the vital documen ts were not within th e possession of t h e appellant which p rompted the app ellant to produce them on review wh en th ey were available. 8.7 In support of th is, the a ppellant placed reliance on Order 39 rule 1 of the HCR, and th e cases of James Milling Company Limited v IMEX International (Pty) Limited 141 and Akashambatwa Mbikusita Lewanika & Others v Frederick Chiluba 151. 8.8 We were urged to uph old all the grou nds of appeal and overturn th e ruling of th e cou rt below dismissing the matter for want of prosecution as th e appellant is d esirous of prosecuting th e action and have it determin ed on its m erits. 9 .0 ARGUMENTS BY THE RESPONDENT 9. 1 The r espon dent filed h eads of argument on record , arguing grounds one and three together . The respondent refer red to the history of the m a tter since 2 0 14. That when the date was set on 23r d November, 2022 , in th e presence of the p arties, th e court emphasised th at n o adj ou rnment would be entert ained, h en ce the dismissal for want of prosecution. The case of G4S Secure Solutions Zambia Limited vs Lupupa J.14 Kabezya Lewi's 161 was cited on proceedings being court driven as part of proper case management. 9.2 As regards the refusal to grant adjournment, the said decision was entirely in the discretion of the court which we should be reluctant to interfere with. That interest of justice requires that justice should be administered timely and in a cost effective manner. The respondent cited the cases of Elizabeth Catherine Cooke vs Moses Mpundu and Dipak Kumar Patel & Yakub Patel vs David Kangwa Nkole 171 . The cases dealt with dismissal for want of prosecution for inordinate delay, etc. The respondent contends that there was inordinate delay in prosecuting the matter, coupled with non appearance by the appellant on several occasions. 9.3 In response to ground two, refusal to review the order of dismissal, the respondent cited the cases of James Milling Company and the Robert Lawrence Roy (Supra) as well as Order 39 rule 1 of the High Court Rules on review. That for review to be available, there must be fresh evidence that has been discovered after judgment, which was in existence but could not with reasonable diligence have been discovered. In a nutshell, the evidence subject of review was available at J.15 the time of application for adjournment. Therefore, the appeal should be dismissed for lack of merit. 10.0 ANALYSIS AND DECISION OF THE COURT 10.1 We have considered the appeal and the arguments advanced by Learned Counsel as well as the authorities cited. The record shows that the matter commenced in 2014 and was allocated to two other judges before it finally settled with Judge Mwenda-Zimba. A considerable amount of judicial time was spent on it by each of the judges who referred it to mediation with no clear results or settlement of the matter. 10.2 On 5 th August, 2015, Judge Chashi referred the parties to mediation following an application by the parties. Nothing tangible came out of this as the record is silent. Three years later on 28th August, 2018, the matter came before Judge Sunday Nkonde. On 17t h October, 2018, the learned counsel for the parties informed the court that efforts were underway to resolve the matter ex-curia, th e court in turn referred th e matter to mediation. 10.3 Four years later, the matter was re-allocated to Mrs. Justice Mwenda-Zimba and who called for a status conference on 21 st October, 2022. She equally referred the matter to mediation, J.16 still no progress was made until she set it down for trial with the concurrence of counsel. Soon after a trial date of 13th January, 2023, was set, the appellant's advocates applied for an adjournment on the basis of the appellant being out of jurisdiction on medical attention. 10.4 In ground one and three, the appellant contends that the matter should not have been dismissed for want of prosecution, but ought to have been struck out of the active cause list with liberty to restore, counsel for the appellant having been present before court. 10 .5 In this case, the appellant was absent but his advocate was before court and sought an adjour nment. The affidavit in support of the notice of motion to adjourn at page 31 of the record of appeal did not exhibit any documents in support thereof. It is not in issue that there was no evidence to confirm that the appellant had traveled out of jurisdiction for medical reasons. Therefore, the court cannot be faulted for being dissatisfied with the reasons advanced in the affidavit and refusing to grant an adjournment. 10.6 The issue for determination is whether the court below was in order to dismiss the matter for want of prosecution. Order i . - J.17 35 rule 2 of the HCR provides for striking out of a matter and is couched in the following terms: If the plaintiff does not appear, the Court shall, unless it sees good reason to the contrary, strike out the cause (except as to any counter-claim by the defendant), and make such order as to costs, in favour of any defendant appearing, as seems just: 10.7 A reading of the provision shows that it only provides for the striking out of a matter when the plaintiff is absent, and not dismissing it outright. Dismissal of an action is only provided for under Order 19 rules 7 and 8 of the High Court (Amendment) Rules, 2020 where the parties fail to attend a scheduling conference or status conference on two occasions without justifiable cause or where sixty days after filing of an action, there is no progress. None of these circumstances arose in this matter. 10.8 It is not in issue that modern litigation is court driven, meant to avert waste of judicial time and resources. And that the rules of court are devised in public interest to promote expeditious dispatch of litigation. Further, that the court does have power to dismiss a matter for want of prosecution under certain circumstances. There are a number of factors to be considered in dismissing a matter for want of , .. J.18 prosecution such as, inordinate delay in prosecution of matter, whether due to passage of time, a fair trial is no longer possible and whether the defendant will be prejudiced. 10.9 In the case of the Hu Herong and Luo Teng v John Kapotwe and Kalwe Food Products 191 the Supreme Court stated that "Although courts have the inherent jurisdiction to dismiss matters for want of prosecution, this should be only done in exceptional circumstances. Dismissal in our view should be exercised sparingly and in deserving cases so that matters are determined on the overriding principle of merit." 10.10 The question is whether there was inordinate delay in prosecuting the matter by the appellant. We had earlier referred to the history of the matter from 2014 to date of dismissal. The matter having been previously handled by three judges. Further, much of the delay was on account of all judges having referred the matter to mediation back and fourth until finally a trial date was set of 13th January, 2023. We do not agree that the appellant solely contributed to the delay in prosecution of this matter or that it consistently was absent at all scheduled status conferences or hearings. In J.19 fact, the lower court equally remitted th e matter to mediation prior to setting it down for trial. The matter came up for trial for th e first time, when it was dismissed for want of prosecution on account of none attendance of the appellant, whose Counsel was present. 10.11 Order 3 Rule 2 of the High Court Rules Chapter 27 of laws of Zambia provides as follow; "If the plaintiff does not appear, the court shall unless it sees good reason to the contrary, strike out the cause (ex cept as to any counter claim by the defendant), and make such order as to costs, in favour of any defendant appearing as seems just." 11.0 In the case of Hellen Evelyne Mwambazi v Chisha Wedson Mwambazi 1 10 1 it stated that "Before a matter is dismissed, it is a legal requirement that it be struck out from the active cause list and that t he plaintiff be given liberty to have the matter restored." 12.0 The Supreme Court guided that where a plaintiff fails to appear on the date set for hearing, the proper course, under Order 35 rule 2 of the HCR, is to strike out the cause from the list and that it is not proper to dismiss the action. :.. 13.0 Therefore, we find that the court below misdirected itself in J.20 law when it dismissed the matter for want of prosecution with liberty to commence a fresh action. The court when presented with the application to adjourn, upon refusing to adjourn ought to have taken the appropriate course to strike out of the active cause list the matter and not to dismiss it. We hold the view that in the circumstances of this case, inordinate delay in prosecuting the matter was on account of the numerous references to mediation by each of the three judges that had conduct of the matter. Further, the matter came up for the first time for trial, when it was dismissed for want of prosecution instead of being struck out. We hold that the lower court erred by dismissing instead of striking out the matter with liberty to restore. 14.0 Grounds one and three having succeeded it is otiose or academic to proceed to determine ground three on refusal to review the order of dismissal. 15.0 CONCLUSION 15. 1 Having upheld the appeal in grounds one and three, we set a side the decision of the court below dismissing the matter f" • • J.21 for want of prosecution. We substitute it with an order that the matter stands struck out from the active cause list with liberty to restore within 14 days of date hereof, failing which, it stands dismissed for wan t of prosecution. Upon restoration the matter shall be heard before a different judge of the High Court. The parties shall bear their own costs . . . . . . . .. . . . .. . . . . . . . i ................... . M. J. Siavwapa JUDGE PRESIDENT F. M. Chish imba ......... ~ ......... . A. M Banda Bobo COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE