Luke Muchindu Kavoota v Mazzonites Ltd (Appeal 163 of 2001) [2001] ZMSC 87 (27 March 2001)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 163 OF 2001 n HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: LUKE MUCHINDU KAVOOTA APPELLANT AND MAZZONITES LIMITED RESPONDENT CORAM: NGULUBE, CJ, CHAILA AND CHIBESAKUNDA, JJS. On 16!h January and on 27th March, 2001. For the appellant - S. S. Zulu, Zulu and Company For the respondent - K. M. Shepande, Shepande and Company JUDGMENT Ngulube, CJ, delivered the judgment of the Court. On 16th January, 2001, we allowed the appeal; set aside the judgment entered after a one - sided trial conducted in default of attendance by the appellant; we ordered a retrial before another Judge of the High Court. Costs of the appeal were awarded to the successful appellant. As promised on that occasion, we now give our reasons. In the action, the respondent was the plaintiff and the appellant the defendant. The plaintiff obtained a judgment that if the defendant did not repay certain monies owed under a Ioan agreement, the plaintiff would have possession of the mortgaged house situated in Chilenje South. The property had previously since been sold to one Benny Makondo who was given a certificate of Title and who applied to be joined in the action. It is not clear from the record whether he was infact so joined. Meanwhile, trial of the action between the plaintiff and the defendant was fixed for 28 February, 2000, when the defendant did not appear. It was adjourned to 7th March, 2000, when again the defendant did not attend. As allowed by the rules of Court, trial proceeded in the absence of the defendant. The defendant applied to set aside the judgment given in those circumstances, pointing out that he had not been served with notice of hearing. The learned trial Judge declined to set aside his judgment and to reopen the hearing, stating that having already delivered a judgment he was debarred from doing so. The learned trial Judge was infact not so debarred. Order 35 Rules 3 and 5 of the high Court Rules is very clear and provides:- 3. ‘Tf the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the Court may, upon proof of service of notice of trial, proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant. 5. Any judgment obtained against any part in the*’absence of such party may, on sufficient cause shown, be set aside by the Court, upon such terms as may seem fit” The key issue in this case was whether or not the defendant who was at the time acting in person had been served with notice of hearing. Quite obviously, it is a condition precedent to proceeding ex parte that the absentee has been served with notice and so is aware of the trial date and has simply defaulted in attending. Where there is no such proof of service - as in this case - the default trial and its judgment is liable to be set aside. Mr. Zulu was on very firm ground in his ground of appeal to this effect and Mr. Shepande quite properly conceded that there was no such proof of service on record. Quite apart from Order 35, there was also the aspect of the third party, Makondo, whose interest cannot simply be ignored. He too needs to be heard. It was for the foregoing reasons that we allowed this appeal. M. M. S. W. Ngdlube, CHIEF JUSTICE. D. K. Chirwa, SUPREME COURT JUDGE. L. P. Chibesakunda, SUPREME COURT JUDGE.