Washington v New Plaza Enterprises Ltd (Appeal 147 of 2021) [2022] ZMCA 35 (3 May 2022)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 147 OF 2021 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: MOLLY PELEKAMOYO WASHINGTON APPELLANT AND NEW PLAZA ENTERPRISES LIMITED RESPONDENT CORAM: Chashi, Ngulube and Sharpe-Phiri, JJA ON: 5th April and 3rd May 2022 For the Appellant: G. Haakainsi - Messrs L. M Chambers For the Respondent: M. Chitundu - Messrs Barnaby, Chitundu & Khunga Advocates JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. The Attorney General v. Marcus Kapumba Achiume (1983) ZR, 1 2. 3. Covindbhai Baghabhai Patel and Vallabhai Baghabhai Patel v Monile Holding Company Limited (1993) SJ 19 (SC) Chifuti Maxwell v Chafingwa Rodney Mwansa and Rodgers Chipili Mwansa - SCZ Appeal No. 09/2016 -J 2- 4. Duncan Mbembeta v Charles Lundofu - CAZ Appeal No. 195 of 2020 5. Nevers Sekwila Mumba v Muhabi Lungu - SCZ Appeal No. 200/2014 6. New Horizon Printing Press Limited v Waterfield Estates Limited and Commissioner of Lands - SCZ Judgment No. 58 of 2015 7. Clement Chuuya and Hildah Chuuya v J J Hankwenda- SCZ Judgment No. 3 of 2002 8. Kabwe Transport Company Limited v Press Transport (1975) Limited (1984) ZR, 41 9. Livingstone Motor Assemblies Limited v Indeco Estates Development Company Limited and Others - SCZ Appeal No. 4 of 2007 10. Afritec Asset Management Company Limited v The Gynae and Antenatal Clinic and Kenneth Muuka - SCZ Selected Judgment No. 11 of 2019 11. Abdul Kadir Asafa v Greenwell Shimukonga (being sued as the current Chairman General of the Cross Border Traders Association) - 2006/HP/0719 (unreported) Legislation referred to: 1. 2. The English Law (Extent of Application) Act, Chapter 11 of the Laws of Zambia Zambia Civil Procedure Commentary and Cases - Patrick Matibini, LexisNexis -J 3- 3. The High Court Act, Chapter 27 of the Laws of Zambia Rules referred to: 1. The Rules of the Supreme Court (White Book) 1999 2. The High Court Rules, Chapter 27 of the Laws of Zambia 1.0 INTRODUCTION 1.1 This appeal emanates from the Ruling delivered on 21st December 2020 by Honourable Mr. Justice K. Chenda, Judge of the High Court, Commercial Division. 1.2 In the said Ruling, the learned Judge refused to set aside his Order, which was granted on 21st September 2020 in the absence of the Appellant. 2.0 BACKGROUND 2.1 On 11th July 2018, the Respondent, as plaintiff in the court below, commenced proceedings by way of writ of summons under cause number 2018/HP/1124 claiming the following reliefs: -J 4- (i) An Order that the defendant, now the Appellant pays current market value of the property, to be assessed by the court. (ii) Damages for loss of opportunity by the Respondent to purchase the property (iii) Damages for breach of contract (iv) Interest on any amount due to the Respondent (v) Any other relief the court deems fit under the given circumstances. (vi) Costs. 2.2 On 17th October 2018, Judgment in default of appearance and defence was entered in favour of the Respondent. On 24th July 2019 the Deputy Registrar assessed damages at K2,500,000.00. Consequently the Respondent was on 7th February 2020 granted a Charging Order in respect to Plot Lus/2288 Lusaka. 2.3 On 5th June 2020, the Respondent commenced fresh proceedings under cause number 2020/HPC/0365 for an Order for payment of the Judgment sum, foreclosure, -J 5- vacant possession and sale of the property. The application was predicated on Order 50/9A of The Rules of the Supreme Court1 (RSC). The learned Judge granted the Orders on 21st September 2020 in the absence of the Appellant. On 10th November 2020, the Appellant took out summons to set aside the said Orders pursuant to Order 35/3 of The High Court Rules2 (HCR) 3.0 DECISION OF THE COURT BELOW 3.1 After considering the affidavit evidence and the arguments, the learned Judge opined that the evidence before the court shows that, the Appellant received court process or was in the very least aware of the court action. That consequently, the Appellant’s claim to the contrary that she was not aware of the court action and process, as they were forwarded to an email address she no longer uses, was not plausible and therefore the threshold of “sufficient cause” had not been met for the court to vacate its earlier decision. 4.0 THE APPEAL 4.1 Dissatisfied with the Ruling, the Appellant has appealed to this Court advancing three grounds as follows: -J 6- (i) That the learned Judge erred in law and fact when he dismissed the application to set aside the Order made in the absence of the Appellant and held that the Appellant was aware of the court action when in fact, the Appellant was not aware. (ii) That the learned Judge erred in law and fact when he dismissed the application to set aside the Order made in the absence of the Appellant and discharged the Order for stay of execution granted to the Appellant on 11th November 2020 despite having acknowledged that there is a raging battle challenging the root Judgment in default under cause number 2018/HP/1124, which Judgment was in fact stayed pending the hearing of the application to set it aside (iii) That the learned Judge erred in law and fact when he dismissed the application to set aside the Order made in the absence of the -J 7- Appellant and discharged the Order of stay granted to the Appellants on 11th November 2020, thereby allowing the enforcement of a Charging Order which is not applicable in our jurisdiction. 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 In arguing the first ground, Mr. Haakainsi Counsel for the Appellant relied on the Appellants heads of argument which were filed into court on 8th July 2021. It was submitted that the Appellant was never served with the court process as the email address to which the process was sent, was no longer being used by her as it had been blocked sometime in 2018 following identity fraud on the same email address. That the basis for the learned Judge’s refusal to set aside the court Order of 21st September 2020 was that service was effected on a different email address and not the one the Appellant was taking issue with. Further, that the court process was initially served on the Appellant’s lawyers who acted for her in another matter -J 8- and that the Appellant acknowledged being notified of the court process by the said lawyers. 5.2 Counsel submitted that, the record shows that the lawyers who were served with the court process returned the same to the Respondent’s lawyers as they had no instructions to accept the same. That there is nowhere on the record where it shows that the lawyers who were served, sent the court process to the Appellant. Counsel further submitted that the learned Judge also based his decision on a purported WhatsApp conversation which was categorically disputed by the Appellant, without fairly evaluating the evidence and giving reasons why he believed the Respondent and not the Appellant. Reliance in that respect, on the need for balanced evaluation of evidence was placed on the case of The Attorney General v. Marcus Kapumba Achiume1 and submitted that, this is a proper case for this Court to reverse the findings of the learned Judge as they were not supported by evidence. 5.3 Counsel drew our attention to the case of Covindbhai Baghabhai Patel and Vallabhai Baghabhai Patel v Monile -J 9- Holding Company Limited2 where the Supreme Court in considering the requisites for setting aside a default Judgment commented as follows: “We appreciate that according to the note to Order 13/9/5 of the Supreme Court Practice (the White Book) 1988 Edition, even if a defendant tells a lie about his reasons for delay, a default Judgment should be set aside if a triable issue is disclosed.” 5.4 Counsel also relied on the case of Chifuti Maxwell v Chafingwa Rodney Mwansa and Rodgers Chipili Mwansa3 where the Supreme Court reiterated the need to consider the reason for a party’s absence as that meets the threshold required in an application to set aside a Judgment obtained in the absence of a party. 5.5 It was Counsels contention that from the aforestated case, the main consideration when hearing an application to set aside a default Judgment is the need to accord both parties an opportunity to be heard and allow triable issues to proceed to trial. We were urged to uphold the first ground and overturn the Ruling of 21st December 2020. -J 10- 5.6 In arguing the second ground, Counsel submitted that, it was a misdirection by the learned Judge to dismiss the application to set aside the court Order made in the absence of the Appellant and discharge the Order of stay granted to the Appellant on 11th November 2020, despite having acknowledged that there is a raging battle challenging the root Judgment in default in cause number 2018/HP/1124 which Judgment was in fact stayed pending hearing of the application to set aside the said default Judgment. 5.7 It was submitted that, the learned Judge having acknowledged the raging battle challenging the root Judgment in default which was stayed, he did not consider the effect or the implication of his decision in light of his earlier Order of 21st September 2020 for the sale of the Appellants property. We were urged to uphold the second ground and overturn the Ruling of 21st December 2020. 5.8 In arguing the third ground, Counsel brought it to our attention that the point of law raised in this ground was not raised in the court below, due to the nature of the application which was in the court below. It was contended that a point of law can be raised at any stage even on appeal. Reliance was placed on the Court of Appeal case of Duncan Mbembeta v Charles Lundofu4 where we restated the settled law that, a point of law can be raised at any stage, even on appeal. Our attention was also drawn to the Supreme Court case of Nevers Sekwila Mumba v Muhabi Lungu5 where it was stated as follows: “Furthermore, we are loath to reverse a lower court based on an issue that the trial court has not ruled upon. This Court will however, affirm or overrule a trial court on any valid legal point presented by the record, regardless of whether that point was considered or even rejected.” 5.9 Counsel submitted that it was a misdirection by the court to dismiss the Appellants application to set aside the court Order made in her absence and allow the enforcement of a Charging Order which is not applicable in this jurisdiction. It was argued that, the Charging Orders Act 1979 is not applicable in Zambia as it was enacted after 1911. That -J 12- the extent to which substantive laws of England may be applied in aid is prescribed by The English Law (Extent of Application) Act1 which under Section 2 states the applicable law as follows: “Subject to the provisions of the constitution and to any other written law: (a) The common law (b) The doctrine of equity (c) The statutes which were in force in England on 17th August 1911, being the commencement of Northern Rhodesia Order in Council 1911, and (d) Any statute of later date, than that mentioned in paragraph (c) In force in England, now applied to the Republic or which hereafter shall be applied thereto by any Act of Parliament or otherwise; shall be in force in the Republic." 5.10 It was submitted that the Charging Orders Act 1979, is not one of those statutes extended to Zambia. It was further -J 13- submitted that there is currently no Act of Parliament in Zambia which domesticated the Charging Order Act 1979. That the editorial introduction to Order 50/1 RSC which states that: “This Order contains rules in support of the Charging Orders Act 1979” clearly shows that Order 50 RSC is for enforcement of the Charging Orders Act 1979 5.11 According to Counsel, Rules of the Supreme Court of England are only to be resorted to, where there is a lacuna in our rules regarding practice and procedure. It was submitted that there is no lacuna under our laws to resort to the use of Order 50 RSC as Order 42 HCR adequately provides for levying of execution on land of a Judgment debtor. We were urged to uphold this ground and discharge the Charging Order granted to the Respondent against the Appellant’s property no. Lus 2288, Lusaka. 6.0 ARGUMENTS IN RESPONSE 6.1 In response to the first ground, Mr. Chitundu Counsel for the Respondent, submitted that this ground is anchored on the premise that the Order of 21st September 2020 was arrived at without hearing the Appellant as she claims she -J 14- was not aware of the proceedings leading to the decision of the court. According to Counsel, the requisite for setting aside a default Judgment are as follows: (i) The party was not duly served with court process hence was not aware of the proceedings and (ii) There is sufficient explanation for absence of the party at the hearing of the matter. 6.2 It was submitted that it is trite law that where the court is satisfied that an absconding party is aware of the proceedings yet stays away without an explanation, the court is within its right to proceed with the hearing and arrive at any decision it deems fit. Our attention was drawn to the affidavit of service at page 84,99 to 101 of the record of appeal (the record) and submitted that process was never served on the email address, which the Appellant claims was blocked and not in use, but was actually served on the address molly-pelekamotio&yahoo. co.uk . We were referred to the emails appearing at pages 359-361 of the record and submitted that the court below cannot be faulted for -J 15- proceeding at the hearing of 21st September 2020 and for declining to set aside the Order of 21st September 2020. 6.3 In response to the second ground, Counsel submitted that it would have been improper for the court below to set aside its Order of 21st September 2020 on the premise of a mere application to set aside a default Judgment, when the Appellant had an opportunity to appear before the court and contest the action, but yet opted to sit on her rights and now wants to fault the court. Our attention was drawn to the case of New Horizon Printing Press Limited v Waterfield Estates Limited and Commissioner of Lands6 where the Supreme Court held that where a party is aware of the matter and stays away from the proceedings, he cannot later on come and blame the court for making a decision against him. 6.4 In response to the third ground, Counsel submitted that the issue of whether Charging Orders are applicable in Zambia was addressed in the works of the learned author Dr. Justice Patrick Matibini in Zambia Civil Procedure Commentary and Cases1. According to Counsel, the -J 16- application, subject of the Ruling being impugned, was made pursuant to Order 50/9 A RSC, which allows the applicant to charge the property of the debtor as one of the modes of enforcement of a Judgment or Order for payment of money to a creditor. It was submitted that in our jurisdiction, Order 48/6 HCR, outlines a Charging Order as an available remedy to a Judgment creditor as a mode of enforcing of a money Judgment, but it does not provide for the procedure to be followed. That as the law is silent on the procedure, resort has to be made to RSC as provided for by Section 10 of The High Court Act3. Our attention was drawn to the Supreme Court case of Clement Chuuya and Hildah Chuuya v J J Hankwenda7, which seems to endorse the use of Order 50/9A RSC7 6.5 In respect to the learned author Dr. Justice Patrick Matibini, our attention was drawn to pages 1380-1381 where it is stated as follows: “In this regard, Order 50 of the Rules of the Supreme Court (in the absence of a rule in the High Court Rules) -J 17- vests in the High Court jurisdiction to make a Charging Order for the purpose of enforcing a Judgment or Order of the court... Charging Orders can be obtained not only on land, but also on securities or an interest in partnership property. It must be noted here that Order 50 RSC referred to above is premised on the Charging Act of 1979. Therefore a question that maybe asked is this: Is it legally tenable to invoke Order 50, granted that it is premised on the Charging Act of 1979? The answer is in the affirmative for the following reasons. First, Order 50 is not part of the Charging Act of 1979, it merely outlines the procedure to be followed in applying for a Charging Order. Second, even assuming that Order 50 was part of the Charging Act of 1979 it will be recalled that in Kabwe Transport Company Limited v Press Transport8 in a Judgment delivered by Gardner JS, the Supreme Court made the following observation: -J 18- “We have no hesitation in finding that, where there is a specific Act dealing with a matter of law, such as evidence in this country, there is no default of legislation as envisaged by Section 10 of the High Court Act and English Practice and Procedure does not apply.” Therefore, where there is default as envisaged by Section 10 of the High Court Act, reliance may be placed on the law and practice in England in the High Court of justice up to 31st December 1999. Third, that English substantive law has been referred to in this jurisdiction, where there has been default in our own substantive law was confirmed by the Supreme Court in Livingstone Motor Assemblies Limited v Indeco Estates Development Company Limited and Others9, when it made the following observation in a Judgment delivered by Mambilima DC J: “There is no provision in this division dealing with the status of a receiver/manager in a case where -J 19- there is a liquidator overseeing the winding up of a company. It is our considered view, therefore that in this respect, a lacuna does exist and there is therefore a need to draw a parallel between the laws of England and those of Zambia.” In the circumstances, it is therefore legally tenable to rely on Order 50 RSC.” 6.6 It was Counsel’s contention that, it follows therefore, that in our jurisdiction, where a Judgment creditor opts to go by Charging Order, resort has to be made to Order 50 RSC, which provides for the procedure as our own laws do not provide for the procedure. 7.0 ARGUMENTS IN REPLY 7.1 In reply to the first and second grounds, Counsel for the Appellant submitted that the Respondent did not exhibit any email received from the Appellant acknowledging receipt of the court process. It was further submitted that the dispute between the parties as to which email address the court process was served, should have inclined the court below to set aside the court Order and afford the -J 20- Appellant the opportunity to be heard and the matter determined on merit. 7.2 In reply to the third ground, Counsel submitted that the opinion by the learned author, Dr Justice Patrick Matibini in Zambia Civil Procedure, Commentary and Cases is not binding on this Court. That the position taken by the author is merely the authors opinion and it flies in the teeth of the recent Supreme Court case of Afritec Asset Management Company Limited v The Gynae and Antenatal Clinic and Kenneth Muuka10 where the court gave guidance on reliance on the provisions of the White Book which makes reference to an Act not applicable to Zambia. In that case, the Supreme Court was faced with a provision of the White Book which makes reference to The Supreme Court Act 1981. 7.3 The Court in disapproving reliance on the White Book in that respect had this to say: “In addition to what we have said in the preceding paragraph, it is important to note that the prescribed procedure of appeal against an Order -J 21- granting or refusing an interlocutory injunction arises from the English Supreme Court Act of 1981. The relevance of this is that, although we resort to the White Book where our practice and procedure is deficient, the statute book of England beyond the year 1911 is not applicable to us. This is not withstanding the fact that such statute is referred to in the White Book.” 7.4 It was counsel’s submission that Order 50 RSC is meant for enforcement of the Charging Orders Act 1979, which is not applicable to Zambia. That it was therefore a misdirection by the court below to dismiss the application to set aside the court Order made in the absence of the Appellant and allow the enforcement of the Charging Order which is not applicable in our jurisdiction. 8.0 OUR ANALYSIS AND DECISION 8.1 We have considered the Ruling being impugned and the arguments by the parties. We shall first deal with the third -J 22- ground, the outcome of which will have an effect on the first and second grounds. 8.2 The third ground attacks the refusal by the learned Judge to set aside his Order of 21st September 2020, in which he granted the Respondent an Order for enforcement of a Charging Order, which according to the Appellant is not applicable in our jurisdiction. It is not in dispute that in granting the Order of 21st September 2020, the learned Judge in the court below, was moved under Order 50/9 A RSC. The manner in which the court is moved is important as it determines whether the court has jurisdiction or not. The issue which has arisen is whether Order 50/9A RSC can be invoked in our jurisdiction. 8.3 In arguing the applicability of a Charging Order, Counsel drew our attention to Order 48/6 HCR. We note that Order 48 HCR deals with proceedings in the District Registry. Order 48/6 HCR provides as follows: -J 23- “6. Where a cause or matter is proceeding in a District Registry, proceedings relating to the following matters: (a) Leave to issue or renew writs of execution (b) Examination of Judgment debtors for garnishee purposes or under Order 42/16 (c) Garnishee Orders (d) charging orders nisi and (e) Interpleader Orders Shall, unless the court or Judge shall otherwise order be taken in the District Registry 8.4 Order 48/6 HCR, in our view, merely directs where an application for a Charging Order nisi must be made, in that it must be made in the District Registry, where a cause or matter is proceeding in the District Registry. This in our view does not aid the Respondent in its argument on the applicability of Order 50/9A RSC 8.5 Our attention was also drawn to the case of Clement Chuuga7. We note that in that case, the Supreme Court -J 24- discussed at length the effect of Order 50 RSC and the effect of its non-compliance. We however note that the issue of its applicability in our jurisdiction was not an issue before them. 8.6 Reference was also made to the text by the learned author Dr Matibini wherein he posed the issue of whether it was legally tenable to invoke Order 50 RSC granted that it is premised on the Charging Order Act 1979, which he answered in the affirmative. We agree with Counsel for the Appellant that, that is the learned author’s opinion which is not binding on this Court. 8.7 As earlier alluded to, the Order of 21st September 2020 was predicated on Order 50/9A RSC. The editorial note under Order 50/0/2 RSC as earlier alluded to states that: “This Order contains rules in support of the Charging Orders Act 1979” Therefore, Order 50 RSC is entirely grounded on the Charging Orders Act 1979. •• -J 25- 8.8 In the High Court case of Abdul Kadir Asafa v Greenwell Shimukonga (being sued as the current Chairman General of the Cross Border Traders Association)11 Honourable Mrs. Justice F. M Chisanga, High Court Judge as she then was, exhaustively dealt with the issue of whether a Charging Order on land, issued pursuant to Order 50 RSC is available in our jurisdiction as a mode of enforcement of Judgments. The learned Judge considered The English Law (extent of Application) Act and the history of Charging Orders obtainable in England and most of the authorities which have been cited in this appeal and concluded that, the Charging Orders Act 1979 is not one of those Acts extended to Zambia. Chisanga, J further held that, The Charging Orders Act 1979 falls outside the remit of the High Court’s Jurisdiction and is therefore unavailable. 8.9 We are highly persuaded by the Abdul Kadir Asaya case and we accordingly adopt it. In adopting this case, we are fortified by the guidance rendered by the Supreme Court in the Afritec Asset Management Company Limited case on -J 26- reliance on the provisions of the RSC which makes reference to an Act not applicable to Zambia. 8.10 In view of the aforestated, the learned Judge in the court below having been moved under Order 50 RSC, had no jurisdiction to hear the matter. The proceedings were therefore a nullity and the Order of 21st September 2021 with its attendant Orders are accordingly set aside. The third ground of appeal succeeds. 8.11 The third ground having succeeded, the first and second grounds become otiose. The costs of the appeal shall be borne by the Respondent arid thjey are to be paid forthwith. Same to be taxed in deiault/oyagreement. / J. chashi COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE