Kalenga T/A Kamwi Contractors v China National Electric Engineering Company Limited (SCZ 8 198 of 2014) [2015] ZMSC 46 (8 September 2015)

Jl IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL NO. 167/2014 SCZ/8/198/2014 BETWEEN MWILA KALENGA TIA KAMWI CONTRACTORS APPELLANT AND CHINA NATIONAL ELECTRIC ENGINEERING COMPANY LIMITED RESPONDENT Coram: Chibomba, Hamaundu and Kaoma, JJS. On 2nd September 2015 and on 8th September, 2015. For the Appellant: For the Respondent: No Appearance. No Appearance. JUDGMENT Chibomba, JS, delivered the Judgment of the Court. Cases referred to: 1. 2. Lisulo Vs Lisulo (1998) ZoR. 75. Jamas Milling Company ZoR.790 Limited And Imex International (Pty) Limited (2002) Legislation referred to: 1. The High Court Rules, Cap 27 of the Laws of Zambia. When this appeal was called for hearing, there was no appearance by both the Appellant and the Respondent. We however, decided to J2 reserve the matter for judgment as the record showed that both the Appellant and China National Electric Engineering Company Zambia Limited were aware of the hearing date and they had both filed written heads of argument into Court. The Appellant appeals against the Ruling of the High Court at Lusaka, dated 24th July, 2014 in which the learned Judge dismissed the Appellant's application to review her earlier Ruling dated 1ih May, 2014 which set aside and dismissed the Appellant's action on the ground that the party sued as Defendant was a different Company from the Zambian Company which was served with the Court Process. For convenience, we shall refer to the Appellant in this Court as the Plaintiff and the Respondent as the Chinese Company or the Defendant which it was in the Court below. The history of this matter is that on 4th February, 2014 the Plaintiff, by Writ of Summons, commenced an action against the Defendant, a Limited Company called China National Electric Engineering Company Limited, a Chinese incorporated company, hereinafter referred to as the Chinese company, claiming damages for wrongful termination of contract; damages for loss of business; payment of the sum of K945, 000.00 commission from March, 2013 to October, 2013; payment of the sum of K405, 000.00, being three months' payment in lieu of termination notice; interest; costs and any other relief the Court would deem fit. In accordance with the Statement of Claim, on 11th March, 2013 the Plaintiff, trading as Kamwi Contractors, carrying on the business of general supplier and contractor, entered into a contract with the Chinese Company, described as an "electrical engineering contractor" that was engaged by the Government of the Republic of Zambia to construct the Lunzua Hydro Power Station in Mpulungu. It was averred that under the said contract, the Plaintiff was engaged by the said Chinese Company as supervisor to supervise the Defendant's casual workers on a daily basis and to maintain records of the same at an agreed commission of K135,000.00 per month, being thirty percent of the sum of K450,000.00 representing the average monthly wage bill for the Defendant's workers. The contract allowed either party to terminate the contract by giving 3 months' notice. The Plaintiff however, alleged that on 28th October, 2013, the Defendant terminated the contract without due notice and that despite promises to regularize the payments, the Defendant did not pay the agreed commission of K135,000.00 per month from 11th March, 2013 to 28th October, 2013 amounting to K945,000.00, the subject of the Plaintiff's claim in the Court below. That the Defendant only paid commission on an J4 average of only 42 workers and not 300 workers, thereby, prompting the Plaintiff to commence an action to recover the difference between the agreed amount and what was paid by the Defendant. The record shows that on 8th February, 2014 the Court process was served on China National Electric Engineering Company Zambia Limited, a Zambian incorporated company, hereinafter called the Zambian Company. In response, the Zambian Company entered a conditional Memorandum of Appearance and applied by Summons and supporting affidavit, to set aside the Writ of Summons and Statement of Claim for irregularity pursuant to Order 11 Rule 1 (4) of the High Court Rules, Cap 27 of the laws of Zambia. The Plaintiff filed an affidavit in opposition to the application. After hearing both parties, in the Ruling dated 1ih May, 2014 (the first Ruling) the learned Judge dismissed the entire action with costs, for among other reasons, that the Zambian Company was a different Company from the Chinese Company and that the evidence before her showed that the contract was between the Plaintiff and the Chinese Company and not with the Zambian Company. On 17th June, 2014 the Plaintiff, by Summons and supporting affidavit, applied to review the Ruling of 1ih May, 2014 pursuant to Order 39 Rule 1 of the High Court Rules, Cap 27 of the Laws of Zambia. The J5 grounds given were, inter alia, that the Applicant, the Zambian Company, which applied to have the Court Process set aside, acted as agents of the Defendant as it was not a party to these proceedings. And that since the Plaintiff had performed its obligations under the contract in question, it was desirous of having its claims against the Defendant settled on the merits. The Zambian Company opposed the application for review and filed an affidavit in opposition. After hearing both parties, in her Ruling dated 24 th July, 2014 (the second Ruling), the subject of this Appeal, the learned Judge declined to re-open the case and to review her Ruling of 1ih May, 2014 on grounds that the evidence upon which the Plaintiff had based its application, namely, that the evidence that the Zambian Company which was served with the Court process and had applied to set aside the Court Process was not a party to these proceedings, was readily available and was not fresh evidence upon which the review could have been premised. The learned Judge was therefore, of the view that the Plaintiff had not satisfied the requirements for review or established sufficient grounds to warrant her to review her earlier Ruling. With regard to the Plaintiff's contention that issues of wrong service of the Court process on the Zambian Company were issues bordering on misjoinder which by law do not defeat a cause of action, the learned Judge J6 took the view that this argument sounded more like a ground of appeal against her earlier Ruling of 1ih May, 2014. She, therefore, dismissed the application to review. Dissatisfied with the decision by the learned Judge, the Plaintiff has appealed to the Supreme Court, advancing three grounds of appeal as follows: "1. 2. 3. The Court below misdirected itself overlooked ignored the fact appearance in this cause is not a party to this cause; in law and in fact when it the party that entered that and/or The Court below erred in law when it dismissed the action commenced by the Appellant herein for reasons bordering on joinder which at law does not defeat a cause; The Court below erred both in law and in fact when it overlooked the provisions of Order 10, Rule 14 of the High Court Rules, Chapter 27 of the Laws of Zambia which renders service of Court process on a regular if same is company residing outside the Court's jurisdiction effected on the company's agents." Although lengthy and detailed heads of argument in support of this Appeal were filed, the view that we take of this Appeal is that it is not necessary for us to reproduce these heads of argument suffice to say that we have read them. It is also our firm view that the central question raised in this Appeal is whether or not the learned Judge was on firm ground when she declined to review her earlier Ruling on the reasons that we have already referred to above. J7 In this matter, perusal of the record has shown that the Notice of Appeal, which is at page 4 of the record of appeal, was filed on 22 0d August, 2014. It reads as follows: the Honourable Justice Mrs. F. M. Chishimba at "TAKE NOTICE that the Appellant being wholly dissatisfied with the ruling of for Zambia at Lusaka on the 24th of July 2014 intends to appeal to the Supreme the whole judgment under cause number 2014/HPC/0052". Court against (Underlining is ours for emphasis) the High Court The Ruling of 24th July, 2014 referred to in the above Notice of Appeal is the one in which the learned Judge declined to review her earlier Ruling of 1ih May, 2014. We, however, wish to point out from the outset that the manner in which the grounds of appeal in this matter have been crafted and indeed, the supporting heads of argument, show clearly that these are at variance with the Ruling appealed against. They tend to challenge the Ruling of 1ih May, 2014 which set aside the Court Process and dismissed the action for irregularity when the Notice of Appeal relates to the Ruling of 24 th July, 2014 which declined to review the earlier Ruling. The end result is that the Appeal before us is incompetent as there is no appeal against the first Ruling which the grounds of appeal and the heads of argument attack. Nonetheless, even assuming that the grounds of appeal and the heads of argument were properly crafted against the Ruling of 24 th July, J8 2014 referred to in the Notice of Appeal, we are satisfied that the central question as posed above being whether or not the learned Judge was on firm ground when she declined to review her earlier Ruling on the reasons given in that Ruling; we would nevertheless come to the conclusion that the learned Judge was on firm ground when she declined to review her earlier decision because the Plaintiff's application did not meet the parameters set for review of judgments as provided under Order 39 of the High Court Rules, Cap 27 of the Laws of Zambia. In a plethora of our decisions including the cases of Lisulo vs. Lisulo1 and Jamas Milling Company vs. Imex International (Pty) Limited2 we respectively stated as follows: "The power to review under Order 39 Rule 1 is discretionary and there must be sufficient grounds to exercise that discretion." for the Judge "For review under Order 39 Rule (2) of the High Court Rules to be available the party seeking it must show that he has discovered fresh material evidence which would have had material effect upon the decision but could not with reasonable diligence have been discovered before .... It is clear on the fresh evidence must have existed at the time of the this authority that decision but had not been discovered before." As can be seen from the above cases, the power to review under Order 39 of the High Court Rules is discretionary. It is also trite that discretionary powers must be judiciously exercised and on good and/ or sufficient grounds. J9 In the current case, we are not satisfied that the learned Judge did not exercise her discretionary powers properly so as to warrant our intervention. In declining to review her earlier Ruling, the learned Judge considered the grounds upon which the review was sought. She put it thus:- "The gist of the said grounds being that the applicant who applied to set aside the Writ of Summons and Statement of Claim is China National Electric Engineering Zambia which is not party to these proceedings who were served the process. this evidence was readily available and is not fresh evidence. This issue was submitted in the application to set aside the Writ and Statement of Claim which ruling is now subject of review. It is my view that the Plaintiff has not established the review of my earlier decision ... The sufficient grounds that warrant Plaintiff has not satisfied the requirements for review and no sufficient grounds are established." is my view that It Clearly, the learned Judge gave good and sound reasons which we entirely agree with as the Plaintiff's application did not meet the thresholds for review. The learned Judge rightly pointed out that the fact that it was the Zambian Company which was served with Court Process even though it was not a party to those proceedings and that this was not fresh material evidence as the Plaintiff was well aware of this fact as the Plaintiff had alluded to this in its affidavit in opposition of the Application to set aside the Writ of Summons for irregularity was indeed not fresh material evidence which could not have been discovered with diligent search. We also agree with the learned Judge that the question whether or not the issue of wrong , -. no . service of the 'Court process bordered on misjoinder Vvhich should not defeat a cause of action, sounded more like a ground of appeal against the Ruling of 1ih May, 2014 and not a ground for review. For the reaso(1s given above, we find no merit in this Appeal. The same is dismissed with costs to the Zambian Company, to be taxed in default of agreement. H. Chibomba SUPREME COURT JUDGE /~':t'; > ",. ,.0' '.~.•."'-./ , .;, . .,,' ------------------~-~---------------------- E. M. Hamaundu SUPREME COURT JUDGE R. M. C. Kaoma SUPREME COURT JUDGE