Oliver John Irwin v Irwin and Anor (SCZ 14 of 2006) [2006] ZMSC 26 (24 March 2006)

(173) IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) SCZ JUDGMENT NO. 14 OF 2006 APPEAL NO. 84 OF 2004 BETWEEN? OLIVER JOHN IRWIN AND JOAN IRWIN LEOPARD INVESTMENT COMPANY LIMITED APPELLANT RESPONDENT INTERVENING PARTY CORAM: LEWANIKA, DCJ, CHIBESAKUNDA AND SILOMBA, JJS. On the 5th April, 2005 and 24th March, 2006, For the Appellant: Mr, F, S. Mudenda, Lewis Nathan Advocates For the Respondent: Mr, R. Chongwe, SC, RMA Chongwe and Company For the Intervening Party: Mr. V. Malambo, SC, Malambo and Company JUDGMENT SILOMBA, JS, delivered the judgment of the court The delay in delivering this judgment is due to events that were beyond our control. We nonetheless deeply regret the delay. This is an appeal against the ruling of the 22nd of October, 2003 in which the learned trial Judge dismissed the appeal to a Judge at Chambers, which was adjourned sine die with liberty to restore on the 5th of August, 1992, for want of prosecution In this appeal, we shall refer to the appellant as the respondent and the respondent as the petitioner, which is what they were in the court below. J 2 (174) The facts giving rise to the appeal, and which are common cause, can be stated as follows: On the 3rd of February, 1992usummons for a vesting order were^fiied by the petitioner as a result of an “agreed settlement of property and maintenance” which followed the conclusion of divorce proceedings between the petitioner and the respondent. The summons was opposed by the respondent. The vesting order was granted on the 30th of April, 1992 by the learned Deputy Registrar. The order was stayed on the same day on an application by the respondent. Being dissatisfied with the vesting order, the respondent filed a notice of appeal to a Judge at Chambers on the 12th of May, 1992. However, by consent of the parties the matter was, on the 5th of August, 1992, adjourned sine die with liberty to restore. Without the cause being restored to the active cause list, an ex parte application by Leopard Investments Limited, as intervening party, was heard and granted on the 11 of September, 1992. The application was made on the basis that its interest in properties, covered in the agreed settlement of property and maintenance, were to be affected. _____ We shall not go through the chronicle of events that followed thereafter as these are well covered in the ruling of the learned trial Judge. However, for purposes of this appeal, it is important to note that on the 5th of September, 2001 the petitioner filed a notice to proceed, with an application for orders to dismiss the appeal to a Judge at Chambers for want of prosecution and discharge a stay of execution of the vesting order that was granted on the 30th of April, 1992. The petitioner also filed ex parte J 3 (175) summons on the same day for the learned Deputy Registrar to execute an assignment on behalf of the respondent. On the 15th of October, 2002, the application was granted to register the assignment of property, the subject of the vesting order, in favour of the petitioner. On the 16th of October, 2002 the respondent filed summons to stay execution of the order of the 15th of October, 2002 pending the hearing of an application to set aside the said order. The application was opposed by the petitioner and on the 7th of November, 2002, the return date, the application was struck out for want of prosecution because counsel for the respondent and the intervening party were absent from court. The application to restore the summons that had been struck out on the 7th of November, 2002 was lodged immediately on that same date. The matter was restored and a stay of execution of the order of the 15th of October, 2002 was granted on the same day. Eventually the order of the learned Deputy Registrar dated 15th of October, 2002 was set aside on the 21st of November, 2002. It would appear, from the record, that the setting aside of the order of the 15^ of_October, 2002 resurrected the petitioner’s other summons to dismiss the action for want of prosecution, which was filed some nine months earlier on the 13th of February, 2002. After a series of adjournments, the application was finally set down for inter partes hearing on the 27th of June, 2003. J 4 (176) On the return date, what was to be determined first was, according to the learned Judge, an application to dismiss the appeal for want of prosecution as per summons of 13th of February, 2002 and counsel for the petitioner wa^ to start the ball rolling. Surprisingly, counsel for the •9 respondent proceeded to argue first on the notice of appeal to a Judge at Chambers, which was adjourned sine die with liberty to restore on the 5th of August, 1992. Counsel for the petitioner questioned the merit of the argument when the appeal had been abandoned along the way and had never been restored. The teamed Judge agreed with the petitioner’s counsel and observed that, in fact, the application to dismiss the appeal for want of prosecution was before him because the respondent had not restored the appeal since the 5th of August, 1992. After considering the provisions of Order 25ZL/1 of the white Book, 1999 Edition, the learned Judge found that there was inordinate and inexcusable delay and contumelious default in prosecuting the appeal to a Judge at Chambers. He allowed the petitioner’s application and dismissed the appeal for want of prosecution. There are two grounds of appeal that the respondent advanced before us. These are:- 1. The learned trial Judge erred in law and fact in dismissing the appeal for want of prosecution, the appeal having been adjourned sine die with liberty to restore with the consent of both parties; and J 5 (177) 2. The learned trial Judge erred in fact and in law when he refused to hear or determine the arguments on the substantive matter. There tie very elaborate heads of arguments filed by the parties to these proceedings, including the intervening party. We have read the heads of argument. We have also carefully examined the record of appeal and the submissions made before us. In the view we take of this appeal, we shall not delve into the submissions and arguments because the real issue is one of procedure, to which the parties may not have addressed their minds in view of the long time this matter has been allowed to pend. It is a fact that on the 5th of August, 1992 counsel, representing the petitioner and the respondent, by consent, agreed to have the notice of appeal to a Judge at Chambers adjourned sine die with liberty to restore. We note from the record that the matter was re-activated on the 5th of September, 2001 with a notice to proceed. The notice was accompanied by three applications to (a) dismiss the appear to a Judge at Chambers for want of prosecution (b) discharge a stay of execution of the vesting order dated 30th of April, 1992 and (c) seek an order for the learned Deputy Registrar to execute an assignment of the properties under the vesting order on behalf of the respondent. At the time of filing the notice to proceed, there were few essentials, in terms of procedure, that the petitioner was supposed to undertake. In terms of Order 2, Rule 3, of the High Court Rules, the party who desires to proceed shall give one month notice to the other party of his intention to J 6 (178) proceed in a matter or cause in which there has been no proceeding for one year from the last proceeding. It is common cause that by the 5th of September, 2001, when the notice to proceed was given by the petitioner, the proceedings had stalled for more than nine years. Since our own Rules limit the period of inactivity in a proceeding to one year, there is need to fill the lacuna with Order 3, Rule 6, of the Rules of the Supreme Court, 1999 Edition, which requires the filing of the notice to proceed in a matter or cause in which there has been no proceeding for a year or more. We have looked at the petitioner’s notice of intention to proceed at page 106 of the record and we find that there is nothing wrong with it in form and content. However, instead of proceeding with the applications to dismiss the notice of appeal for want of prosecution and discharge the stay of execution of the vesting order at the end of the 30 days notice, the two applications should have been preceded by an application to restore the notice of appeal that had been adjourned sine die with liberty to restore on the 5th of August, 1992 with the consent of the parties. This was not done by the petitioner and the view we hold is that the consideration of the applications to dismiss the appeal for want of prosecution, was misconceived in law and procedure. For reasons, other than those argued before us and advanced in the heads of argument, we shall allow the appeal and set aside the order of the learned trial Judge dismissing the appeal for want of prosecution. J 7 (179) We, accordingly, order that the cause or matter be remitted back to the learned Deputy Registrar for purposes of restoration and thereafter determination of the appeal at Chambers before another Judge. Costs of the appeal shall abide the outcome of the proceedings in the court below. DEPUTY CHIEF JUSTICE. L. P. Chibesakunda, SUPREME COURT JUDGE. S. S. Silomba, SUPREME COURT JUDGE.