Chikopela v Zambia Bata Shoe Company PLC (HP 836 of 2003) [2015] ZMHC 139 (14 October 2015)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT,LUSAKA (Civil Jurisdiction) I 2003/HP/0836 BETWEEN: PETER CHIKOPELA AND PLAINTIFF ZAMBIA BATA SHOE COMPANY PLC DEFENDANT Before the Hon. Mr. Justice E. M. Sikazwe For the Plaintiff Mr. K. Wishimanga - Messrs A. M Wood and Company For the Defendant .. Mr. P. H Yangailo - Messrs P. H Yangailo and Company RULING -Rl- This was an )\ppeal against the Ruling of the Deputy Director dated 25th April 2014. I In the first place, the Court observes that this matter was commenced :on 12th September 2003 by Writ of Summons. The current Advocates for both the Appellant and the Respondents are not the one~ who started this case before his Lordship the now Acting Honourable Deputy Chief Justice, Justice M. S d . . Mwanamwambwa. On 12th May, 2004 the Deputy RegIstrar Issue Order for Directions. The case went on before the High Court with I some adjOur~ments made from both camps. Later on, thJ Court ordered on 10th March, 2011 that this case can be handled ~y a MEDIATORand it was sent for Mediation. The matter Las at Mediation up to 2 I" June, 201 I when it was sent back to High Court by Primary Mediator, Mr Thomas Martin M. Phiri. The reason given by the Mediator was that there was no appearance by the Plaintiff and Defendant and their Advocates. A Status Conference was arranged for 19th October, 2011 by the Court. This itime, the Appellant was in person and the Respondents were still 1th their Advocates Messrs Christopher Russell and Company. Finally the Status Conference was held by the Court on 15th February, 2012. I The APpellabt was represented by Messrs Pamat Legal Practioners and no attendance by the Respondent. The Respondents Advocates were given j, benefit of doubt for no attendance and the matter I I I I I . R2- adjourned to 24th May, 2012. Again on 28th May, 2012 there was a Notice that the Plaintiff had now appointed Messrs Charles Siamutwa Legal Practitioners and they requested for an adjournmen~ of the hearing of the matter. The matter \vas adjourned t~ 26th June, 2012. On this date there was no attendance by both parties. The Court struck off the matter from the active c!lUse list with liberty to apply for restoration within fourteen (14)1days from the date thereof in default of which it shall stand dismis1sedfor want of prosecution. The matter las quickly restored to active cause list on 23,d July, 2012 and 11ter adjourned to 5th September, 2012. On this day again there las no attendance from both sides. On 27th July, 2012, there was a~ain a change of Advocates by the Respondents to the Current Advocates Messrs P. H Yangailo and Company. The Applicant as still with Messrs Charles Saimutwa Legal practitionerJ and the matter was adjourned to 3,d October, 2012. The matter las again adjourned to 19th March, 2013 until it was heard by the Court on 5th June, 2013. Both Advocates were I present. T1e matter was again adjourned to 9th July, 2013. The Court then set 30th August, 2013 for Ruling. This Court's Ruling on I I page R5 in the last paragraph reads that: I "Affidavit evidence before me shows there was indeed an applic~tion to dismiss the action which was granted by the Le~rned Deputy Registrar on 29th August 2006. This eviden~e has not been challenged by the Plaintiff, despite the Court adjourning the matter on two occasions, at I Plaintiffs own instance, for the sole objective of allowing him bring evidence to counter the said allegation. In the premises, on the basis of available evidence, I find that this matter was dismissed by order of the Learned Deputy I I I Regist~ar dated 29'h August, 2006. The position of the Law i~that an order of dismissal of action for want of prosecLtion, which is not challenged by an application to I set aside the said order, is final. The effect of such an I order is that it brings litigation to an end. Consequently, I find that having been so dismissed, this matter was concluded by the order of dismissal which was not set aside ~nd is improperly before me." Not satisfied with this Ruling, the Appellent came back to Court I with new ank current Advocates Messrs A. MWood and Company to set aside thb Ruling of 29th August, 2006 by the Deputy Director and the Rul!ng of this Court of 30th September, 2013. This Court referred the rpPliCatiOn to set aside ruling of 29th August, 2006 to the Director Court Operations with liberty that any party dissatisfied ~ith the decision that will be rendered can then proceed by way of apbeal to this Court and this was on 7th February, 2014. The Deputy Registrar heard the appeal on 25th April, 2014 and declined stating that setting aside the dismissal of 29th August, 2006 will ~rejudice the Respondents greatly and appeal was granted. -R4- This is a brief background of now how this matter IS before this Court. The applicant put up five grounds namely that: " 1. The Honourable Deputy Registrar misdirected herself in law and in fact when she dismissed the aJplication to set aside the ruling dated 29'h August I I despite the Plaintiff giving unchallenged evidence that he was never served with the summons Ito dismiss action for want of prosecution and as sJch the said Order to dismiss his action was done . I h. b tn 15 a sence. 2.1 The Honourable Deputy Registrar misdirected h~rself in law and in fact when she dismissed the I PlaintifFs application to set aside Ruling dated I 29'h August despite the Plaintiff giving uhChallenged evidence that he took active steps to rJconstitute the Court after it was lost. 3] The Honourable Deputy Registrar misdirected hbrself in law and in fact when she held that an iJactive case for more than ten years should be in I the archives despite the Plaintiff showing that Icase record was lost. the 4) The Honourable Deputy Registrar misdirected hlrself in law and in fact when she dismissed the -RS- Plaintiffs application to set aside Ruling dated I 29th August 2006 despite the Defendant actually cJnceding that the case record was lost. s.! The Honourable Deputy Registrar misdirected h~rse1fin law and in fact when she held that setting a~ide the dismissal of 2006 would greatly prejudice I the Defendant when there was emdence on record . tAat the Defendant has a witness who is well versed I with the facts herein." I In arguing the appeal, the five grounds were presented. In the first ground it w~s submitted that the learned Deputy Registrar erred and misdirebted herself in dismissing the application to set aside the Ruling 'dated 29th August, 2006 despite the Plaintiff giving unchallengeb evidence that he was never served with the summons to dismiss lction for want of prosecution and as such the said Order to diskiss his action was done in his absence. In the secotd and fourth it was argued that the Learned Deputy Registrar misdirected herself in law and in fact when she dismissed the Plaintif~s application to set aside Ruling dated 29th August, I 2006 despite the Plaintiff giving unchallenged evidence that he took active steps ro reconstitute the Court record after it was lost. In reply, it las argued that the Plaintiffs evidence was challenged in the Rulin of Honourable Justice J. K Kabuka on what she stated that: -R6- "Affidavit evidence before me shows there was indeed an applic1tion to dismiss the action which was granted by the Le1rned Deputy Registrar on 29th August, 2006. This eviden~ehas not been challenged by the Plaintiff despite the cJurt adjourning the matter on two occasions, at I Plaintiff's own instance, for the sole objective of allowing I him bring evidence to counter the said allegation." On the question of reconstituting the file on his own, it was argued I the Plaintiff took more than seven (7) years from 29th August that 2006, whichl is he date that the Plaintiffs matter was dismissed for want of prJsecution. Thus it was urged that it amounted to inordinate d~lay by the Plaintiff. The Plaintiff further could not rely I on Order 3l(6) of the Supreme Court Rules (1999 Edition) as the application was not made timeously as so required by the same Order. It wls further noted by Honourable J. K Kabuka's Ruling of 30th September, 2013 where she stated that: I "In akdreSSing the reason I called for a Status I Conference, I observed that there appeared to be very little dffort being made to prosecute the matter." It was also argued in grounds three and five that the Honourable Deputy Reglstrar misdirected herself in law and in fact when she held that ad active case for more than ten years should be in the -R?- archives despite the Plaintiff showing that the case record was lost and that setting aside the dismissal of 2006 would greatly prejudice I the Defendlnt when there was evidence on record that the Defendant h1. Ba witness who is well versed with the facts herein. In reply it wL argued that the Honourable Deputy Registrar was on firm ground as it is trite that every matter must be prosecuted timeously tendered prosecute and I bY I the matter having considered the unchallenged evidence the Defendant showing that the Plaintiff failed to timeously. Lastly, it was argued that the Deputy Regiktrar was on firm ground when she stated that setting aside the dis~issal of 2006 would greatly prejudice the defendant. It was furthlr argued that the Honourable Deputy Registrar took into conside~ation the approach taken by Courts as set out by Lord Diplock in tJe case of Birkett v James AC at page 297. That also the Plaintiff took inexcusable delay in prosecuting his matter and such inexcusable delay would ordinarily prejudice the Defendant taking into ~onsideration that there has been a delay of almost eleven (11) )ears in prosecuting this matter which would prevent a fair trial as the Defendant will be prevented from being able to properly def nd itself because of the fading recollections of potential witnesses that it had lined up. Some of whom are untraceable as they are no lbnger employed by the Defendant. I have consi~ered the evidence on record, the three (3) Rulings and submissions by Counsel both in the Lower Court and this Court. It is not in dis ute that this matter started on 12th September, 2003 . •R8- As narrated in my opening remarks in this matter, it is clear that the Plaintiff has been in himself delaying this matter as he had engaged and disengaged various Advocates to attend to his matter. He had not been following the proper procedure in persecuting his I matter. He had been taking his own way of prosecuting this matter I disregarding the Court's procedure of even re constituting the file on his own for a long time after getting advise from officers of the Court who hkd nothing to do with this and not necessarily from the Court in ch~rge of the matter. In the process he even misdirected himself of in~tead taking the matter before the Court he was doing his way and on his own pace, in short directing the Court what to do. I agree with the Honourable Deputy Registrar. I would hold as did the Honourkble Deputy Registrar, that eleven (11) years is inordinate dJlay and one is not expected to just wait for an outcome without dili Iently perusing it. Matters which come before the Courts mus be prosecuted timeously. This has not been the case with this matter all because of the Plaintiff himself. Even when the Plaintiff tried to reconstitute the alleged missing file he left our I deliberately some vital information which were against him, obviously tlng to mislead the Court. All in all anti for the reasons I have given, I hereby dismiss this appeal. Each party ill therefore bear its own costs. -R9- • Appeal to Su reme Court is granted. Delivered in hambers this 14th day of October, 2015 at Lusaka. JUDGE -RIO-