Polythene Products (Z) Limited v Zimba & Another (Appeal 177 of 2015) [2018] ZMSC 40 (8 June 2018)

IN THE SUPREME COURT OF ZAMBIA _ HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL NO. 177 /2015 BETWEEN: POLYTHENE PRODUCTS (Z) LIMITED y APPELLA T AND PETER ZIMBA JOSHUA BANDA l ST RESPO NDENT 2 ND RESPONDENT CORAM: Hamaundu, Kaorna and Kabuka, JJS. On: 5th June, 20 18 and on 8 th June, 2018 . For th e Appellant: Mr. D. Libati of Abha Patel and Associates standing in for Mr. F Tern bo of Frank Tern bo and Partners. For the Respondents: N / A JU D GMENT KAOMA, JS , d elive red the Judgment of the Court. Cases referred to: 1. Workers Development Corporation v Davy Mkandawire - SCZ No. 19 of 1999 2 . National Tobacco Company Limited and Tobacco Board of Za mbia v Walter Harthoong - SCZ No. 43 of 1998 3. Gorinbhai Baghabai and Vallabhai Bagabhai Patel v Monile Holdings Company Limited (1993-1994) Z. R. 20 Statutes and other works referred to: 1. Subordinate Court Rules, Cap 28, Order 31 (4) 2 . The Legal Practitioners Act, Cap 30, section 51 3 . White Book 1999 edition, Order 5 6(2) J2 The responde nts are ex-employees o f th e appellant . They c ommenced this matter in the Subordinate Court of t h e first c lass for the Lusaka distric t by default writ of summons accompa nied by an affidavit in support. They claimed a sum of Kl3,284.00 representing housing a llowance and underpayment of lunch allowance . Se rvice of the court process was effe cted upon the a ppellant on 23rd August, 2013. The appellant r eacted by filing a n a ffidavit 1n opposition d eposed to by its p e r sonnel and a dministra tive officer, refuting the claims. The resp ond e nts filed a furt h er affidavit in which they disclosed the basis of their claims as the Minimum Wages and Employment Act , Chapter 276 of t h e Laws of Zambia. The appellant r esponded by filing an affidavit in reply. The matter first came up for h earing on 3rd October, 2013 but both parties were not present. It was a djourned to 3 1st Octob er, 2 013. The matter next came up on 16 th January, 2014. On t h at date , only the respondents were present. Upon b eing informed by the respondents that the appellant was aware of the date of hearing and had filed an affida vit in opposition, the court proceeded to h ear the respondents ' reply to the affidavit in opposition. Thereafter, the m atter was adjourned to 27thFebruary, 2014 for judgment . J3 In the m eantime , on 10th February, 2014 Frank Tembo and Partners filed an ex-parte summons to arrest judgment pending hearing of the appellant's defence pursuant to Order 35 Rule 2 of the Rules of the Supreme Court 1999. The affidavit in support revealed that the matter was scheduled for hearing on 6 th February, 2014 but it proceeded in January and the court adjourned it for judgment. The affidavit a lso disclosed that the failure to attend court was not deliberate but a mere miscommunication occasioned by the court registry staff; and that the appellant had a meritorious defence. The court was urged, in the interest of equity, to arrest delivery of judgment pending the h earing of the appellant's evidence so as to allow a logical conclusion of the matter. The application was made returna ble in chambers on 21 st March, 20 14. On 27th February, 2014, the date the judgment was supposed to be delivered, the matter was adjourned to 21 st March, 2014 for the appellant's application to arrest judgment. On the r eturn date, however , counsel for the appellant was not present. The court clerk informed the court that he had communicated to counsel. Despite the absence of an explanation for counsel's absence, the court adjourned the matter to 26th March, 2014 for the same application. J4 The matter came up next on 3 rd April, 2014. Counsel was not present. The court clerk informed the court that counsel had said he would come. The matter was adjourned for the last time to 10th April, 2014. On the return date, counsel was again absent prompting the court to dismiss the application to arrest judgment. In doing so, the trial magistrate condemned the failure by counsel to represent his client's interest by failing to appear 1n court, noting that it was the third time the matter was coming up without the appellant making appearance or filing a formal notice to adjourn despite communication with the company. The magistrate also observed that the subordinate court rules allows a court to dismiss an action where an applicant does not appear and that the applicant was not desirous to proceed with its application, which was even made under a wrong order, an act meant to mislead the court. The matter was adjourned to 14th April, 2014 for judgment although the judgment was delivered on 15th April, 2014, in favour of the respondents. The appellant appealed to the High Court on one ground only alleging that the court erred in law and fact by not allowing it to be heard in defence despite making several attempts to do so. JS The main argument m a d e by the appellant was that as a b ody corporate, it must b e r epresented in court by counsel; that the court did not a dvise it to instruct counsel; and the record d id not show that the court addressed its mind to t his principle. Further, that when the appellant instructed counsel, after the m atter was a djourned for judgment, and applied to arr est judgment, the court r efused and delivered its judgment. According to counsel, it was an error by the court to d eny the appellant chance to be heard especially that it h a d file d a d efe n ce which raised triable issu es. On the other hand , the respondents argued that the a ppella nt was aware of the proceedings in court but d ecid ed not to appear; that it was up to the appellant to instruct counsel in good tim e; and that th e court was on firm ground when it proceed ed to hear the case in the absence of Counsel for the appellant upon being satisfied that h e was aware of the h earing date . In resolving the k ey issue of whether the appellant was n ot allowed to defe nd its case, the learned High Court Judge , referred to the case of Workers Development Corporation (ZCTU) Limited v Davy Mkandawire 1 where this Court h eld th at a b ody corporate must be represented in civil litigation by a n a d vocate unless leave J6 has been previously obtained from the court in the exercise of its inherent power to regulate its own proceedings to be represented by a director or other senior person. The Judge observed from the record, that the matter came up three times without the appellant appearing; and that it was after the third successive failure by the appellant to appear that the court adjourned the matter for judgment and the appellant applied to arrest the judgment but the application was declined. The Judge was satisfied that the magistrate correctly applied the law as stated in Order 31(4) of the Subordinate Court Rules , Cap 28 of the Laws of Zambia which empowers the court to proceed to hear a matter where a defendant fails to appear or sufficiently excuse his absence, upon proof of service of the summons, and to give judgment on the evidence adduced by the plaintiff. As regards the appellant's argument that it was not advised of the need to engage counsel, the Judge correctly took the view that this was never brought to the court's attention before the matter was adjourned for judgment and agreed with the respondents that the fact that the appellant even engaged counsel showed that they were aware of the proceedings and the need to have counsel. J7 Furthermore, on the a ppellant's argument that the magistrate d id n ot address h e r mind to the fact that the a ppellant n eed ed to b e represe nted by counsel, and tha t she did not a dvise the appellant to en gage cou n sel, the Judge properly held that a m agistrate h as n o duty to advise parties in proceedings. The Judge dismissed the a ppeal with costs and granted leave to a ppeal. The appellant t h e n file d this a ppeal raising two grounds that: 1. The court below erred in law and in fact when it ruled that the magistrate has no duty to advise or inform the parties to the proceedings, in this case the appellant being a body corporate, of the legal requirements to be represented by counsel. 2 . The Court below erred both in law and fact when it dismisse d the appellant's appeal to be heard in its defence . We hasten to state that the memora ndum of a ppeal as framed includes argum ents , which is not a llowed by the rules of court. Ordinarily, we cou ld h ave declined to h ear the a ppeal. But s ince Mr. Te mbo was not present, as h e was reported to h ave been ber eaved , we decided to proceed on the basis of the filed h eads of argument. In ground 1, the core contention by the a ppellant is still that as a limited liability company it must appear and be represented in court by a dvocates a nd that in this case there is nothing on r ecord to s how that th e court ever a ddressed its mind to t his p rincip le. J8 It was submitte d that the court had a duty b e fore proceeding to h ear the matter to address its mind to the fact that the a ppellant ought to b e r epre sented; and that when the a ppellant instruc ted counsel, the court should have given it an opportunity to b e h eard since the judgment had not yet been delivered or written . As to grou nd 2, the contention wa s that this is simply th e appellant's cry to b e given an oppor tunity which it wa s denied by the court. The cases of National Tobacco Company Limited and Tobacco Board of Zambia v Walter Harthoong2 and Gorinbhai Baghabai and Vallabhai Bagabhai Patel v Monile Holdings Company Limited3 were cited, which emphasise the n eed for m atters to be dete rmined on merit whe re triable issues are raised. We have consid er ed the record of appeal and the arguments by the appellant. In r espect of ground 1, the case of Workers Development Corporation (ZCTU) Limited v Davy Mkandawire 1 which we have quoted above is very clear that a body corporate must b e represented in civil litigation by an a dvoca te unless leave has been previously obtained from the court in the exercise of its inher ent power to regulate its own proceedings to be represented by a director or other s e nior p erson. J9 In that case, we drew attention of the appellant to the pruvisions of section 51 of The Legal Practitioners Act, Cap 30 of the Laws of Zambia and Order 5 6(2) of the White Book. We take this opportunity to urge counsel and all litigants, to be conversant with provisions of the law; ignorance of the law is not a defence. We agree with the appellant that the record does not show that the magistrate a ddressed her mind to the legal requirement that a body corporate must be represented in civil litigation by an advocate. However, we cannot fault the learned Judge for holding that a magistrate has no duty to advise parties to proceedings. Certainly, there is no law that places such a duty on the court. In any case, the record shows that the appellant never appeared before the subordinate court. Even if the magistrate were, out of sympath y rather than duty, to advise that there was need for the appellant to engage counsel, we do not appreciate how that was going to be done. Ground 1 must fail for lack of m erit. Coming to ground 2 , the record shows that after counsel for the appellant applied to arrest delivery of the judgment, the appellant was given chance on three occasions, to make its no a pplication. However, counsel for the appellant never appeared before the court or excu sed his a bsence. As the tria l m agistrate r ightly said, the app ellant was simply not d esirous to prosecute its a pplication. The r efore, the learned Judge cann o t b e faulted for dismissing an a ppeal that was doomed to fail. Ground 2 must equa lly fail. In all, the appeal is dis missed. Since the respondents did not appear, we make no order as to costs. l !£.---' 2~ E . M. HAMAUNDU SUPREME COURT JUDGE ._- c -b::::t '---- R. M. C. ~OMA SUPREME COURT JUDGE c:-= - ~ - .. J. K. KABUKA SUPREME COURT JUDGE