ROAD DEVELOPMENT AGENCY V JAMES MUZYAMBA (CAZ APPEAL No. 65 OF 2019) [2019] ZMCA 317 (21 August 2019)

IN THE COURT OF APPEAL HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: (cid:9) ROAD DEVELOPMENT AGENCY (cid:9) AND CAZ APPEAL No. 65 OF 2019 , F • • (cid:9) L' APPELLANT JAMES MUZYAMBA (cid:9) . (cid:9) RESPONDENT CORAM: KONDOLO SC, MAKUNGU, CHISHIMBAJJA On 21ST August, 2019 and 28TH August, 2019 For the Appellant (cid:9) For the Respondent (cid:9) : Ms. M. Mukuka of Messrs Ellis & Co. : Mr. J. C. Mukende of Messrs Kabesha and Company JUDGMENT KONDOLO SC, JA delivered the Judgment CASES REFERRED TO: 1. Elias Tembo v Henry Sichembe and 2 Others Appeal No. 177 of 2014 2. Water Wells Limited V Wilson Samuel Jackson (1984) Z. R. 98 3. Stanley Mwambazi V Morester Farms Limited (1977) Z. R. 108 4. Rosemary Bwalya v ZANACO Appeal No. 133 of 2005 (SC) LEGISLATION REFERRED TO: 1. The High Court Act, Chapter 27, Laws of Zambia This Appeal is against the High Court's refusal to set aside a Default Judgment. Prior to the hearing, the learned Musona J had been transferred to Lusaka and was meant to travel back to Ndola to conclude the matter. When the matter came up for continued hearing on 23rd February, 2018, the learned Judge (cid:9) J2 of as well as Counsel for the Respondent, travelled to Ndola but Counsel for the Appellant who had filed a Notice to Adjourn two days prior to the scheduled hearing date was not in attendance. Unfortunately, neither the Court nor the Respondent were notified of the Notice and only became aware it on the date of hearing. The reasons advanced by the Appellant's Counsel for filing the notice, as contained in the Affidavit in support, were that Counsel with conduct of the matter, was appearing before Mwenda J in the Commercial Division on the same date. The learned Musona J was not impressed with Counsel's conduct and in refusing to accept the Notice, stated that the mere filing in of a Notice to Adjourn did not automatically adjourn a matter and, it was thus incumbent on Counsel to present the application before the Court and leave it to the Court to consider and decide whether or not to grant an adjournment. The Court also commented on the fact that the Appellant had over 2 months' notice of the hearing date and the affidavit in support did not exhibit any proof that the matter before Mwenda J had indeed been scheduled earlier than that before him. For these reasons, Musona J took great exception of the Appellant's absence and decided to proceed without hearing them, set a date for Judgment and, albeit, there being an incomplete Defence, proceeded to pass Judgment. Upon being aware that Judgment had been passed in its absence, the Appellant invoked Order XXXV Rule (3) (5) High Court Rules and applied to J3 of have the Judgment set aside on the grounds that it was not heard. The Court rejected the application saying that a Notice to adjourn was no guarantee that the Court would adjourn. It was simply a Notice that the applicant would be applying for an adjournment when the matter comes up; the Appellant should have sent an agent. The Court further held that, even though the Applicant's Counsel stated that she was appearing before another Court, no proof of that was shown i.e. no copy of a Notice of hearing was attached and therefore no proof that the case before Mwcnda J was adjourned to that date earlier than the subject case, for it to be given preference. The Appellant has assailed the Ruling on three (3) Grounds of Appeal, namely: 1. The learned trial Judge erred in law and in fact when he held that no good cause existed for him to set aside Judgment; 2. The learned trial Judge misdirected himself when he failed to consider the reasons put forward by the Appellant's Advocates for their failure to appear before the High Court, prepared to proceed with trial on 23rd February, 2018 in the event that an adjournment was refused. 3. The learned trial Judge misdirected himself when he ignored the long-established principle of the need for matters to be resolved on the merits despite the default of the parties. J4 of At the hearing, both Counsel relied on their filed Heads of Argument. In support of the Appeal, it was submitted that the trial Judge ought to have upheld the principal that matters should be heard on their merits. The case of Elias Tembo v Henry Sichembe and 2 Others (1) was called to aid. In that case, the Supreme Court upheld the principles in Water Wells v Jackson (2) and Mwambazi v Morester Farms (3) and stated that failure to attend Court should result in condemnation in costs. Further in Rosemary Bwalya v ZANACO (4) the Supreme Court stressed the need for cases to come to trial wherever possible despite the default of the Parties so that all issues are conclusively resolved. We were urged to set aside the Judgment. In responding to the arguments, Counsel for the Appellant, argued that the trial Judge was clothed with the power to proceed as he did under Order XXXV Rule 1 and 3 of the High Court Rules. The learned trial Judge rightly exercised his discretion and his refusal was justified because he was not satisfied with the reasons given for Counsel's absence. Under ground 2, it was argued that the lower Court carefully considered the application and this can be seen from his Ruling wherein he categorically stated the reason for the refusal. In ground 3 it was submitted that the Court did not ignore the principles of resolving matters on merit because the Record will show that it took into account the Appellant's evidence, notwithstanding it being incomplete. Citing the case of Elias Tembo v Henry Sichembe and 2 Others (1), Counsel argued that the Supreme Court stated that such Judgments obtained in the absence of the parties may be set J5 of aside which meant that it was a duty of the Court to exercise discretion upon a satisfactory excuse for the absence. We were begged to dismiss the appeal and, in the alternative, urged to condemn the Appellant in costs to be paid forthwith, should we allow the Appeal. In reply, the Appellant re-emphasized its arguments stressing the fact that it was not heard and as such this Court must set aside the Judgment. In relation to costs, it was submitted that each party bears its own costs as the Respondent failed to disclose any circumstances taking the case outside the two cases of Rosemary v ZANACO (4) and Elias Tembo v Henry Sichembe and 2 Others (1) in which the Court, after holding that matters be heard on merit, ordered each party to bear their costs. We have considered the Record of Appeal and submissions of both Parties. The 3 grounds advanced boil down to only one issue; Whether or not the Court erred when it refused to set aside the Judgment obtained in the absence of the Appellant. We are alive to the authorities that matters must be heard on their merits and in fact the case of Elias Tembo v Henry Sichembe and 2 Others (1) dealt with the absence of the Appellant at hearings. The Supreme Court in that case found that even though the trial Court was not satisfied with the excuse given for the Appellant's absence, the failure should only have resulted in condemnation in costs, especially that there had not been a lot of adjournments by the Appellant. Reverting to the facts at hand, in our view, the trial Court cannot be faulted for his sentiments. Indeed, a Notice to adjourn is not an automatic adjournment but only a notification to the Court that on the day that the matter was scheduled to come up, an application for an adjournment will be made. In this case, Counsel stated that she was before another High Court Judge therefore she was not expected to attend to the hearing of the application, notwithstanding that another Counsel would have taken over the brief for purposes only of making the application to adjourn. If said application was denied, an appropriate application would have been made before the Court. The Court and the Respondent's Counsel travelled to Ndola from Lusaka to attend the hearing. Had the Notice been brought to the Court's attention earlier, the Court would not have moved. Further, the Court cannot be faulted for being dissatisfied with the reason given, i.e. attendance before a commercial division Judge. It is a fact that there was no notice of hearing, on record, issued by the other Judge. In the absence of any other evidence to satisfy the learned Judge, he denied the application for an adjournment. We certainly agree with his sentiments. However, given the fact that the Respondent had already launched its defence by calling a witness, the Court ought to have taken that fact into consideration J7 of and ensured that it concluded the trial. The Record shows that this was the first time, during the trial, that the Appellant was absent and for that reason, the Appellant at the least, ought to have been given the benefit of doubt. We therefore find that the lower Court erred. The Judgment is hereby set aside and the matter sent back to the trial Judge for continuation of trial. In line with the cited authorities, we make no order as to costs. The Appeal is dismissed. M. M. KONDOLO, Sc COURT OF APPEAL JUDGE C. K. MAKUNGU COURT OF APPEAL JUDGE F. M. CHISHIMBA COURT OF APPEAL JUDGE