Stephen Donald Corsie and Ors v Llewellyn (Appeal 34 of 2002) [2003] ZMSC 155 (2 September 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 34 OF 2002 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: STEPHEN DONALD CORSIE WALTER WAEHLING SAFETY DEVICE AND CONTROL LIMITED Ist APPELLANT 2nd APPELLANT 3rd APPELLANT AND GORDON THOMSON LLEWELLYN RESPONDENT CORAM: LEWANIKA, DCJ., CHIBESAKUNDA, MAMBILIMA, JJS On 4th June 2002 and 2nd September, 2003, For the Appellant: For the Respondent: W. M. FORREST of Forrest, Price & Co. No Appearance. LEWANIKA, DCJ., delivered the judgment of the Court. JUDGMENT At the hearing of this appeal, Counsel for the Respondent was not present and counsel for the Appellant stated that he was relying on the heads of argument and as counsel for the Respondent had already filed his heads of argument, we decided to hear the appeal. The Appeal arises from a Ruling by a Judge of the High Court restoring this action to the active cause list. The short history of this matter is as follows:- i The proceedings in this matter were instituted sometime in 1994. When the matter came up for trial on 25th June, 1997 the court was informed that the 1st and 2nd Appellants were dead and the matter was adjourned to enable the Respondent make an application to substitute the parties. When the matter came up on 28th July, 1998 none of the parties was present and it was struck off the cause list. On 23rd September, 1998 the Respondent applied to have the matter restored to the active cause list and the court made an order restoring it to the cause list for trial to a date to be communicated to the parties. The matter came up for trial on 26th April, 1999 and counsel for the Appellants informed the court once again that the 1st and 2nd Appellants were dead and that the 3rd Appellant had ceased trading and was defunct. Counsel for the Appellants invited counsel for the Respondent to apply to substitute the parties. Counsel for the Respondent applied to the court for an order that the Appellant's advocates supply them with the particulars of the executors. The court adjourned the matter sine die with liberty to restore to enable the Respondent’s advocates make the necessary application and ordered the Appellant's advocates to supply details of the executors within seven days. No further action was taken till 21st February, 2001 when the Respondent's advocates made an application to restore the matter to the active cause list, whose Ruling is the subject of this appeal. Counsel for the Appellants has filed five grounds of appeal namely:- 1. that the learned trial Judge misdirected himself in saying at the top of R7 of the said Ruling that he had taken into account the form of the alleged agreement which is the subject of the action and then in the penultimate paragraph by saying that the illegality of the agreement was a matter for determination at the trial. Patently, the learned trial Judge was influenced in his Ruling by the alleged contents of the agreement. that the learned trial Judge misdirected himself in failing to take proper notice of the fact that the 1st and 2nd Defendants are dead and their assets disposed of and that the 3rd Defendant has no assets and ceased trading some years ago. that the learned trial Judge failed to take proper account of the fact that the Plaintiff had been guilty of inexcusable and inordinate delay in prosecuting the action. The delay of two and a half years from July 1998 to the date of the application to restore was prejudicial to the Defendants in that they were not in a position to defend the action. that the learned trial Judge misdirected himself in failing to properly rule on the application by the Defendants to dismiss the action for want of prosecution. He also failed to give due effect to the claim that the action was based on the Plaintiffs own illegal conduct in that he allegedly paid the moneys concerned to the Chinese Embassy in London without the leave of the Minister of Finance as required by the law then in force. that the learned trial Judge misdirected himself in failing to find that the alleged debt had already been settled by the delivery to the Plaintiff by the Defendants of equipment and spares in excess of the Plaintiff's claim. 2. 3. 4. 5. In arguing the first ground of appeal counsel said that the contents of the Alleged agreement dated 21st December, 1991 should not have been taken into consideration by the Judge as the document had not been proved in evidence. And that the parties to the agreement, namely the two limited companies are not the same as the individuals. He said that the learned trial Judge predetermined the matter to the prejudice of the Appellants. As to the second ground of appeal, he said that there was prejudice caused by the delay of the Respondent in that in the two and a half year interim the 1st and 2nd Appellants died and the 3rd Appellant ceased trading and had no assets. As to the third ground, he said that there was inexcusable and inordinate delay on the part of the Respondent and referred us to Order 19/1/5 of the Rules of the Supreme Court. As to the fourth ground of appeal, counsel said that the illegality was based on the breach by the Respondent of the provisions of the now repealed Exchange Control Act. As to the fifth ground of appeal, counsel said that there was a defence of accord and satisfaction in that the delivery of one complete earth-moving machine and spares by the Appellants extinguished the alleged debt. In reply, counsel for the Respondent said that the action having been adjourned sine die with liberty to restore on 26th April, 1999 it was necessary for the Respondent to apply for its restoration before taking any further steps in the prosecution of the action, and that this was the application which came up before the learned trial Judge on 6 March, 2001. That as regards the contents of the agreement dated 21st December, 1991, it is apparent on the force of the record that the Appellants relied on the same and brought up the contents of the agreement in opposition to the application for restoration. He said that the learned trial Judge was therefore in order to refer to the argument in his Ruling. Further that the learned trial Judge did not predetermine the matter as he did indicate in his Ruling that: "it will be a matter of evidence at the hearing of the case as to whether the individuals entered into the agreement in their own capacities or on behalf of the two companies." He said that no prejudice could therefore be occasioned to the Appellants by reason of the reference to the said agreement. Further that the learned trial Judge rightly upheld the argument that in any event this amounted to a plea of misjoinder which in terms of Order 13 Rule 3 of the High Court Rules could not defeat the action. On the question of inordinate delay and prejudice, counsel conceded that that was a period of inaction between April, 1999 to 2001, but that the explanation given by the Respondent is contained in the affidavit dated 21st February, 2001 that during the period the Respondent had received indications from his previous advocates that the matter was receiving attention when not and that this prompted the change of advocates. He said that prior to that the Appellants had been ordered to supply details of the executors or personal representatives of the Appellants but they had not complied. On the question of illegality, he said that this amounts to a defence and must be pleaded as such. He said that the Appellants did nto plead illegality in their defences. On the question of accord and satisfaction, counsel said that this can only be ascertained on trial after evidence has been adduced as accord and satisfaction is a question of fact. He further said that this defence must also be pleaded and the Appellants have not done so. We are indebted to both counsel for the submissions which have been of great assistance to us in arriving at a decision. We have no difficulty in finding that the question of whether or not the 1st and 2nd Appellants signed the agreement in their individual capacities or as representatives of the 3rd Appellant could only be determined at the trial of this action. Similarly we have no difficulty in finding that the question of whether or not the agreement was unenforceable for illegality or whether there was accord and satisfaction could also only be determined at the trial of the action. The difficulty we have is that at the time when the learned trial Judge was hearing the application to restore by the Respondent, there was also before him an application by the Appellants to dismiss the action for irregularity and for want of prosecution. This matter was brought to the attention of the learned trial Judge by counsel for the Appellants when the parties appeared before him on 12th April, 2001 as evidenced on page 47 of the record. In his Ruling the learned trial Judge makes no reference to the Appellant's application but only dealt with the application to restore, ft had been brought to the learned trial Judge's attention that during the time when the Respondent was not prosecuting this claim both the Ist and 2nd Appellants had died and the 3rd Appellant which is the company that they were running ceased trading. From April 1999 to March 2001 the Respondent had not taken any action in these proceedings. The 1st and 2nd Appellants were not in a position to defend themselves having been deceased when the matter was restored to the cause list. It is well settled that there is an overriding discretion of the court to dismiss an action for want of prosecution where the Plaintiff has been guilty of inordinate and inexcusable delay to the prejudice of the Defendant. In our view this action should not have been restored to the list, but should have been dismissed for want of prosecution. For this reason, we allow the appeal with costs and dismiss this action, the costs are to be taxed in default of agreement. D. M. Lewanika DEPUTY CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE I. M. C. Mambilima SUPREME COURT JUDGE 7