Sepiso Simonda (suing as Administrator of the estate of The late Simonwa Simonda) v VDF Properties Management Limited and Ors (CAZ APPEAL NO. 40/2020) [2023] ZMCA 408 (15 March 2023)

IN THE COURT OF APPEAL OF ZAMBIA CAZ APPEAL NO. 40/2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: The late Simonwa Simonda) AND APPELLANT VDF PROPERTIES MANAGEMENT LIMITED 1 ST RESPONDENT ATTORNEY GENERAL 2ND RESPONDENT GOLDEN MANDANDI (Suing in his capacity as 3RD RESPONDENT Minister of Works and Supply) CORAM: KONDOLO, CHISHIMBA AND NGULUBE JJA On 16th June, 2021 and on 15t h March, 2023 For the Appellant : Mr. M. Kasaija of Messrs CL Mundia & Co For the 1s t Respondent : Mrs. D. Findlay of D. Findlay & Associates For the 2 nd Respondent : Mr. M. Lukwasa - Deputy Chief State Advocate JUDGMENT KONDOLO SC JA d elivered the Judgment of the Court. CASES REFERRED TO: 1. Zambia Revenue Authority v Jayesh Shah (2001) Z. R. 60 2. Hu Herong and Luo Feng v John Kapotwe and Kalwa Food Products Limited Appeal No. 65 of 2007 3. Zambia Seed Company Limi ted v West Co-op Haulage Limited and another (unreported) SC Appeal No. 112/2013 4. Kapoko v the People (2016/CC/0023) J2 of 16 5 . Access Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture (suing as a firm) SCZ/8/52/2014 6 . Mazembe Tractor Company Limited v Meridian BIAO Bank Limited (In Liquidation) SCZ/8/209/97 (unreported) 7 . Kambarange Kaunda v The People (1990-1992) Z. R. 215 8. Birkett v James [1977) 2 ALL ER 801 LEGISLATION REFERRED TO: 1. The Constitution of Zambia (Amendment) Act No. 2 of 2016. 1. INTRODUCTION 1. 1. This appeal is against a Rulin g delivered by N ewa J in which she dismissed the Appellant's case for want of prosecution. 1.2. The Matter was first commenced in 2000 and has, over the years, b een through the High Court, the Supreme Court and back to th e High Court. 2. BACKGROUND 2 . 1. On 8 th May, 2019, the Appellant and the 1st Respondent (Intervener in the Lower Court) implored the Court to issue orders for directions to p a ve way for an expeditious disposal of the matter. The Court granted the a pplication as prayed. 2.2. Orders for directions were issued in which the Appellant was r equired to amend the writ of summons and statement of claim to include the claim against th e Interven er by 17th May, J3 of 16 2019. Further, the Defendants and the Intervener were required to file their defence and counter-claim, if any and thereafter the Plaintiff was to file a reply and a defence to the counterclaim by 3rd June , 2019. 2.3 . Lastly , the Defendant and the Intervener were to file a reply to the defence and counterclaim and all this was to be done by 21 st June , 2019. The matter was supposed to come up on 9 th August, 2019 for a status conference. 2.4. Having failed to comply with the orders for directions, the Plaintiff was granted a 45-day extension within which to comply. Once again she failed to comply with the orders which prompted the Respondent to file an application to dismiss the matter for want of prosecution. 2 .5. The lower Court resolved to proceed with the application to dismiss the matter and delivered the Ruling subject of this appeal. 3 . HIGH COURT DECISION 3.1. The learned High Court Judge found that the Appellant had failed to comply with the orders for directions which are meant to be obeyed. That the existence of triable issues did J4 of 16 not provide a passport for parties to disobey the court's directives. 3.2. Counsel for the Appellant told the Court that the Plaintiff did not comply with the first directive in the orders for directions because h e had no claims against the Intervenor. The learned Judge acknowledged the submission but observed that the Plaintiff had n ot complied with any of the other orders to ensure that the matter was set down for trial. 3.3. She found that the delay in trying matters r esults in prejudice and that is why there is a statute of limitations. The trial Judge further stated that the Plaintiff had not advanced any reasons for the failure to comply despite having been granted an extension of time. 3.4. Lastly, the lower Court found that the Plaintiff h ad demonstrated that she was undesirous of prosecuting the matter and it was accordingly dismissed for want of prosecution. 4. THE APPEAL 4.1. Disgruntled by the decision of the learned High Court Judge, the Appellant h as assailed h er Ruling on three grounds, namely: JS of 16 1. That the Court below erred in law and in fact when it ruled that the Plaintiff had not advanced reasons for the default in complying with the Order for Directions, despite admitting that there were triable issues to be determined in this matter. 2. That after determining that there were triable issues to be determined in this matter, the Court below erred in law and in fact by not arriving at the conclusion that the Plaintiff had the right to be heard and ought to have been heard on the merits especially that the proposed Amendments to the Pleadings did not affect the Plaintiff's case in any way. 3. That the Court below erred in law and in fact when it brought out issues of prejudice when the same was neither pleaded nor particularized by the Parties, except for the prejudice that has already been occasioned by the general delay in the determination of this mater at no fault of the Plaintiff. 4.2. At the hearing, the Parties relied on the filed arguments which J6 of 16 have been summarized below. 5. APPELLANT'S ARGUMENTS 5.1. The Appellant argued grounds 1 and 2 together and conceded that it was originally intended that the pleadings be amended to include claims against the Intervener. However, after obtaining instructions and researching further into the law, the Appellant decided not to effect the requested amendments. In Counsel's estimation, the directive to include claims against the Intervener was not an unless order and the purported failure to include the claims did not affect the substantive standing of the matter before the Court as the matter remained valid without the said claims. 5.2 . The Appellant submitted that the mere fact that the Court found that there were triable issues to be determined, it ought to have arrived at the conclusion that the Appellant had the right to be heard and should have heard the Appellant on the merits especially that the proposed amendments to the pleadings did not affect the matter at all. 5.3. The cases of Zambia Revenue Authority v Jayesh Shah(1l and Hu Herong and Luo Feng v John Kapotwe and Kalwa J7 of 16 Food Products Limited (2) were cited to support the contention that matters must be decided on the merits and dismissal for want of prosecution should be done only in exceptional circumstances. 5.4. It was submitted that the 1st Respondent never demonstrated that there would be substantial risk of an unfair trial had the matter been allowed to be determined on the merits. 5.5. In ground 3, the Appellant argued that the lower Court brought out issues of prejudice which issues were neither pleaded nor particularized by the 1st Respondent. The only prejudice, as the Appellant saw it, was that occasioned by the general delay in the determination of the matter. In this regard, reliance was placed on Zambia Seed Company Limited v West Co-op Haulage Limited and another (unreported) (3) _ 5 .6 . That the Respondent did not demonstrate how it would be prejudiced and how the prejudice suffered could not have been atoned for by an award of costs. 5.7. The Appellant called to aid Article 118(2)(e) of the Constitution of Zambia and the case of Kapoko v the People !4 ) to show that procedures and laws must not be done JS of 16 away with even where they may constitute a techn icality. However, th e Article is intended to avoid a situation wh ere a manifest inju stice would be done by paying u njustifiable regard to a techn icality. 5.8. We were implored to reverse the fin dings of fact and law of the Cou rt below. 6. 1 sT RESPONDENT'S ARGUMENTS 6.1. The gravamen of the Respondent's argumen ts in ground 1 and 2 was that rules are supposed to be complied with and parties who fail to comply do so at their own peril. Cou nsel relied on the case of Access Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture (suing as a firm) (5) in which it was stated that courts cannot aid th e bending or circumventing of rules and shifting goal posts under the guise of doing justice th rough h earing matters on the merits because laxity in applying the rules may aid one side but unfairly harm the innocent party who strives to abide by th em. 6 .2 . It was in that regard submitted that the mere existence of triable issues does not justify or excuse non-compliance with J9 of 16 procedural rules and in this particular case non-compliance with a court order. 6 .3. The Respondent directed our minds to what they termed the Appellant's "mistaken impression" that complying with rules of Court was optional. In Respondent's view, the existence of triable issues does not absolve a litigant from complying with court orders. 6. 4. It was argued that the court has inherent jurisdiction to exercise its power to dismiss an action for want of prosecution. The case of Mazembe Tractor Company Limited v Meridian BIAO Bank Limited (In Liquidation) (6l was cited to emphasise the need to comply with orders for directions. 6.5. The Respondent's Counsel invited us to find that the lower Court exercised its discretion correctly. 6.6. In relation to the finding that the Appellant did not advance any reasons for the default, it was submitted that the affidavit filed in opposition to the application to dismiss the matter for want of prosecution (page 175-177 of the record of appeal) showed an explanation for the refusal to comply with the first part of the orders for directions but did not proffer any reason JlO of 16 for non-compliance with the rest of the directions. That the lower Court noted this failure and rightly found that the non compliance could not be condoned. 6.7. In ground 3, it was submitted that the learned Judge was right to state that the delay in trying the matter leads to prejudice. The case of Kambarange Kaunda v The People (7) was cited to demonstrate that an application to dismiss a claim for want of prosecution can be granted so as not to allow a dilatory plaintiff to proceed with their case and make it impossible for a defendant to have a fair trial. 6.8. It was pointed out that the lower Court did not take into consideration the second aspect relating to inordinate and inexcusable delay so as to consider the prejudice that could be occasioned to the Respondent. We were therefore urged to consider the delay attributable to the Appellant and the fact that after the Supreme Court Judgment in 2011, the Appellant took no steps to prosecute his case. 6.9. With regard to Article 118 (2) (e) of the Constitution of Zambia, it was submitted that the Appellant should not seek protection in it while failing to comply with procedural imperatives. It was submitted that compliance with orders Jll of 16 issued by the Court in its case management is not optional and must be obeyed like any other court order. 6.10. We were urged to dismiss the appeal with costs to the Respond en ts. 7. OUR DECISION 7 .1. After perusing the record of appeal, the arguments advanced by the parties as well as the impugned Ruling, it is our considered view that this appeal only raises one issue; whether or not the lower Court was on.firm ground when she dismissed the matter for want of prosecution. 7.2. The record shows that the Appellant filed a writ of summons and the attendant statement of claim on 25th February, 2000. The 1st and 2 nd Respondents filed a defence on 24th August, 2000. Thereafter, the matter dragged and various applications took it as far as the Supreme Court where it was finally remitted to the High Court for continued hearing. 7. 3 . We note that the learned High Court Judge issued orders for directions on 6 t h May , 2019 requiring the Appellant to amend the writ of summons and statement of claim to include claims against the Intervener (1 st Respondent herein) . Thereafter, the Defendants and the Intervener were to file a defence and J12 of 16 counterclaim, if any. Clause 8 of the orders gave liberty to any of parties to apply and the matter was slated for 9 th August, 2019 for a status conference. 7.4. It is also clear from the record that from 2011, the Appellant took no steps to prosecute the matter which next came up in 2018 before Musona J, who promptly dismissed the matter for want of prosecution but, in the same breath, ordered a status conference. 7.5. The matter was finally given a shot at restoration when Newa J issued orders for directions. Unfortunately, the Appellant was unable to comply with the orders and applied for an extension of time, which extension was graciously granted. 7 .6. The lower Court, on 14th June, 2019, granted a 45-day extension period to allow the Appellant's Counsel to obtain instructions from their client. Once again , the Appellant did not comply with the extension, which prompted the Intervener to file an application to dismiss the matter for want of prosecution. 7. 7. In her Ruling, the High Court Judge noted that the reason furnished by the Appellant for the default was that the Plaintiff had no claim against the Intervener. The learned J13 of 16 Judge went further to state that the Appellant had not complied with any of the orders to ensure that the matter was ready to be set down for trial. She also found that the presence of triable issues was not a passport for the Appellant to disobey directives. 7 .8. The record highlights the Appellant's nonchalant approach to the matter and we agree with the trial Judge that the presence of triable issues does not, in itself, assuage the Appellants failure to comply with Court orders. 7 .9. The case was slithering at a snail's pace and having decided that she had no claims against the Intervener, the Appellant ought to have informed the Court accordingly and applied to have the matter set down for trial. 7.10. The Appellant fell asleep in 2011 and only woke from her slumber in 2019 when the application to dismiss came up. Even after being given a further extension of 45 days, the Appellant did not seem eager to prosecute the matter. 7 .11. The law on dismissal for want of prosecution as cited holds true. In the case of Hu Herong and Luo Feng v John Kapotwe and Kalwa Food Products Limited (supra) the Supreme Court aptly set out the principles governing the Jl4 of 16 dismissal of matters for want of prosecution. It was stated that whilst Courts possess inherent jurisdiction to dismiss matters in this manner, they must do so in exceptional circumstances because matters must as much as possible be determined on the merits. It advised courts to apply the considerations set out in the case of Birkett v James (8l as follows: i) was the default intentional and contumelious ii) there has been inordinate and inexcusable delay on the part of the plaintiff or the lawyers; and that iii) such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues or is likely to cause or to have caused serious prejudice to the defendants as between them and the plaintiffs or between each other or between them and third parties. 7 .12. Looking at the sequence of even ts as outlined earlier in this judgment, it is evident that the delay in prosecuting this matter has been inordinate and inexcusable. This matter has dragged on for many years and even after the 2011 JlS of 16 Judgment rendered by the Supreme Court, the Appellant did not take any steps to prosecute the matter. 7 .13. The 1st Respondent stated that it would be prejudiced by the possible unavailability of witnesses on account of the delay. 7 .14. We have also looked at how long it has taken for the matter to even get to the stage at which orders for directions were made, namely 8 years. The passage of so much time, from 2011 to 2019, raises the possibility of substantial risk of an unfair trial on account of delay. 7 .15. The Appellant's argument that the matter should have been dealt with on the merits and the court was always at liberty to sanction the Appellant but not dismiss the matter, has no leg to stand on. We say so because in our view, this is one of those exceptional cases where a Court cannot be faulted for using its inherent jurisdiction to dismiss the matter as did the lower Court. 7.16. In the premises, we see no reason to fault the High Court Judge, and we find that she was on firm ground when she dismissed the matter for want of prosecution. Jl6 of 16 8. CONCLUSION • 8.1. The appeal 1s dismissed with costs to the 1st Respondent. ::-, ?.-............. ~ ................. . M. M. KONDOLO SC COURT OF APPEAL JUDGE ......................................... F. M. CHISHIMBA COURT OF APPEAL JUDGE ······~··············· P. C. M. NGULUBE COURT OF APPEAL JUDGE