MECKIE S MWAMUCHENA V NEW POWER INDUSTRIES LIMITED (APPEAL NO. 156 OF 2020) [2022] ZMCA 166 (1 June 2022)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 156 OF 2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: AND NEW POWER INDUSTRIES LIMITED RESPONDENT CORAM: Chashi, Ngulube and Sharpe-Phiri, JJA ON: 19th April and 1st June 2022 For the Appellant: J. Zulu, Messrs Japhet Zulu Advocates For the Respondent: N/ A JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. Marcus Kapumba Achiume v The Attorney General (1983) ZR,1 2. Natural Valley Limited v Brick and Tile Manufacturing Limited and The Attorney General - SCZ Selected Judgment No. 32 of 2018 -J 2- 3. Gaedonic Automotives Limited and Another v Citizen Economic Empowerment Commission - SCZ Judgment No. 39 of 2014 Rules referred to: 1. The Supreme Court Practice (White Book) 1999 1.0 INTRODUCTION 1.1 This appeal emanates from the Judgment of Honourable Mrs Justice A. M Banda-Bobo, High Cou rt J u dge as she then was, in which she dismissed the Appellant's application on a point of law, made pursuant to Order 14A of The Rules of the Supreme Court1 (RSC) , on account of there b eing nothing t o stay. 2 .0 BACKGROUND 2. 1 The brief background to this matter is that, the Appellant purpor ted to sell to the Respondent a h ouse in Roma, Lusaka. After paying a deposit of Kl ,250 ,000.00, the Respondent discovered that the house belonged to a bank and not the Appellant. The Appellant was arrested with others by th e police and ch arged with the offence of fraud. Consequently, the police seized an excavator and a house -J 3- in Chongwe which were allegedly bou ght from the money paid by the Respondent. 2.2 In an attempt to recover the m oney, the Respondent commenced proceedings in the High Court by way of writ of summons, claiming th e following reliefs: (i) A refund of Kl,250,000.00 (ii) A declaration that all the property seized by the police be handed over to the Respondent (iii) An order for attachment of property to the proceedings owned by the Appellant pending the final Judgment (iv) Damages and interest 2.3 Consequently by an Order of the court, the excavator and the house in Chongwe were attached to the cause. Th e Respondent thereafter obtained a default Judgment which was never set aside. The attached properties were eventually sold by the Sheriff of Zambia. 2.4 It was only after the sale that the Appellant obtained an ex parte Order for stay of the default Judgment before the District Registrar. The District Registrar later discharged -J 4- the stay. Subsequently, the District Registrar granted an Order for stay of sale of the properties, pending an application for leave to appeal to a Judge of the High Court. The District Registrar upon refusing the application for leave to appeal, also discharged the Order for stay of sale of the properties. 2 .5 The Appellant then renewed the application for stay of sale of properties before the Judge of the High Court. In response to the application, the Respondent raised preliminary issues under order 14A RSC, asking the court to dismiss the matter on account of it being res judicata, as the Judgment had already been executed and there was nothing to stay. 2.6 After considering the preliminary issue, the learned Judge found that the principle of res judicata was not applicable . She however in relation to the contention that there was nothing to stay, had this to say: "I therefore find that this matter has come to finality as the Judgment that was delivered has already been executed and that there is nothing -J 5- to stay. It is my holding that this matter be dismissed and be disposed of as it has come to finality and that any further step will be an academic exercise. The Applicants preliminary issue succeeds with costs." 3 .0 THE APPEAL 3.1 Disenchanted with the Judgment, the Appellant has appealed to this Court advancing six grounds of app eal, namely: (i) The learned trial court erred both in law and fact when it held that the matter be dismissed and disposed of as it had come to its finality and that any further steps will be an academic exercise despite the dispute between the parties having not been heard and determined on its merits. (ii) The learned trial Judge erred both in law and fact when it held that the Judgment that was delivered had already been executed and that there was nothing to stay despite -J 6- exhibit MTM4 as read with exhibit MTM6 clearly showing that the said Judgment had not been fully executed and was therefore still open to further execution (iii) The learned trial Judge erred in law and fact when it held that the Respondent had taken possession of the Appellants property despite there being no writ of possession on record. ( iv) The learned trial Judge erred both in law and fact when it proceeded to dismiss the matter pursuant to Order 14A of the Rules of the Supreme Court of England despite such dismissal not fully determining the entire cause or matter or claims or issues "therein in light of the lingering issues on record as raised in the Appellant's Notice of Appeal and Memorandum of Appeal to the Judge in chambers dated the 8 th November 2018 and 13th December 2018 respectively -J 7- (v) The learned trial court misdirected itself both in law and fact when it entertained and determined the plaintiffs own application to dismiss its own matter on a point of law thereby nullifying the whole proceeding without ordering the plaintiff to equally return goods seized from the 1st defendant or to compensate the 1st defendant in light of the dismissal of the plaintiff's action on which the said execution was based. (vi) The learned trial court erred in law and fact when it entertained the plaintiffs action to dismiss its own action purportedly pursuant to Order 14A of the Rules of the Supreme Court of England (1999 edition) when no such procedure or jurisdiction is provided for under the said provision 4.0 ARGUMENTS IN SUPPORT OF THE APPEAL 4.1 Mr. Zulu, Counsel for the Appellant argued grounds one, two and four together and submitted that the court below -J 8- erred in dismissing and deposing of the matter on a point of law. Our attention was drawn to Order 14A RSC as to what it provides. We note that the Appellant then proceeded to address us on the issue of res judicata, which was not part of the three grounds of appeal. We find this unnecessary, especially in view of the fact that the learned Judge found that it was not applicable to the matter. We shall therefore not address the issue. 4.2 According to Counsel, after determining that there was no res judicata the court· below surprisingly went on to misdirect itself by still proceeding to dispose of the matter. Counsel referred us to the case of Marcus Kapumba Achiume v The Attorney General1 where the Supreme Court held that: "The appeal court will not reverse findings of fact made by a trial Judge unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which on a proper view of the -J 9 - evidence, no trial court acting correctly can reasonably make." 4.3 It was Counsel's contention that the court below erred in fact when it found that the matter has come to finality as the Judgment had already been executed and as such there was nothing to stay. According to the Appellant, issues relating to issuance of writ of possession are still pending. Further that the Respondent also attempted to file a writ of fieri facias in execution, which has only been stayed by the court pending the appeal. That therefore the finding by the lower court flies in the teeth of the evidence on record. Counsel urged us to interfere with the finding and reverse it. 4.4 In arguing the third ground, Counsel cited the case of Natural Valley Limited v Brick and Tile Manufacturing Limited and The Attorney General2 and submitted that, the Judgment in default granted the remedy of a declaration which should not have been allowed. 4.5 Our attention was also drawn to Order 45/3 (1) RSC and submitted that there is neither an application for leave to -J 10- issue a writ of possession or writ of possession on the record and the ref ore taking possession of the house by the Respondent was an illegality as it was outside the provisions of the law. 4.6 It was further argued that there was no writ of delivery pertaining to the excavator and as such the taking of the same was an illegality and outside the provisions of order 45 / 4 ( 1) RSC. It was submitted that illegal possession is no possession that a court can rely on in holding that execution had already taken place. 4. 7 Grounds five and six were argued together and submitted that the dismissal of the matter by the court below on the Respondent's own application leads to an absurdity and serves to nullify the Respondent's action. Our attention was drawn to the case of Gaedonic Automotives Limited and Another v Citizen Economic Empowerment Commission3 where the Supreme Court held that "our Understanding of dismissal under the 60 days rule is that it means nothing else can be done under that cause." -J 11- According to Counsel, in the same vein, a dismissal under Order 14 A RSC means that nothing else could be done. 4.8 We were urged to allow the appeal with costs and remit the matter back to the High Court, so that the matter can be heard and determined on its merits. 5 .0 THE RESPONDENTS ARGUMENTS 5.1 The Respondent did not file arguments in response. We were informed by C. K Puta (Ms) , Counsel from Messrs Robson Malipenga, that they were no longer acting for the Respondent as there was a notice of change of advocates, which was filed by Messrs KBF & Partners on 15th May 5.2 We noted that despite having been served with the record of appeal and Appellant's heads of argument on 25 th August 2 020, the Respondent had not taken any step in responding. It was in view of the Respondent's default to the rules of this Court, without any plausible explanation being offered, that we decided to proceed with the hearing and determination of the appeal. -J 12- 6.0 OUR ANALYSIS AND DECISION 6.1 We have considered the Appellants arguments and the Judgment being impugned. We will determine grounds one, two, four , five and six together as they are related. The Appellant is attacking the learned Judge's finding that the matter had come to finality as the default Judgment had already been executed and therefore there was nothing to stay and thereby dismissing the entire matter. 6.2 We note that the application which was before the learned Judge when the preliminary issue was raised, was a renewed application for stay of sale of the properties. It is not in dispute that the excavator and the house were already sold at the time the Appellant made an application for stay of sale of the properties before the District Registrar as earlier alluded to. In that vein, we find no basis on which to fault the learned Judge for her finding of fact that there was nothing to stay. 6.3 However, we are of the view that the learned Judge should have ended at dismissing the renewed application on account of there being nothing to stay as the properties -J 13- had already been sold. The learned Judge should not have gone further to dismiss the entire cause, especially in view of the fact that the application to set aside the default Judgment was still pending. In the view that we have taken, the portion of the Judgment dismissing the entire cause is accordingly set aside. 6.4 The third ground is questioning the mode of execution in the selling of the excavator and the house; as the Appellant is alleging that there was neither an application for leave to issue a writ of possession nor the writ of possession on the record. That therefore the taking of possession was illegal as it was outside the provisions of the law. 6. 5 In our view, this was not an issue for determination before the learned Judge. This issue is ingeniously being brought up by the Appellant now. In the view that we have taken, the third ground has no merit and is accordingly dismissed. 7.0 CONCLUSION 7. 1 The sum total is that, the appeal partially succeeds and the matter is remitted back to the High Court before • -J 14- in th e cou rt below. J . CH SHI COURT OF APPEAL JUDGE Fil-Lk') ~~-~-~ P. C. M. NGULUBE ~ARPE -PH I COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE