Attorney General v Pythias Simukonda (Appeal No. 180/2023) (20 August 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No.180/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ATTORNEY GENERAL APPELLANT AND PYTHIAS SIMUKONDA RESPONDENT CORAM: Mchenga, DJP, Majula and Muzenga JJA On 12th August 2025 and 20th August 2025 For the Appellant: Mrs. L. I. Malao-Daka, Principal State Advocate & Ms. Mundia Mukelebai, State Advocate, Attorney General's Chambers For the Respondent: Absent JUDGMENT Muzenga, JA, delivered the Judgment of the Court Cases referred to: 1. Waterwells Limited v Wilson Samuel Jackson (1984) Z.R.98 (S.C). 2. Mwambazi v Morrester Farms Limited (1977) Z.R. 108. 3. Mahtani and Others v Attorney General and Others (2010) 3 ZR 377. 4. Premesh Bhai Megan Patel v Rephidim Institute Limited 5. Minister of Home Affairs, Attorney-General v. Lee Habasonda (2007) ZR 207 Other works referred to: 1. Zuckerman Adrian Zuckerman On Civil Procedure: Principles of Practice, 3rd edition, Sweet and Maxwell; London. J2 Statutes referred to: 1. State Proceedings Act, Chapter 71 of the Laws of Zambia 1.0. INTRODUCTION 1.1. This appeal is against Mwikisa, J's order entering judgement in default of defence and appearance against the appellant in the sum of ZMW 224,985.76, being underpayment on assessed benefits due to the estate of the late Borniface Simukonda. 2.0. BACKGROUND 2.1. On February 8, 2021, the respondent sued the appellant in the High Court as Administrator of the estate of the late Borniface Simukonda, claiming that the deceased, a retired Head Teacher at Shemu Primary School in Nakonde, was entitled to pension benefits under the Public Service Pension Fund scheme. 2.2. The appellant apparently did not fully discharge its responsibility and transmitted the file to the Public Service Pension Fund until sometime in 2019 which was nearly 24 years after the deceased's retirement in 1995. The respondent alleged that the appellant acted grossly negligently and without regard to the interest of the deceased whatsoever, with the particulars of the negligence being: i) Failure to process the requisite documents on the deceased's file promptly or within a reasonable time from 1995 when the deceased retired. J3 ii) Failure to transmit the file containing the requisite documents to the Public Service Pension Fund promptly or within a reasonable time after the deceased retired. iii) Failure to take internal corrective measures to avoid the inordinate delay in transmitting the file when the delay should have been apparent. 2.3. Due to the long passage of time, the Public Service Pension Fund assessed the pension benefits due to the estate at a paltry sum of ZMW7, 496.63 and refused to factor in inflation when calculating the said sum and only paid the said ZMW7, 496.63 on 7th April 2020. The respondent thus endorsed the statement of claim with the following reliefs: i) An order compelling the defendant to pay the sum of ZMW224, 985.76 being underpayment on assessed benefits due to the estate of late Borniface Simukonda at the current value; ii) Damages for negligence; iii) Special damages as pleaded; iv) Any other relief the court may deem fit; v) Interest. 2.4. The appellant neither entered appearance nor filed its defence prompting the respondent to seek an order granting leave to enter judgment in default of appearance and defence. On 29th June 2021, J4 the learned Justice E. P. Mwikisa entered judgment in default of appearance and defence against the appellant in the sum of ZMW224, 985. 76 being underpayment on assessed benefits due to the estate of the late Borniface at the current value together with interest and costs. 2.5. On 4th August 2021, the appellant applied to have the judgment in default set aside on the grounds that it had a defence on the merits and had given an explanation for the delay which application the learned trial court declined to grant. 3.0. THE APPEAL 3.1. Embittered with the decision of the learned trial court, the appellant launched this appeal advancing two grounds of appeal as follows: 1) The court below erred in fact and in law when it entered a judgment in default of appearance against the appellant without service of the application for leave to enter judgment in default of appearance. 2) The court below erred in law and in fact when it refused to grant the appellant's application to set aside the judgement in default of appearance without giving reasons for its refusal. 4.0.. APPELLANT'S HEADS OF ARGUMENT 4.1. In relation to ground one, learned counsel for the appellant referred the court to Section 22 of the State Proceedings Act and argued JS that the import of the provision is that judgment in default of appearance and defence shall not be entered against the state unless two conditions are met namely; that at least fourteen clear days' notice has been given to the Attorney General and if appearance and defence is not entered the second condition kicks in which is for the applicant to seek leave from the court to enter default judgment against the state. 4.2. It was argued that the record shows that the respondent served the appellant a notice of intention to enter default judgment against the state but was not served with the application for leave to enter judgment in default of appearance and defence nor was a date of hearing of the application served on the appellant thus denying it a chance to oppose the application and be heard on its merits. 4.3. It was contended in this regard that the requirements of Section 22 of the State Proceedings Act were not met and that the learned trial court's order should thus be quashed for being irregular. 4.4. In the alternative, the appellant argued that the matter be allowed to proceed to trial where triable issues exist and let it be heard on the merit. Reliance was places on the cases of Waterwells Limited v Wilson Samuel Jackson1 and Mwambazi v Morrester Farms Limited2 for this assertion. Counsel submitted that it is wrong to regard the explanation for the default instead of the arguable defence J6 as the primary consideration and the respondent will not suffer any prejudice by allowing the appellant to defend the claim. 4.5. In relation to ground two, we were referred to the case of Mahtani and Others v Attorney General and Others3 where the Court defined an order as follows: "An order contrasted with a judgment is a judicial or ministerial direction, command instruction or determination and generally embraced both final decrees and interlocutory directions or commands." 4.6. It was submitted that an order being a determination must embrace two parts being the reasons for the decision and the operative part which directs one or more parties to do something or refrain from doing something. It was argued that the learned trial court's order does not meet the standard of a court order and this court should frown upon such orders. 4.7. It was the appellant's contention that the court below was moved by summons, affidavit and skeleton arguments but the court did not pronounce itself on the legal issues raised in the form of a ruling. Counsel prayed that this court should therefore order that the application to set aside the judgment in default of appearance and defence be heard by the court below. 5.0. HEARING 5.1. At the hearing of this appeal, the learned counsel for the appellant informed the Court that the State would rely on the filed heads of argument. The respondent did not file any arguments, neither did he turn up at the hearing of the appeal. We allowed learned counsel for the State to proceed, after being satisfied that the respondent was served. 6.0. DECISION OF THE COURT 6.1. We have considered the grounds of appeal and the arguments advanced by the learned counsel for the State. 6.2. We shall consider the grievances in both grounds together as they are related. For the avoidance of doubt, Section 22 of the State Proceedings Act provides as follows: "In any proceedings against the state under this Act, Judgment shall not be entered against the State in default of appearance or pleading without the leave of the court to be obtained on application of which at least fourteen clear days' notice has been given to the Attorney General, or, if a legal practitioner in private practice is acting for the State in the proceedings to such leg a I practitioner." 6.3. Section 22 above, cast in mandatory terms sets a pre-condition to be satisfied before judgment in default of appearance or pleading can J8 be obtained against the State. It is thus clear that default judgment cannot be obtained without leave of court and further that the Attorney General or the State's legal representative is to be given at least fourteen clear days' notice of the application for leave to obtain default judgment against the State. 6.4. The appellant's argument is that it was neither served with an application for leave to enter judgment in default of appearance and defence nor the date of hearing of the application in total disregard of Section 22 of the State Proceedings Act and should have therefore been set aside. It is therefore clear that the trial Court erred in proceeding with the hearing and grant of the application for leave to enter judgment in default without satisfying itself that the Attorney General was served with the application in accordance with the mandates in Section 22 supra. 6.5. When it comes to setting aside judgments, the learned author of Zuckerman On Civil Procedure: Principles of Practice state at page 1047: "Although the generality of this proposition has been doubted, it remains the case that a party who has failed to attend is entitled to an opportunity to explain his absence so that he may show good reason for his absence". J9 6.6. In Premesh Bhai Megan Patel v. Rephidim Institute Limited4 the Supreme Court held that: "In dealing with an application to set aside a Default Judgment, the question is whether a defence on the merits has been raised or not, whether the applicant has given a reasonable explanation of his failure to file a defence within the stipulated time and that it is the disclosure of the defence on the merit which is the more important point to consider. 6.7. It is clear that what is of consideration in setting aside a default judgment is whether the applicant has a defence on the merits or given a reasonable explanation for the failure to file a defence within the stipulated time. 6.8. The appellant sought to have the default judgment set aside stating that it had given an explanation for the delay and shown a defence on the merits. We are not privy to the reasons that the appellant advanced for the delay as the affidavit in support of that application is not on the record of appeal. On hearing the application however, the learned trial court ordered as follows: "I refuse to grant the application but grant leave to appeal against my refusal." 6.9. The appellant is consequently disgruntled with the learned trial judge's refusal to set aside the judgment in default without giving reasons for the refusal. JlO 6.10. The requirements for a valid court decision were well stipulated by the Supreme Court in Minister of Home Affairs, Attorney General v. Lee Habasonda5 where it was stated that: "Every judgment must reveal a review of the evidence, where applicable, a summary of the arguments and submissions, if made, findings of fact, the reasoning of the court on the facts and the application of the law and authorities, if any, to the facts. Finally, a judgment must show the conclusion." 6.11. The learned trial judge's order is in essence a decision of the court which should satisfy the fundamental requirements of an appealable decision, specifically the "ratio deodendi'~ The lower court's decision lacked the necessary reasoning and clarity, making it difficult to decipher the basis for the decision. The principle as espoused time and again is that a judge should tower above the parties and their counsel by applying some level of judicial reasoned logic in evaluating a case. 6.12. We thus have no hesitation in stating that the default judgment was obtained in contumelious disregard of the pre-condition set in Section 22 of the State Proceedings Act and that the decision itself was devoid of a valid court decision; lacking judicial reasoning and logic. The default judgment was therefore irregularly obtained and liable to be set aside. Jll 6.13. In sum, we find merit in the appeal and accordingly set aside the judgment default. 7.0. CONCLUSION 7.1. Having found merit in both grounds of appeal, we quash the lower's Order and accordingly set aside the judgment in default of appearance and defence. 7.2. We consequently refer the matter back to the High Court for trial before another Judge, who shall issue directions to the parties. We make no order as to costs. ........... -- 4~ ......... ···~ ············· - ·~. .. ~·:~·~~ K. MUZENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE