Queens Cash Finance Limited v Krestah Hanongo Muchindu Kanene (Application/64/2024) (27 February 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Application/64/2024 HOLDEN AT NDOLA (APPEAL NO. 145/2022) (Civil Jurisdiction) BETWEEN: PELLANT AND KRESTAH HANONGO MUCHINDU KANENE RESPONDENT CORAM: KONDOLOSC, MAJULA, MUZENGAJJA on: 2QTH and 27th February, 2025 For the Appellant: Mr. E. Lukanga of Messrs KBF and Partners For the Respondent: Not in attendance RULING KONDOLO SC JA, delivered the Ruling of the Court. CASES REFERRED TO: 1. Zlatan Zlatko Arnautovic v Stanbic Bank Zambia Limited CAZ/ 130/2018. 2. Zambia Revenue Authority v Jayesh Shah [2001] ZR 63 3. New Plast Industries v The Commissioner of Lands and the Attorney General SCZ/8/2001 4. Mwambazi v Morester Farms Limited (4) (1977) ZR, 108 R 2 of 10 LEGISLATION REFERRED TO: 1. Constitution of Zambia, Chapter 1, Laws of Zambia 2. Court of Appeal Rules, Statutory Instrument No. 65 of 2016, Laws of Zambia 3. The Supreme Court Rules (Whitebook) 1999 Edition (RSC) 1.0 INTRODUCTION 1.1 This is the Respondents application made pursuant to Order 10 Rule 19 (2) of the Court of Appeal Rules, Statutory Instrument No. 65 of 2016 (CAR) to set aside this Court's st judgement dated 21 June 2024 on the following grounds; 1. The Respondent was not aware of the date set for hearing of the appeal as no notice of hearing was served on him either in person or on his advocate. 2. The Respondents Heads of Argument which were st duly filed before this Honorable Court and dated 31 August, 2022 were not considered when the appeal was heard as the same were somehow not on the record then; 3. The subject judgement indicates that the Appellant was likewise not in attendance and did not file any notice of non-appearance together with written arguments and as such both parties having not been heard, the said judgement dated 21st June, 2024 is not a judgement on the merits; and R 3 of 10 4. The Respondent has a meritorious case and if heard is likely to succeed with the appeal being dismissed as illustrated in the affidavit in support filed herewith. 1.2 Applicants (Respondent) Case 1.3 The application was supported by an affidavit in which it was attested inter alia that; i. the notice of appeal and memorandum of appeal were served on the Appellants advocates on 20th May, 2022. That the record of appeal was filed on 11th July, 2022 and the heads of argument on the August 2022. 8 th ii. the Respondent filed his heads of argument on 31st August, 2022 and served on the Appellant on 22nd September, 2022 and an affidavit of service was filed to that effect. The said heads of argument and affidavit of service are exhibited in the affidavit in support. the judgement sought to be set aside indicated that 111. the Respondent had not filed his heads of argument and for that reason only the Appellants heads of argument were considered in arriving at the judgment. iv. a perusal of the Respondents heads of argument exhibited in the affidavit shows that the Appellant R 4 of 10 had advanced compelling arguments which could have changed the outcome of the judgement. v. The judgement be set aside in the interests of justice as the Appellant would not be prejudiced. 1.4 The Respondent filed skeleton arguments submitting that order 10 Rule (2) CAR and Order 59/ 1/ 151 The Supreme Court Rules (Whitebook) 1999 Edition (RSC) empower this Court to set aside a judgement obtained in the absence of the parties. On this point, reference was made to the case of Zlatan Zlatko Arnautovic v Stanbic Bank Zambia Ltd '11 . 1.5 The essence of the Respondents further submissions was that according to Order 10 Rule 19 as read with Order 13 Rule 4 CAR, where an Appellant has not filed a notice of non attendance and does not appear at the hearing, the appeal ought to be adjourned, to give both parties an opportunity to be heard or dismissed or struck-out for non-attendance. 1.6 It was pointed out that in casu neither party filed a notice of non-attendance and both parties were absent at the hearing, meaning that the appeal should have been adjourned, dismissed or struck-out. R 5 of 10 1.7 The Respondent emphasized that he was not aware of the hearing date. 1.8 The Respondent cited numerous cases on the principle that matters must as far as possible be decided judiciously by being heard on the merits, by allowing both parties to be heard. He inter alia cited the case of Zambia Revenue Authority v Jayesh Shah (2 l and Article 18 (9) and 118 (2) (e) of the Constitution. 1. 9 The Respondent prayed that the application be allowed. 2.0 Respondents (Appellant) Case 2.1 The Appellant did not file an affidavit in opposition 3.0 HEARING 3.1 At the hearing, Mr. Lukanga on behalf of the Respondent informed us that he had been in contact with Ms. Chishimba counsel for the Appellant who had informed him that the Appellant had not filed an affidavit in opposition and would not be attending the hearing. 3. 2 We allowed Mr. Lukanga to proceed and he basically reiterated the contents of the Appellants affidavit and R 6 of 10 skeleton arguments. He prayed that the application be allowed. 4.0 DECISION 4.1 We have considered the motion, the affidavit in support and the arguments advanced by the Respondent and shall proceed by firstly addressing ground 1, followed by ground 3 and finally grounds 2 and 4 which shall be considered together. 4.2 Ground 1 4.3 Ground 1 is relation to the assertion that the Respondent was not aware of the hearing date. 4.4 At the hearing we provided Mr. Lukanga with a copy of our register where parties to appeals acknowledge receipt of notices of hearing. The register showed that the Respondent had signed the register and was therefore aware of the hearing date. This ground therefore has no merit. 4.5 Ground 3 4.6 Ground 3 is in relation to the Appellant not having been in attendance at the hearing and not having filed a notice of non-attendance. R 7 of 10 4.7 According to the Respondent where the Appellant has not filed a notice of non-attendance and does not appear at the hearing, this Court is limited to adjourning, dismissing or striking-out the matter for non-attendance. 4.8 The Respondent quietly insinuated that that despite filing the record of appeal and heads of arguments as prescribed by the rules, where the Appellant has not filed a notice of non-attendance and does not appear at the hearing, this Court has no power to proceed and consider an appeal on the merits. His conclusion is based on the provisions of Order 10 Rule 19 as read with Order 13 Rule (3) CAR. 4. 9 We would like to correct the foregoing impression by pointing out that the cited orders do not employ mandatory words such as "shall", "should", "will", "must" etc. but use the word "may". 4.10 Use of the word "may" implies that the Court has power to exercise its discretion in that regard. Litigation is court driven and Courts have inherent jurisdiction and wide discretion, without breaching mandatory rules of procedure, to direct the course of proceedings before it. R 8 of 10 4.11 In the event of the absence of a party, where that party has filed arguments in the prescribed manner and within the prescribed time frame it has been the practice of this Court to consider such arguments when determining the appeal. 4.12 It is well established that being heard is not limited to actually appearing before Court and speaking. In appeals, parties are primarily heard through their heads of argument. During the proceedings parties merely augment and emphasize the points set out in their filed heads of argument. In New Plast Industries v The Commissioner of Lands and the Attorney General t3 l the Supreme Court held as follows; ((Where the evidence in support of an application is by way of affidavit, a deponent cannot be heard to say that he was denied the right to a hearing simply because he did not adduce oral evidence." 4.13 The same measure applies to appeals and we wish to emphasize that there is nothing wrong with the Court considering and determining an appeal on the basis of filed process even where the parties were absent from the proceedings. 4.14 The arguments on this ground are dismissed. R 9 of 10 4.15 Grounds 2 and 4 4.16 Grounds 2 and 4 are in relation to our judgement making no reference to the Respondents heads of argument which according to the Respondent, if considered, the appeal may have been decided in favour of the Respondent. 4.17 At the hearing the Respondents heads of argument were not on any of the records provided to the three judges on the panel that heard this appeal. 4.18 The Respondent has however exhibited a copy of duly filed Respondents heads of argument together with an affidavit of service showing that it was served on the Appellant within the prescribed period. 4.19 Under this ground it was submitted that the law dictates that as far as possible matters must be heard on the merits. 4.20 The requirement to hear matters on the merits is not unfettered and only extends to deserving parties where there are no malafides and the parties have not engaged in dilatory conduct. 4.21 In casu, the absence of the Respondents arguments from the record is probably due to an administrative issue in our registry which cannot be blamed on the Respondent. R 10 of 10 4.22 The Respondent duly filed his heads of argument and served them as prescribed by the rules. No malafides or dilatory conduct can be attributed to him and we therefore find that not considering his heads of argument interfered with his right to be heard. In the circumstances considering the merits of his arguments is premature because in the absence of malafides and dilatory conduct, the right to be heard takes precedence. See Mwambazi v Morester Farms Limited l4l, 4.23 This application is granted and our judgement of 21st June, 2024 in which we allowed the appeal against the Respondent is set aside. Each party shall bear its own costs. 4.24 The appeal shall be heard at our April Session in Lusaka. ~ ""\. M.M. KONDOLO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE I