Meanwood General Insurance Co. Ltd v Metropolitan Life Zambia Limited (APPEAL NO. 19 OF 2024) (31 October 2024) – ZambiaLII

IN THE COURT OF APPEAL APP~t\>1JLN071'9 ·OF 2024 HOLDEN AT KABWE / /,._- /.if::; :;;--~I '",'\ \ (Civil Jurisdiction] ~ BETWEEN \ \ OC/ 20~ , I MEANWOOD GENERAL INS~ ~ ~ ~ -;D'...--..--_/,~pPELLANT ~(,(,:'.__~ AND METROPOLITAN LIFE ZAMBIA LIMITED RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA AND PATEL SC JJA On 14th and 31st October 2024 FOR THE APPELLANT MR. R. NGULUBE OF MESSRS TEMBO NGULUBE ASSOCIATES FOR THE RESPONDENT MR. P. CHOMBA OF MESSRS MULENGA MUNDASHI LEGAL PRACTITIONERS J U D G M E N T SIAVWAPA JP delivered the Judgment of the Court Cases referred to: 1. Chifuti Maxwell v Chafingwa Rodney Mwansa and another Appeal No 19 o/2016 Statutes 1. High Court Rules Chapter 27 of the Laws of Zambia 2. Rules of the Supreme Court 1999 Edition 1.0 INTRODUCTION 1.1 In this appeal, the issue is whether the learned Judge below misdirected himself in law when he refused to set aside or discharge the order for delivery of Judgment and for leave to cross-examine the Plaintiff's (Respondent's) witness. 1.2 In this case, the Honourable Mr. Justice Bonaventure Mbewe, sitting in the Commercial Division of the High Court, was faced with a situation that required him to undo the decision he had made in the absence of the Appellant. 2.0 BACKGROUND 2.1 In the Court below, lhe Appellant is the Respondent while the Respondent is the Plaintiff. The learned Judge below set 2nd August 2023 as the date for a status conference. Counsel for both parties attended the status confe ren ee at which the learned Judge set the 19th and 20th October 2023 as the dates for the hearing of the matter. 2.2 On the 19th October 2023, the Court sat as agreed. Counsel for the Plaintiff attended before the Court but counsel for the Respondent did not attend and did not send an apology. The Court proceeded to hear the case for the Plaintiff and made an order for the parties to file submissions after which the learned Judge would deliver the Judgment. 2. 3 Upon learning that the learned Judge had heard the Plaintiff's case and ordered the filings of submissions, the Appellant filed an application as set out in paragraph 1.1 above with the attendant affidavit. 2.4 The Respondent opposed the application through an affidavit filed into Court on 14th November 2023. 3.0 DECISION OF THE COURT BELOW 3.1 In his Ruling, which is the subject of this appeal, the learned Judge held that the Appellant had not provided J2 sufficient reason for its failure to attend Court on the date set for the hearing of the matter 3.2 The learned Judge referred to the fact that in his Court he always ensured that a Notice of Hearing is issued and served on the parties notwithstanding that the date is pronounced in the presence of all parties. 4.0 THE APPEAL 4.1 The Appellant moved the Court with four grounds set out as follows; 1. The Court below erred in law and fact when it declined to set aside and/ or discharge order for delivery of Judgment and for leave to cross-examine the Plaintiff's witness and to hear the Defendant's case, notwithstanding the fact that the Appellant had advanced good and sufficient reason explaining its absence at the trial on the appointed date 2. The Court below erred in law and fact when it held that the award of costs to the Respondent would not be an adequate remedy to re-opening the case contrary to the circumstances of the case 3. The Court below erred in law and fact when it refused or failed to exercise its inherent jurisdiction under Section 13 of the High Court Act when the facts and circumstances of the action manifestly clearly showed that its decision would inevitably lead to gross injustice being occasioned to the Appellant 4 The Court below erred in law and fact when it held that the Appellant could still be heard by filing its written submissions without testing the veracity of the Respondent's evidence through cross-examination and without calling its own witness to buttress its case 5.0 ARGUMENTS IN SUPPORT 5.1 In support of the first ground of appeal, the Appellant has argued that it advanced good and sufficient reasons for its absence at the hearing on 19th October 2023. The Appellant J3 has anchored its position on its explanation that it diarized the hearing date as 27th October instead of 19th and 20th October. It attributed the diarizing of the wrong date to human error. 5.2 The Appellant has also criticized the learned Judge for allegedly failing to exercise its inherent jurisdiction to di8charge r.ind or Ret aside the order for delivery of Judgment. In the alternative, the Appellant argued that the learned Judge should have adjourned the matter to the following day for cross-examination of the Respondent's witness. 5. 3 As regards the finding that costs would be inadequate to compensate the Respondents for the trouble it had taken to prosecute its case, the Appellant has argued that costs would in fact be adequate given that the Court had not yet delivered its Judgment. The Appellant further disputed the finding that the Respondent would be prejudiced if the case were re-opened. 5.4 Finally in ground four, the Appellant argued that the principle that matters ought to be determined on their merits entailed that the parties should be given the full opportunity to participate in the proceedings by presenting their evidence and cross-exam1n1ng the opponent's witnesses. 6.0 ARGUMENTS IN OPPOSITION 6.1 In opposing the first ground, the Respondent has drawn from the reason deployed by the learned Judge below for J4 rejecting the application. The main fact the Respondent has relied upon is that the learned Judge issued a notice of hearing containing the dates 19th and 20th October 2023, which was served on the parties. 6.2 On the argument that the Court below failed to exercise its inherent jurisdiction under Section 13 of the High Court Act, the Respondent has argued that in fact, the Court had no jurisdiction to entertain the application because it was brought more than seven days after the Court had made its order. 6.3 The Respondent argued that Order 35 rule 2 of the Rules of the Supreme Court 1999 edition was the relevant provision and not Order 35 rule 5 of the High Court Rules. 6. 4 On whether or not an order for costs would be adequate, the Respondent argued that an order for costs is in the discretion of the Court. It further argued that given the two opportunities given to the parties to note the trial dates, costs would not be appropriate to compensate for judicial time lost. 6.5 On the Appellant's criticism of the learned Judge's position that the Appellant could have been heard through written submissions, the Respondent's view is that the Appellant deprived itself of the opportunity to be heard by staying away from Court on 19th October 2023 when the matter was scheduled for hearing. JS 7.0 OUR ANALYSIS AND DECISION 7 .1 We must state at the outset that this appeal is interlocutory in nature because it arises from a decision of the Court below in a matter that was still pending Judgment. It means that the main matter in the Court below has not been finally disposed of on the merits, 7.2 On reading the grounds of appeal, the impugned Ruling and the competing arguments, it is common cause that the Appellant did not attend on the date the matter was scheduled for hearing in the Court below. It is also common cause that the Court set the dates of hearing at a scheduled status conference in the presence of both parties. 7 .3 The issue is; did the Appellant give sufficient reason for its failure to attend the hearing? The mainstay of the argument is that due to human error, counsel for the Appellant diarized wrong dates instead of the dates set by the Court for the hearing of the matter. 7.4 The whole issue revolves around Order XXXV of the High Court Rules and Order XXXV of the Rules of the Supreme Court 1999 edition as read together with various Court decisions. Rule 5 of the High Court Rules allows the Court to render Judgment in the absence of a party. 7.5 However, in this case, although the Court was ready to deliver Judgment, it did not because of the present challenge. J6 7.6 It is however, explicit in rule 3 of Order XXXV of the High Court Rules that where a defendant fails to appear without sufficient excuse, the Court has the discretion to hear the plaintiff and render its Judgment on the plaintiffs evidence. 7. 7 Because Order XXXV of the High Courts Rules focuses on Judgment rendered in the absence of a party, and the discretion of the Judge to set aside such a Judgment recourse is had to Order XXXV rule 2 of the Rules of the Supreme Court, 1999 edition which provides as follows; "Any judgment, order or verdict obtained where one party does not appear at the trial may be set aside by the Court, on application of that party, on such tenns as it thinks just" It further goes on to state; "An application under this rule must be made within 7 days after the trial'' 7. 8 The evidence on the Record of Appeal shows that the Appellant only filed the challenge before the High Court after twelve days without leave of the Court. The Appellant ,vas out of time. We therefore, agree with the argument by the Respondent that being out of time, the application by the Appellant was incompetent and therefore, improperly before the Court. 7. 9 But even assuming that it was properly before the Court, it appears to us that the learned Judge below exercised his discretion properly when he found that the Appellant did not give sufficient reason for its failure to attend Court on the scheduled date. J7 7. 10 It does not make good logical sense that counsel who was before the Court when it announced the hearing dates of 19th and 20th October 2023, could have recorded different dates in his diary. 7.11 But even if counsel 1s given a benefit of doubt in that respect, how then is it that he was not prompted to amend the dates in his diary upon being served with the notice of hearing bearing the dates pronounced by the Court? 7.12 In support of its position that the mis-diarizing was due to human error, the Appellant relies on its own argument that it was due to a possible genuine human error or mistake. 7. 13 That does not however, resolve the question how the Appellant did not amend the diary after it was served with a notice of hearing. 7. 14 The learned Judge correctly guided himself in determining that the explanation the Appellant gave for its failure to attend before the Court was not sufficient. 7.15 On whether or not an order for payment of costs would have atoned for the time and inconvenience, the learned Judge was guided by the Order XXXV rule 3 earlier cited and several other decisions of the Supreme Court including the case of Chifuti Maxwell v Chafingwa Rodney Mwansa and Rodgers Chipili Mwansa1 7.16 The cited authorities hold to the effect that it is the reason for the absence and nut the defence on the merits that matters in such a case. J8 7 .17 We would therefore, not fault the learned Judge's finding that the reason for non-attendance by the Appellant was not sufficient in light of the two stages of the notification of the hearing dates. 7. 18 In fact, we would go further to state that where on the facts before the Court, the provisions of Qr.9:~r, .)GO(V r-µJe 3 have not been satisfied, then t.he t.dFJl ,Judge need not. consider the issue of costs. 8.0 CONCLUSION 8.1 In view of our analysis above and considering the fact that the learned Judge made his Ruling in exercise of his discretionary power, we will be slow to interfere with it. 8.2 We accordingly dismiss the appeal with costs to be agreed and in default to be taxed by the taxing officer. SIL APA J.M. JUDGE PRESIDENT ~ F .M. CHISHIMBA A.N. PATEL SC COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J9