Loanco Limited v Raymond West Evans (APP/ 408/ 2023) (26 June 2024) – ZambiaLII

I I IN THE COURT OF APPEAL OF ZAMBIA APP/ 408/ 2023 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 2 6 2 1 LOANCO LIMITED JUN D24 APPELLANT AND RAYMOND WEST EVANS RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA AND BANDA-BOBO, JJA On 30th April and 26th June, 2024 V FOR THE APPELLANT: Mrs. Nkusuwila N. Mbao with Miss R. Samanjomba both of Nkusuwila Nachalwe Advocates FOR THE RESPONDENT: Not in attendance J U D G M E N T SIAVWAPA JP, delivered the Judgment of the Court Cases referred to: l . Tanzania Zambia Railway Authority v Mwanza and Others Appeal 35 of 2014 2. Gershom Mumba v Rajiv Kumar Dewan SCZ Appeal No 153 of 3. Time Trucking Limited v Kelvin Kipimpiu Appeal No 250 of 2020 4. Akashambatwa Mbikusita Lewanika & Others v Frederick Jacob Titus Chiluba (1998) ZR 79 5. Jamas Milling Co Ltd v Amex International (Pty) Ltd SCZ Appeal No 20 of 2002 6. Tanzania Zambia Railway Authority v Mwanza & Others SCZ Appeal No 35 of 2014 7. Gershom Mumba v Rajiv Kumar Dewan SCZ Appeal No 153 of 8. Time Trucking Ltd v Kelvin Kipimpiu CAZ Appeal No 250 of Legislation referred to: 1. The High Court Rules as amended by S.I No 58 of 2020 1.0 INTRODUCTION 1.1 This appeal emanates from a ruling of the High Court delivered by the Honorable Mrs. Justice M.C. Mikalile on 2nd October, 2023, by which she held that the Appellant's witnesses could not testify at trial because it had failed to file witness statements. 2.0 FACTS 2 .1 On 11th August, 2021, the Respondent commenced an action against the Appellant claiming, inter alia, balances due under a Mutual Separation Agreement executed by the parties on J2 25th June, 2021, unpaid allowances and the cash value of accrued leave days. 2.2 The Appellant entered its appearance and filed a defence on 3rd September, 2021. The Respondent filed his reply on 23rd September, 2021. 2.3 On 30th September, 2021, with none of the parties in attendance, the learned Judge issued an order for directions and therein ordered that the status conference be held on 18th November, 2021. 2.4 The Respondent complied with the order for directions and was the only party in attendance at the status conference. The learned Judge scheduled trial for 12th April, 2022. 2.5 By a notice of hearing dated 19th November, 2021, the Appellant was informed of the trial date prompting it to file summons for an extension of time within which to comply with the order for directions. 2.6 The reason for the application was that it had neither been served with the order for directions and notice of the scheduling conference nor invited to conduct discovery and inspection by the Respondent's Counsel. 3.0 TRIAL 3 .1 On the date fixed for trial, the learned Judge heard the application and refused to grant the order because in her view, there was serious laxity on the part of the Appellant. The J3 learned Judge took the view that the Appellant ought to have applied for extension of time soon after receiving the notice of hearing in November 2021 but that it decided to file a day before the trial date contrary to Order 19 Rule 3(3) of the High Court Rules. 3.2 Trial of the matter proceeded with the Respondent presenting his case. When the Appellant sought an adjournment to enable it put its witnesses on the stand, the Respondent objected to the adjournment and the learned Judge reserved her ruling. 3.3 by a ruling dated 22nd April, 2022; the learned Judge held that the Appellant was at liberty to place its witnesses on the stand notwithstanding its failure to file witness statements. 3 .4 The learned Judge referred the matter to mediation and upon its failure; trial proceeded on 2nd October 2023. The Respondent objected to the Appellant calling witnesses on the basis that the Appellant had not filed any witness statements as required by Order XIX of the High Court Rules. 4.0 RULING OF THE HIGH COURT 4.1 The learned Judge found that the Appellant had neglected to file witness statements in disregard of S.I No 58 of 2020 that amended Order XIX of the High Court Rules. J4 4.2 The learned Judge then closed the matter and ordered the parties to file written submissions after which she would deliver Judgment. 5.0 THE APPEAL 5.1 Dissatisfied with the ruling, the Appellant lodged this appeal anchored on the following grounds: 1. The learned trial Judge erred in law and in fact when she reviewed her earlier Ruling of 22nd April 2022 on the premise of an objection by the Respondent in the absence of a formal application to review. 2. The learned trial Judge misdirected herself in law when she denied the Appellant an opportunity to be heard while obeying a lawful Court Order in the Ruling of 22nd April) 2022. 6.0 ARGUMENTS IN SUPPORT 6.1 The gist of the arguments in support is that the learned Judge reviewed her ruling of 22nd April, 2022, contrary to the provisions of Order 39 rule 2 of the High Court Rules. The grievance is based on the fact that the Respondent did not formally ask the Court to review its ruling but only raised an objection viva voce more than a year after the Ruling was passed. JS 6.2 The Appellant relied on the cases of NFC Africa Mining PLC v Techro Zambia Limited and Ram Aurbach v Alex Kafwata2 in which the Supreme Court of Zambia urged the strict adherence to the Rules of Court for proper and orderly administration of justice and the peril of default. 6.3 The rest of the arguments speak to the application and interpretation of Order 39 of the High Court Rules as given by numerous decisions of the Supreme Court of Zambia. Among the cases cited are; Codeco Limited v Elias Kangwa & others3 , Akashambatwa Mbikusita Lewanika & others v Frederick Jacob Titus Chiluba4 and Jamas Milling Company Ltd v Imex International (Pty) Ltd5 to cite but only three. 6.4 The Appellant also argued that the Court below should not have re-opened the issue of disobedience to the Order for Directions because it had already dealt with it when it refused to grant an order for extension of time. Further that it had earlier authorised the Appellant to put its witnesses on the stand, 7.0 ARGUMENTS IN OPPOSITION 7 .1 In response to the arguments 1n support of the appeal, the Respondent argued that the learned Judge did not review her Ruling of 22nd April, 2022. According to the Respondent, the Appellant attempted to put a witness on the stand without filing a witness statement contrary to Order 19 of the High J6 Court Rules as amended by Statutory Instrument No 58 of 8.0 OUR ANALYSIS AND DECISION 8.1 The issues for resolution are whether by her ruling of 2nd October, 2023, the learned Judge reviewed her earlier ruling of 22nd April, 2022, and; Whether the Appellant should have been allowed to call witnesses in its defence. 8.2 On the first issue, our examination of the Court's ruling dated 22nd April, 2022, appearing at page 203 of the Record of Appeal, reveals that the learned Judge authorised the Appellant to call witnesses even though it had not filed witness statements and she so ordered. 8.3 At page 24 7 of the Record of Appeal, the proceedings show that the Appellant attempted to call its witnesses on 2nd October, 2023, but the Respondent's Counsel made the same objection to the placing of witnesses on the stand that culminated in the earlier ruling of 22nd April, 2022. 8.4 When the Respondent cited Order XIX of the High Court Rules to argue that the filing of witness statements was mandatory, the learned Judge reneged on her earlier order and held that the Appellant could not call witnesses as it had not filed witness statements. J7 8.5 The Respondent argues that the effect of the ruling dated 2nd October, 2023, is that the learned Judge reviewed her ruling of 22nd April, 2022. 8.6 In the Respondent's view, the Court's ruling of 22nd April, 2022, that the Appellant could call witnesses, implied that it should also file witness statements to comply with Order XIX of the High Court Rules. 8.8 Notwithstanding the fact that the Court below had already dealt with the objection raised by the Respondent, it proceeded to determine the same question, on the same facts and came to a different conclusion. This clearly amounted to the learned Judge reviewing her Ruling of 22 nd April, 2022. 8. 9 In the case of Tanzania Zambia Railway Authority v Mwanza and Others6 the Supreme Court of Zambia guided on when , the High Court may review its decision under Order 39 of the High Court Rules when it stated as follows; "Review under Order 39 is a two-stage process. First, showing or finding a ground or grounds considered to be sufficient, which then opens the way to the actual review. Review enables the Court to put matters right. The provision for review does not exist to afford a dissatisfied litigant the chance to argue for an alteration to bring about a result considered more acceptable." 8 .10 The Supreme Court further provided the following illustrations of how the Court's powers are exercised "If it is suggested that a Court has come to an erroneous decision, either in regard to law or fact, then amendment of its order cannot be sought, but recourse must be had to an appeal to the extent to which appeal is available." J8 8.11 In the case of Gershom Mumba v Raiiv Kumar Dewan7, wherein a High Court Judge delivered a judgment on 21st March, 2001, and reviewed the said judgment on 20th May, 2001, of his own motion, the Supreme Court found that the review of the judgment in the absence of the parties, 62 days after it had been entered, was irregular. 8 .12 In the case of Time Trucking Limited v Kelvin Kipimpiu8 we interrogated the question whether a Court can review its decision of its own motion and without hearing the parties. 8.13 We held that the review must be done within the prescribed review period provided in Order 39 of the High Court Rules. There must be sufficient reason to warrant the review and the parties must be afforded a chance to be heard. 8.14 In this appeal, the Court below reviewed its ruling one year five months later taking it way outside the fourteen days prescribed by Order 39 of the High Court Rules. 8.15 The proceedings at pages 24 7 and 248 of the record show that the Appellant had an opportunity to address the Court on the objection raised by the Respondent. That notwithstanding, the decision to review her ruling following an objection raised by the Respondent was contrary to established procedure and therefore, irregular. J9 8.16 The ruling dated 2nd October, 2023, ought to be set aside for being made in violation of the prescribed procedure rendering it irregular. 8.17 With regard to the second ground, it follows that our setting aside of the Ruling of 2nd October, 2023, paves way for the Appellant to rely on the Ruling of 22nd April, 2022. 8 .18 The order in the ruling of 22nd April made it clear that the Appellant did not need to file witness statements before calling its witnesses to the stand. The fact that the learned Judge may have made that decision outside the provisions of Order XIX of the High Court Rules is immaterial. 8.19 The avenue that the Respondent had at the time the decision was made was to apply to the learned Judge for a review of her decision pursuant to Order 39 of the High Court Rules within fourteen days, or with special leave outside the fourteen days limit. 8.20 The Appellant cannot therefore, be faulted for not filing witness statements before the continuation of trial as the Court had refused to extend the time within which to comply with the order for directions. 9.0 CONCLUSION 9.1 It is clear from the objection the Respondent raised in Court below on the 2nd October 2023, that he misunderstood the Ruling of 22nd April, 2022. In his view, the permission the JlO ' ' ' 9.2 Unfortunately, the learned Judge was swayed by the Respondent's arguments and decided to change her mind on her Ruling of 22nd April, 2022. 9.3 This was misdirection on the part of the learned Judge warranting the setting aside of the Ruling of 2nd October 2023. We accordingly set it aside and allow the appeal. 9.4 Subsequent to the above, we remit the record to the High Court before the same Judge for continued hearing so that the Appellant can put its witness (es) on the stand as per the Ruling of 22nd April, 2022. 9. 5 Because this appeal was occasioned by the Court's contradictory Rulings, it is appropriate to order parties to bear their own costs and we order accordingly. J M.J. SIAVWAPA JUDGE PRESIDENT F.M. CHISHIMBA A.M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE Jll