Kennedy Mambwe v Katia Shamu and Kakusa S Mundia (APP/172/2022) (17 April 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APP/172/2022 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: KENNEDY MAMBWE APPELLANT AND KATIA SHAMU 1 RESPONDENT ST KAKUSA S. MUNDIA 2ND RESPONDENT Coram: Mchenga DJP, Muzenga and Chembe , JJA On 24th March 2024 and 17th April 2024 For the Appellant: N. Ngonga with R. Nyirenda, Messrs. Fred Jere and Company For the Respondents: No Apperance Judgment Mchenga DJP, deiivered the judgment of the court Cases referred to : 1 . Costellow v . Somerset County Council (1983]1 ALL ER 2 . Zambia Revenue Authority v . Jayesh Shah (2001] Z.R. 3. Trade Kings Limited v . Unilever, Cheesbrough Ponds (Zambia) Limited and Lever Brothers (Zambia Limited) , SCZ Judgment No. 2 of 2000 4. Attorney General v . Marcus Kampumba Achiume [1983] Z. R. 1 5 . Wilson Masauso Zulu v . Avondale Housing Project Limited [1982) Z.R. 172 J2 6. Mundia Sikatana v . The Attorney General [1982] Z.R. 7 . University of Zambia Council v . Calder [1998] Z.R. 8 . Clement Chuuya and Hilda Chuuya v . J .J . Hankwenda, SCZ Judgment No . 3 of 2003 9. Micheal Mabenga v . The Post Newspapers Limited Appeal No . 069 of 2012 10 . R v . Sussex Justices, ex-parte Mcarthy [1924]1 KB 256 11 . Twampane Mining Co- operative Society Limited v . E and M Storti Mining Limited [2011] Vol 3 Z.R. 67 12 . Chandiwira Nyirenda and Others v . Deep Six Company Limited, CAZ Appeal No . 105 of 2017 13 . Milingo Lungu v . The Attorney General and Administrator General, 2022/CCZ/006 14 . Bernert v . ABSA Bank Ltd., 2011 [3] SA 92 [CC] Legislation referred: l . The High Court Act, Chapter 27 of the Laws of Zambia 2 . The Judicial Code of Conduct Act, No . 13 of 1999 3 . The Court of Appeal Rules , Statutory Instrument No . 65 of 2016 INTRODUCTION This is an appeal from an order of the High Court c11 (Wanjelani , J ., hereinafter referred to as the trial Judge) , dated 28th January 2020 . J3 By that order, the appellant' s suit was dismissed (21 for want of prosecution. BACKGROUND On 9th April 2015 , the appellant, by writ of summons, C3J took out proceedings in the Principal Registry agai nst the 1st and 2nd respondents . The appellant was on 17th April 2015, granted leave [4J to amend the writ. Not only did he amend the writ, he also joined in new parties, two plaintiffs and five defendants . The five other defendants, included The Attorney General . Some of the added defendants, contested thei r [5J joinder. On or about 21st April 2015, the appellant served CGJ the amended writ on The Attorney General . In a letter dated 28th April 2015, The Attorney [7J General requested the appellant to serve them with statement of claim and other relevant document . Despite this request, there was no attendance on their behalf at the hearing contesting the joinder . Neither did they f i le any document contesting it . J4 On 6th August 2015 , the j oihder of al 1 the new cs1 parties, including The Attorney General was set aside for being irregular . The appellant decided to contest that decision . (91 The first application he made was for leave to [101 appeal the decision . The application was not heard on a number of occasions primarily on account of the appellant' s non-at tendance . On 15th July 2016, Bowa, J ., who had taken over [111 the matter from Kajimanga, J ., call ed for a status conference . None of the parties attended and he adjourned the matter to 2nd August 2016 . On 2nd August 2016, Bowa, J ., struck out the [121 matter because the appellant did not attend. He directed that the matter would stand dismissed if i t was not restored within 14 days . The appellant applied for the matter to be [13J restored and the hearing was scheduled for 26th August 2016 . The application was not heard because the appellant did not attend. Only the 2nd respondent was in attendance. JS Bowa, J . ordered that the application to restore c141 the matter was only going to be heard after costs for the 2nd August 2016 sitting, were paid to the 2nd respondent . The matter wa-s referred to taxation and on 12th c1s1 June 201 7, the taxing master rendered a bill of K16, 405 . 00 Between 15th September 2017 and 30th April 2018, c1G1 the case came up on at least four occasions but coul d not proceed mainly because the appellant was either unavailable or not ready to proceed . The case was reallocated and the trial Judge who c171 immediat ely scheduled the case for a status conference on 16th August 2018 . There was no attendance by both parties on that r1a1 day and the matter was struck out . The trial Judge also directed that if the matter was not restored within 7 days , it would stand dismissed. At a status conference on 16th November 2018, the c191 trial Judge noted that costs ordered by Bowa J ., had not been paid. The appellant indicated that it was J6 on account of there being an objection to bill of costs . The case was adjourned to 28th Januar y 2019. On 28th January 2019, the appellant informed the c201 court that he had applied for the review of the bill of costs and the matter was pending before taxing master . The matter adjourned to 7th March 2019 . On 7th March 2019, the matter came up for a c211 status conference . The trial Judge observed that the appellant was not present in spite of being aware of the hearing . She also noted that the appellant did not attend most scheduled hearings . She dismissed the matter for want of prosecution . The appellant applied for · the sett ing aside of c221 that order on 9th May 2019 . On 22nd May, 2019 the appellant' s appli cation to c231 set aside the order dismissing the matter for want of prosecution was granted and the matter was restored to active cause list . The matter then came up on 16th June 2019, 31st c241 July 2019 and 27th November 2019 . No progress could be made because the appellant had not paid the costs J7 ordered by Bowa, J . on 26th August 2016 . It was adjourned to 28th January 2020 .. When the matter came up on 28th January 2 02 0, the [2s1 trial Judge observed that the matter had not progressed from 2016 owing to the appellant' s failure to pay the costs . She also noted that despite being ordered to pay the costs in two equal instalments, by 31st November 2019 and 31st December 2019 respectively, the appellant had not complied with that order . Consequently, she dismissed the matter for want [26J of prosecution . Further, on 28th October 2020, the trial Judge [27J declined to grant an application from the appellant that she reviews her decision dismissing the action for want of prosecution on 28th January 2020 . GROUNDS OF APPEAL Five grounds have been advanced in support of c2s1 the appeal . They are couched as follows : (i) That the trial court below erred in law and fact when it dismissed the appellant's J8 application on the basis of costs and not on the merit of the case; (ii) That the trial court below erred in law and fact when it reviewed the decisions of the other High Court Judges who had previously handled the. case when the trial court knows or ought to know that they are technically at the same level; (iii) That the trial court below erred in law and fact when it dismissed the matter as a way to enforce its decision on costs; (iv) That the trial court erred in law and fact when it dismissed the appellant's application for appeal citing lack of merit; and (v) That the trial court erred in law and fact when it determined the matter where it had acted before as advocate. APPELLANT'S ARGUMENTS IN SUPPORT ·OF THE APPEAL In support of t he first ground, i t was argued [291 that the trial Judge erred when she dismissed the matter for a procedural default and not on the J9 merits . The cases of Castellow v. Somerset County Council 1 and Zambia Revenue Authority v . Jaye sh Shah2 were referred to in support of the , proposition . Counsel also referred to the cases of Trade Kings c301 Limited v . Unilever, Cheesbrough Ponds (Zambia) Limited and Lever Brothers (Zambia Limited) 3 , Attorney General v. Marcus Kampumba Achiume4 and Wilson Masauso Zulu v . Avondale Housing Project Limited5 and submitted that the trial Judge erred when she failed to consider the fact that the delayed conclusion of the case could not be solely attributed to the appellant . The other parties had equally contributed to the c311 del ay and by solely concentrating on the appellant' s infractions, her evaluation of the evidence before her was unbalanced. In support of the second ground of appeal, it c321 was submitted that the trial Judge was proscribed from reviewing the ruling of Kajimanga, J ., who had ruled that the matter be determined on its merits . JlO Section 4 of the High Court Act and the cases of C33J Mundia Sikatana v . The Attorney General 6 and University of Zambia Council v. Calder7 were , referred to and it was submitted that the decision was erroneous because Kajimanga, J ., and the trial Judge were of equal jurisdiction. That being the case, she could not overturn the decision of Kajimanga, J . Grounds three and four were argued at the same C34J time . It was submitted that the law provides for various processes on how claims relating to payment of money can be enforced. The essence of this argument was that dismissing a matter due to lack of payment is not one of them. It was also argued that despite presenting c3sJ evidence that they had paid the costs after 31st December 2 019, the lower court still proceeded to dismiss the matter . Reference was made to the cases of Clement Chuuya and Hilda Chuuya v . J . J . Hankwenda8 and Micheal Mabenga v. The Post Newspapers Limited9 , in support of the argument that the decision was erroneous . Jll As regards the fifth ground of appeal , it was C36J argued that since the trial Judge had handled the matter as Princi pal State Advocate in The Attorney General' s office, she should not have presided over the case . Counsel referred to Section 6 (1) and(2) of the c311 Judicial Code of Conduct Act and the cases of Micheal Mabenga v. The Post Newspapers9 and R v. Sussex Justices, ex-parte McCarthy10 and submitted that judges are di scour aged from finding themselves in situations that cause their impartiality to be questioned. ARGUMENTS IN RESPONSE TO THE APPEAL In r esponse to the grounds of appeal, it was c3s1 submitted that the trial Judge was on firm ground when she di smissed t he matter for want of prosecution . I t was pointed that when the matter came up on C39J 28th January 2020 for a status conference, counsel for the appellant_ notified the court that they had J12 not complied with the order to settle the costs by 31st December 2019 . It was also submitted that apart from that, the [4oJ appellant had continuously flouted other orders of the court and the matter was recurrently struck out from the active cause list. The case of Twampane Mining Co-operative Society Limited v. E and M Storti Mining Limited11 was referred to and it was submitted that the trial Judge was entitled to dismissing the matter for the flouting of court orders. In response to the 2nd ground of appeal it was c411 pointed out that the appellant has not shown the manner in which the trial Judge reviewed the decisions of other judges . As regards the argument that, the trial Judge [42J should not have presided over the case because she handled the matter when she was an advocate, it was submitted that the argument was frivolous , vexatious and made in bad faith . It was also argued that the letter exhibited by the appellant cannot be interpreted to mean that she acted as a legal practitioner in this matter . J13 The respondents also drew the attention of the [43J court to the fact that by an order 6th August 2015 , The Attorney General was removed as a party from the proceedings. It was their submission that all the grounds of [44J appeal lacked merit . It was also their submission that the appeal must accordingly be dismissed . CONSIDERATION OF THE APPEAL AND DECISION OF THE COURT We will start with the first ground of appeal . [4SJ As of 28th January 2 02 0, when the trial Judge [46J dismissed the matter, the appellant was still attempting to appeal against an order by Kajimanga, J ., dated 6th August 2015, striking out parties he had irregularly joined to the proceedings . That order had been handed down close to 5 years earlier . While it is true that on a few occasions the [47J respondents did not attend court, it is our view that the trial Judge cannot be faulted for wholly placing the blame on the appellant for the delayed progress in this case . In any case, the appellant was the plaintiff and C4BJ it was for him to prosecute the case . J14 It is our view that the appellant' s claim that C49J he was denied the opportunity to have the matter determined on its merits and that the trial Judge was biased in her assessment of the causes of the delay, are baseless . The background to this case, which is set out in c501 paragraphs 3 to 27 of this judgment, clearly show that the delayed conclusion of this case, squarely rests on the appellant. He delayed the case by either not attending court and/or not paying the costs ordered in 2016 . It cannot, seriously be claimed that the (51] appellant was denied the opportunity to have his claims determined on their mer1ts . We find no merits in the first ground of appeal and we dismiss it. The second ground of appeal is concerned with c521 the alleged review of the decisions of other High Court judges by the trial Judge . As correctly submitted by the respondents , the C53J appellant has not substantiated this ground of appeal . J15 In their application to strike out parties that C54J had been irregularly joined to the proceedings, the applicants also prayed for the dismissal of the action . Kaj imanga, J . in a ruling dated August SLh 2015, struck out the irregularl y joined parties but declined to dismiss the action, ruling that it must be determined on its merits . The order that the matter be determined on it C55J its merits, cannot, as is being suggested by the appellant be interpreted to mean that whatever the circumstances or infractions by the appellant, the matter could not be dismissed, it had to be heard on its merits. The order that the matter be heard on its merits C56J related to the respondents ' application that the case be dismissed because the appellant had irregularly joined some parties . This being the case, we similarly find no merits c511 in the 2nd ground of appeal and we dismiss it . The 3rd and 4th grounds of appeal are concerned c5a1 with the dismissal of the case for want of J16 prosecution on account of costs not being paid, when they had in fact been paid. During the hearing on 28Lh January 2020, which cs91 hearing resul ted in the trial Judge dismissing the matter, the appellant conceded to not havi ng pai d t he costs in f ull . According to· t he order of the court, the (60] appellant was supposed to pay the 1sL instalment by th 30 November 2019 . The 2nd instalment was payable by st 31 December 2019 . th The appellant paid the 1 sL ins talment after 30 c611 November 2019. In the case of the 2nd instalment, it st was paid on 31 January 2020 . This was two days aft er the matter had been dismissed for none payment . In the circumst ances, we f ind that t he 3rd and cG21 th 4 grounds of appeal have no merits because the costs where not paid within the prescribed period. We dismiss both of them. th The 5 ground of appeal is anchored on the fact cD J that since the tri al Judge dealt with the matter as an advocate, she should not have presided over the case . Jl7 It is not in dispute that prior to taking up her [64J appointment as judge, the trial Judge was a state advocate in the office of The Attorney General . It is also not in dispute that on 25th April 2015, she wrote a letter demanding certain documents for the case. However, one should not end there when [65] consideri ng the extent to which the trial Judge handled the case as a state advocate and assessing the possibility of bias . On 21st April 2015, the appellant served an [661 incomplete set of pleadings relating to the case on The Attorney General . The trial Judge who was Princi pal State Advocate at the time, wrote the appellant requesting for the missing pleadings . There is no evidence that the requested documents were ever served. On the 6th August 2015, the Attorney General was [67J removed from being a party to the proceedings on the application of other parties who had been irregularly joined. The Attorney General was not represented at that hearing, neither did that office file any J18 documents in support of the application for non j oinder . Following the reallocation of the matter to the c6eJ trial Judge, she presided over a status conference on 16th November 2018 . The appellant appeared through counsel from that day until 28th November 2020 . He did not on any occasion raise issue with the trial Judge being conflicted on account of having handled the matter as an advocate . There is also evidence that after dismissing the [69J case for want of prosecution on 7th March 2019, in circumstances that were justified, the trial Judge restored it on 9th May 2019 . The appellant only raised i ssue with the c101 partiality of the trial Judge after she refused to review her decision after dismissing the matter for the second time. cn1 Apart from the letter the trial Judge wrote to the appellant seeking the missing pleadings , there is no evidence that can reasonably lead to a conclusion that she dealt with the matter as an J19 advocate to an extent that can reasonably raise the possibility of her being biased. In our view, the test of "reasonableness" must c121 be satisfied where a person makes an allegation of possible bias . In the case of Chandiwira Nyirenda and Others v . c131 Deep Six Company Lirnited12 we said the following : , "The test applicable in all cases of apparent bias, whether concerned with justices, members of inferior tribunals, jurors or with arbitrators, is whether, having regard to all the relevant circumstances, there is a real possibility of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard with favour, or disfavour, the case of a party to the issue under consideration by him. In considering this question, all the circumstances which have a bearing on the suggestion that the judge or justice is biased must be considered. The question is whether a fair minded and informed observer, having considered the fact, would conclude that there was a real possibility that the tribunal was biased. . " Furthermore, in the case of Milingo Lungu v. c141 The Attorney General and Administrator General13 the • Constitutional Court stated that : "It is not enough to merely allege that there is danger of bias without producing credible J20 evidence, neither is it enough for the person alleging to merely have suspicions or apprehensions. " At this point they made reference to the South c7sJ African case of Bernert v . ABSA Bank Ltd14 in which the following sentiments were made : "The presumption of impartiality and the double requirement of reasonableness underscore the formidable nature of the burden resting upon the litigant who alleges bias or its misapprehension. The idea is not to permit a disgruntled litigant to successfully complain of bias simply because the judicial officer has ruled against him or her. Nor should litigants be encouraged to believe that, by seeking the disqualification of a judicial officer, they will have their case heard by another judicial officer who is likely to decide the case in their favour. Judicial officers have a duty to sit in all cases in which they are disqualified from sitting. This flows from their duty to exercise their judicial functions . As it has been rightly observed, judges do not choose their cases; and litigants do not choose · their judges. An application for recusal should not prevail, unless it is based on ·substantial grounds for contendi ng a reasonable apprehension of bias ." All in all, we are satisfied that the fact that [76J the trial Judge wrote a letter as an advocate does not, in the circumstances of this case, establish that she handled the case as an advocate . J21 It is no wonder that even i f the appellant was cn1 aware of that she wrote the letter, he never questioned her partiality or the appropriateness of her handling the case, not until could not provide any viable arguments to support his quest to have the matter restored. That being the case, we are incli ned to agree c101 with the respondents ' submission that the claim of bias is frivolous , vexatious and has been raised in bad faith . We find no merit in the fifth ground of appeal c191 and we dismiss it . VERDICT Having dismissed all the five grounds of appeal, c0O1 this appeal fails . .. We dismiss the appeal with costs, the costs are to cs11 be taxed in default of agreement . C.F.R. Mchenga DEPUTY JUDGE PRESIDENT ·--·· ,.,.__......,_.. , . _ . ,_ , ......................... . .........................·~ ........... . K. Muzenga Y. Chembe COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE