Chen Caiping v Solomon Chemicals Enterprises Limited and Solomon Ng'ambi (2024/HP/0030) (22 February 2024) – ZambiaLII

Il THE HIGH COURT FOR ZAMBIA 2024/HP/0030 AT THE PRINCIPAL REGISTRY HOLDE AT LUSAKA (Civil Jurisdiction) BETWEE : CHEN CAIPING PLAINTIFF AND SOLOMON CHEMICALS ENTERPRISES 1 S T DEFENDANT LThfITED SOLOMON NG' AMBI 2ND DEFENDANT Htd<Jre: llunourable Lady J11stice C. Chinyanwa Zulu in Chambers on 27" February For the Pluintiff: Mr T.S Milimo & Mr C. Menshi - A Cho/a Kafwabulula Legal Practitioners For tire Defendants: Mr Robert Clripeta & Mr Andrew Nkunika - Nkunika & Clripeta Legal Prnctitio11er RULING DcliverL'd Ex-Tempore on Application for an Order to Set Aside Default Judgment of 6th February 2024 and Stay Execution J:ASES J,l.EFERRED T_O: 1. John W.K Clayton V Hybrid Poultry Farm Limited (2006) ZR 70; 2. Edson Chenda V Satkaam Limited (1979) ZR 119; 3. Stanley Mwan1bazi V Morester Farms Limited (1977) ZR 108; 4. Govindbhai Baghibhai & Vallabhai Bagabhai Patel V Monile Holding Compan Limited (1993-1994) ZR 20; LEG ISLAT IO AND OTHER WORK REFERRED TO: 1. Zambian Civil Procedure, Commentary & Cases, Volume 1 Page 409. I have LISTENED ATTE TTVELY to the arguments and SERIOUSLY CO SIDERED the Affidavit evidence, List of Authorities and Skeleton Rl .... Arguments filed by the Parties. After CAREFUL COSNIDERATION, my decision is as follows. 2.0 THE LAWO SETTI GASIDE OFADEFAULTJUDGMENT 2.1 The jurisdiction to set aside a default judgment is a discretionary one. As with any discretionary power, it ought to be exercised judiciously. The following authorities arc instructive on the requirements that an applicant must satisfy for such discretion to be exercised in their favour. 2.2 The following guidance was given in the case Edson Chenda v Satkaan Limited (1979) ZR 119: - Before disposing of this matter, I would briefly refer to the merits of the application to set aside judgment and grant unconditional leave to defend. It is quite clear that it is open lo the defendant in an action to apply to the High Court to set aside judgment in default of appearance and to be granted leave to defend the action. Anv such application must be bona fide. If the a wlicant satisfied the court that there was ood reason for ·ud ment to be set aside and leave ·veo to defend the court will no doubt grant the application. In obtainin leave to dcfe nd the defendant need no more than establish a triable issue namely, he should satisfv the cou11 that he has a defence onJhe merits. 2.3 ln the case Stanley Mwambazi v Morester Farms Limited (1977) ZR 108 the Supreme Court guided as follows: - At this stage it is the practice in dealing with bona fide interlocutory applications for courts to allow triable issues to come to trial despite the default of the parties. The silltation is different from that which obtains when there bas been a trial and there is default in connection with a proposed appeal because then it cannot be said that the parties have been denied the rigbt to a trial. Where a party is in default he may be ordered to pay costs, but it is not in the interests of justice to deny him the right to have his case heard. l would cm hasise that R2 for this favourable treatment to be afforded to the a licant there must be no !!_nreas..9nable del.ID', no male fides and no imprQper conduct of the action on the art of the a Rlicanl." 2.4 The above decision was upheld by the Supreme Court in the case Govindbhai Baghibhai and V allabhai Bagabhai Patel v Monile Holding Company Limited (1993-1994) ZR 20 wherein the Supreme Court went a step further and guided that it is of prime importance to consider whether there is a triable issue. The learned author of Zambian Civil Procedure: Commentary and Cases, Volume 1 at page 409 aptly summarises the authorities in Lhis respect as follows: - The Court has discretion to set aside or vary a default judgment if the defendant has raised a defence on the merits, or if the applicant has given a reasonable explanation of his failure to enter an appearance and file a defence within the stipulated period. (Sec Patel v Rephidim Institute Limited (2011) Vol. 1 ZR 134) However, the proper disposal of an application to set aside judgment does not require the court conducting a miru-trial. In Royal Brampton Hospital NHS Trust v Hammond, it was held that when deciding whether a defence has a real prospect of success, the coun should not apply the same standard as would be applicable at trial, namely, the balance of probabilities on the evidence presented. Instead, the Court should also consider the evidence that could reasonabl be ex ected to be available at the trial. Another seminal case on the subject under discussion is the case Water Wells Limited v Wilso!J Sgmuel Jackson_ {l984) ZR_ 98 (SC). This was an appeal against the refusal b the Hi h Court to set aside ·ud ent in default of defence. In a jrulgment delivered by the then Deputy Chief Justice Ngulube, it was pointed out that the Cgurt_Qf Appeal ifl_Engliin<Lh.acJJieJcJ in LadJgJ_y_Siu that althou h it is usual on anJW.P.lication to set aside a default ·ud ment not onl to show a defence on the merits but also to Yive an explanation of the default), it is the defence on the merits which is the more imv.ortant to consider. It is therefore R3 3.4 The Defendants must file the Defence and enter appearance within the next 14 days. Delivered at Lusaka this 27th day of February, 2024 C. Chinyanwa Zulu JUDGE RS 3.4 The Defendants must file the Defence and enter appearance within the next 14 days. Delivered at Lusaka this 27th day of February, 2024 C. Chinyanwa Zulu JUDGE R5 3.4 The Defendants must file the Defence and enter appearance within the next 14 days. Delivered at Lusaka this 27th day of February, 2024 C. Chinyanwa Zulu JUDGE RS