Ecobank Zambia Limited v National Association of Savings and Credit Union (2022/HPC/0519) (3 October 2023) – ZambiaLII

SIN THE HIGH COURT OF ZAMBIA 2022/HPC/0519 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 0 3 OCT 2023 ECOBANK ZAMBIA LIMITED •'MtRC!AL llEGr PLAINTIFF O♦ NATIONAL ASSOCIATION OF SAVINGS AND CREDIT UNION DEFENDANT Dellvered in chambers befo•c the Honourable Mn. Ju•ticc K. E, Mwenda-Zimha on the 3"' day or Oetober, 2023. Por the Plaintiff Mr. N.Ng'o.ndu ofShamwo.na and Company. For the Defendattt Mr. E. S. Lilo.nda ofM ufenga Mundo.sh/ Lego.I Practitioners RULING cases referred to: 1.. BGn(amfn Ma:cfo11 v. UnitedA(ri<!a Co. Ltd {196113 ALL.£R 1l69 z. Afiic;gn Banking Corporation Zambia p. Muben.de Country Lodge Llm.ftad, Appeal No. 116 of.2016 3. .zRA o. T a.n.d G 2'ranspon 120071 ZR 13 4. NFC Afrlca Mining Plc v, Trtchro Zcvnb#{l Llmltsd 120091 ZR Z36 6. Barclays Bqnk Pk v . ..T<!N!ffl41ah Nlouu. and 41 oth<!r.o. SCZ/09/21/2019 Legislation referred to: The Htgh Court Rulgs. 0,41:r 49 Rut.. 3. Otdl!r Z rales l and 5 1.0 INTRODUCTION 1. 1 This is a Ruling on the defendants' application for an order to dismiss matter for want of jurisdiction. The defendant states • •• -., that the plaintiff commenced this action during the Michaelmas Vacation without leave of Court. 1.2 The background to this case is that the plaintiff commenced this matter on the 251h of August, 2022. The defendant entered appearance on 8th September, 2022 and an order for directions was later given. Before the date set for trial, the defendant took out this application. 2.0 THE DEFENDANT'S CASE 2.1 The defendant contended that the plaintiff ought to have sought leave to commence this action as it was made 12 days before the termination of the Michaelmas Vacation. 3.0 THE PLAINTIFF'S CASE 3.1 The plaintiff argued that the summonses filed before Court did not state the question for determination by the court as required under Order 14A. Further, that the effect of non compliance with the rules on commencement of an action during the Michalemas Vacation is voidable and a mere irregularity. The plaintiff heavily relied on Benjamin Macfoy v. United Africa Co. Ltd111 , among other authorities. -R2- .. 4.0 CONSIDERATIONS. FINDINGS AND CONCLUSION 4.1 l have reflected over the application by the defendant, the parties' affidavits, written and oral arguments and the authorities cited. 4.2 The plaintiff first contends that the question for determination has not been stated. A review of Order 14A Rule 2(5} uses the words "the question of law or construction to be detennined by the Court under the Order should be stated orJ ormulated in clear, careful and precise terms so that there should be no difficulty or obscurity, about what is the question that has to be determined ... " 4.3 What I gather from the above rule is that the issues for determination before the Court should be clear. The defendant has put the issues in form of grounds as follows: 1. That the plaintiff did not obtain leave of Court to file pleadings during the Mlchalemas Vacation; and 2. That this matter is improperly before this honourable Court for want of compliance with the High Court Rules. 4.4 In my view, the grounds, as stated above, are clear in their import. The plaintiff was put to notice that the issue for determination is whether the matter was properly before the Court on grounds that leave to commence process during the -R3- •. Michaelmas Vacation was not obtained from Court. I am therefore of the view that this Court was properly moved and I will determine the issue. 4.5 Coming to the main issue in contention, Order 49 rule 3 of the High Court Rules says that- "3. (1) The vacations to be observed In the several courts and offices of the High Court shall be four in every year, that is to say, the Easter Vacation, the Whitsun vacation, the Michaelmas vacation and the Christmas vacation. The Easter vacation shall commence on Good Friday and terminate on Easter Tuesday; the Whitsun vacation shall commence on the Saturday before Whit Monday and shall terminate on the Tuesday after Whit Sunday; the Michaelmas Vacation shall commence on the 8th August and shall terminate on the 6th September; and the Christmas Vacation shall commence on 11th December and terminate on the 9th January." 4.6 Further, Order 2 rule 5 of the same Rules says- "Save as In the last preceding rule mentioned, the time of the Michaelmas and Christmas vacations in any year shall not be reckoned in the computation of times appointed or allowed in accordance with these Rules for amending, delivering or ftllng any pleadings unless otherwise directed by the Court or a Judge." (underlining for emphasis only] 4. 7 In terms of computation of time, Order 2 rule 1 puts it this way- "1. Where, by any section of the Act, or any order or rule of court, or any special order, or the course of the Court, any llmlted time from or after any date or event is appointed or allowed for the -R4• •. doing of any act or the laking of any proceeding, and such time is not llmited by hours, the following rules shall apply: (a) The limited time shall not include the day of the date or of the happening of the event, but shall commence at the beginning of the day next following that day. (b) The act or proceeding must be done or taken at latest on the last day of the limlted time. (c) When the limited time is less than six days, the followlng days shall not be reckoned as part of the time, namely, Saturdays, Sundays and any public holidays. (d) When the time expires on one of those days, the act or proceeding shall be considered as done or taken In due time, If it is done or taken on the next day afterwards, not being one of those days." 4.8 From the above, it is clear that the counting of the 11 days when leave was not required was to include the 26th of August, 2022 and the 6th of September, 2022, both dates inclusive. When these dates are counted, the number is 12 meaning that the plaintiff required leave to commence process on the 25th of August, 2022. 4.9 The question I ask myself is; what is the effect of filing pleadings during the Michaelmas Vacation without leave? 4.10 The parties both relied on the case of Macfoy v. United Africa Co. Ltd11>. In that case, the Privy Council held that- -RS- J ··' "whether the judgment in default of defence should be set aside was a matter for the discretion of the court, the delivery of the statement of claim In the long vacation being a voidable act, not a nullity, in the circumstances of this case, the West African Court of Appeal had rightly exercised Its discretion." 4.11 Lord Denning went on to add that- "The defendant knew when the statement of claim was delivered to him and he knew it was then vacation. He made no application to set aside the statement of claim as having been delivered irregufarly: he did not raise the pojnt in any way until he appealed In this court to argue the appeal. over ejght months after the statement of claim had been delivered. Instead ofa pplying to have the statement of claim set asjde. he allowed judgment to go against him by default and then moved to have the judgment set aside ..." (underlining for emphasis only] 4.12 It should be noted that the circumstances of the Macfoy case are different from the present ones. Firstly, the decision emanates from a court that was dealing with an appeal against the entry of judgment in default of defence. The issue did not arise in a first instance court. Secondly, in the Macfoy case, the defendant did not apply to set aside the statement of claim. Judgment in default was entered against him and after failing to have it set aside, he decided to raise the issue of lack of direction by a Court or a Judge (leave) on appeal as a ground to have the judgment in default of defence set aside. It should further be noted that the sentiments by Lord Denning were that the -R6- ; defendant should have applied to have the statement of claim set aside but he allowed judgment in default to be entered against him. 4.13 In the present case, the defendant has challenged the statement of claim. I note that the defendant filed its defence and its bundle of documents. However, it is settled that before a defendant can launch an application under Order 14A, they ought to file a notice of intention to defend. The Supreme Court in Afrjcan Banking Corporation Zambia v. Mubende Country Lodge Limited. 121 interpreted the notice of intention to defend as a defence. Therefore, the issue of taking a fresh step cannot arise. 4.14 I must add that the Supreme Court of Zambia has had occasion to deal with the effect of failure to seek leave of Court. This was in ZRA v. T and G Transport.<!> In that case, the Court held that- "the requirement of leave to appeal goes to the jurisdiction of the court of appeal ... the jurisdiction cannot be conferred by the express consent of the parties" 4.15 The Supreme made similar sentiments in NFC Africa Mining Pie v, Techro Zambia Umlted1•> that- "Rules of the Court are intended to assist in the proper and orderly administration of justice and as such they must be strictly followed ... " -R7- 4.16 The Court repeated its opinion in Barcfays Bank Pie v. Jeremaiah Nlovu and 41 Others,1~> when it put it this way- "The absence of leave to appeal goes to the very core of the appellate court to deal with the appeal. Put nakedly, where leave has not been granted, the appellate court has no jurisdiction to entertain the appeal." 4.17 I note that the above two decisions are dealing with leave to appeal. However, the principle on the effect of the lack of leave apply. The fact that there was no Leave obtained in this matter entails that this Court has no jurisdiction to deal with the matter. I must add that even if I was to agree with the plaintiff in this case, it is not possible to cure the defect at this page. The matter was already commenced and there is no way leave can be granted retrospectively. There is no way to cure this defect apart from asking the plaintiff to commence a fresh action. 4.18 l am, therefore, inclined to agree that this is an appropriate matter where the pleadings ought to be set aside. The defect cannot be cured in the circumstances of this case. The net effect is that the matter is dismissed. However, as it has not been heard on the merits, the plaintiff is at liberty to commence a fresh action. -RB· : 4 .19 I award costs to the defendant only up to the time it filed its defence and for this application as it could have made the application after filing its defence. These are to be taxed in default of agreement Delivered at Lusaka this 3•d day of October, 2023. K. E. Mwenda-Zimba HIGH COURT JUDGE -R9·