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Central and Provincial Agencies (1983/HP/1490)  ZMHC 8; (1983) Z.R. 152 (H.C.) (29 November 1983)
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CENTRAL AND PROVINCIAL AGENCIES (1983) Z.R. 152 (H.C.)
29TH NOVEMBER ,1983
Courts - Court process - Abuse of - What amounts to.
Civil Procedure - Judgment in defect of appearance - Application to set aside - Existence of triable issues - Effect of.
Costs - A ward of - Liability of party abusing court process.
(plaintiff ) instituted fresh proceedings, obtaining and executing
judgment while fully aware that the original
proceedings in the
same action, were still pending in the High Court. The appellants'
(defendant) application to the Deputy
Registrar to set aside the
judgment obtained in default of appearance was dismissed on the
grounds that the appellant had
disclosed no proper defence.
For the respondent: T. Chalansi, Chalansi and Co.
Zambia Breweries Limited (hereinafter referred to as the
defendant) appeals against the decision of the Deputy
dismissing the defendant's application to set aside the judgment
entered in default of appearance on 13th November,
leading to the appeal before this Court are:
On 27 October,
1983, the respondent, Central and Provincial Agencies Ltd.
(hereinafter referred to as the plaintiff) issued
endorsed writ against the defendant claiming K2,050,000.00 being
rental charges for the use of the plaintiff's
equipment as listed
in the particulars of the claim.
The said writ,
according to the certificate of service, was served on the
defendant on 28th September, 1983.
October, 1983, the plaintiff obtained judgment in default of
October, 1983, upon the plaintiff's application a writ of fi.fa
The bailiff on the same day i.e. 19th October, 1983, went to the defendant's premises and levied execution.
defendant on 21st October, 1983, issued a summons applying to set
aside the judgment and execution.
On 7th November, 1983, the Deputy Registrar heard the application and dismissed it, ruling:
November, 1983, the defendant filed a notice of appeal and
consequently this appeal.
through the affidavit in support of the application, I have
observed the following which in my view has an important
on the matters concerning the plaintiff or his Counsel's conduct
in this case.
On 9th March,
1983, the plaintiff had issued a specially endorsed writ against
the defendant claiming K188,000.00 based on
the same facts and
matters as in the action before this Court. That action was
1983/HP/ 406 whereas the action in consideration
Court is 1983/HP/1490. The action now before this Court was
instituted on 27th September, 1983, whilst the action
1983/HP/406 was still pending. In 1983/HP/406 the defendant had
entered an appearance.
I have also
noticed that the defendant's address on the writ in 19831 / 406
is materially different from the one on the writ
The action in
1983/HP/406 was not discontinued until 1st November, 1983. Equally
it should be observed that the notice of
required, was not served on the defendant.
From the above it is clear that the plaintiff had instituted the action in the case before this Court whilst the action in 1983/HP/406, based on the same facts and matters, was pending in the High Court. Equally, the plaintiff had obtained judgment in the action before this Court when he or his Counsel, I believe, :must have been aware of the pending action in 1983/HP/406, and that the defendant had entered an appearance 1983/ HP/406. Despite the above, the plaintiff went ahead and found it proper to levy execution in the action before this Court. The execution in this case was therefore levied when the plaintiff's action in 1983/HP/406, based on the same facts and matters, was still pending before the High Court.
above, I can only conclude that the plaintiff or his Counsel in
dealing with the action before this Court in the
manner it was
dealt with, when fully knowing that the suit in 1983/HP/406 based
on the same facts was pending, had some ulterior
have no doubt that the plaintiff in instituting the action now
before this Court when fully knowing that
the action against the
defendant in 1983/HP/406 based on the same facts and matters was
pending, had clearly abused the process
of the Court.
Coming to the
merits of the appeal, will first deal with the learned Deputy
Registrar's ruling dismissing the application
on the grounds that
the defendant had disclosed no proper defence. The learned Counsel
for the defendant submitted that the
affidavit in support of the
application not only disclosed triable issues but disclosed facts
as to how the disputes between
the parties arose and why they
remained unsettled. He claimed that the defendant had at no time
agreed to pay the rent claimed
by the plaintiff. According to him,
the facts disclosed in the affidavits showed that the matters in
dispute were being negotiated
and there was never any agreement
between the parties.
Counsel for the plaintiff submitted that the learned Deputy
Registrar was justified in finding that there was
disclosed. He contended that the defendant had converted the
plaintiff's properties to its use and therefore had
agreed to pay K10,000.00 rent per week as demanded by the
paragraphs 8, 9, 10, 11 and 12 of the affidavit and the documents
in coupon of the application, it is to me clear
as day light that
there are various matters concerning the claims and makers between
the parties that required to be resolved
at the trial. Equally the
plaintiff's affidavit opposition, in particular to paras 6, 7, 8,
9 and 10 and the documents,
my view, support the defendants'
contention than there are contention matters between the parties.
The question of agreement,
rent and the legality of the use of the
properties in question were apparently unresolved and are
therefore obvious triable
to the learned Deputy Registrar, I cannot understand how he,
light of what is stated in the affidavits in support;
opposition, could have come to find that "no proper defence
has been shown to exist". It would have been
assistance to this Court if the learned Deputy Registrar had given
detailed reasons for coming to the conclusion
For the foregoing reasons I have no hesitation in finding that the learned Deputy Registrar had erred in finding that there was no defence shown to exist. In my judgment the learned Deputy Registrar on the facts obtained had clearly erred in refusing to set aside the judgment.
Having come to
the above conclusion, I do not consider it necessary to go into
the question concerning the regularity or irregularity
allow the defendants appeal to set aside the judgment entered on
13th October, 1983. The defendant is granted
to defend subject to the defended entering an appearance within
ten days from today.
In this case I
find it necessary to consider the question of costs concerning
execution levied by the bailiff. The question
of the costs has to
be considered bearing in mind what I have said concerning the
existence of the pending actions 1983/HP/406.
At the time
the action in this case was instituted, the action in 1983/
HP/406, based on the same facts and matters, was pending
High Court. The defendant in 1983/HP/406 had in fact entered an
appearance I have no doubt that the plaintiff or his
fully aware of the situation at the time. On the facts obtained
and taking all the circumstances into account,
I am of the opinion
that the plaintiff or his Counsel had decided to institute the
action in this case despite the other
pending action because it
probably was not going to be easy to obtain easy judgment in the
pending action. To institute the
actions before this Court, whilst
the suit 1983/HP/406 was still pending, was, as I have said
before, clearly an abuse of
the Court's process. Equally to have
obtained judgment and to have issued fi.fa in this case that
situation was correct
spondingly an abuse of the Court's process.
considered view, any party that deliberately abuses the Court's
process ought to suffer in consequential costs. The
this case, went ahead, obtained judgment default and issued
execution despite the pending action in 1983/EP/406,
based on the
same facts, and in which the defendants had entered an
appearance. I do not know if the plaintiff had realised
magnitude of execution costs on K2,050,000.00. In the
circumstances it would, in my view, be totally unjust and
to penalise the defendant in costs. The plaintiff
having deliberately abused the Court's process in this case must
judgment be condemned to consequential costs.
the plaintiff to bear the bailiff's costs on execution. As regards
the costs concerning the application before
the Deputy Registrar
and of the appeal before this Court, I order these costs to be
costs in the cause to the defendant.
further orders that any further proceedings by the plaintiff in
this case be stayed until the plaintiff pays the
and costs the discontinued action. 1983/HP/406. I also order the
bailiff to refund K5,000.00 to the defendant,
recovered from the defendant and order the bailiff to recover full
costs of execution from the plaintiff..