RI

IN THE HIGH COURT OF ZAMBIA 2014/HP! 1859

AT THE PRINCIPAL REGISTRY
HOLDEN AT LUSAKA
(Civil Jurisdiction)

IN THE MATTER OF: THE REMAINING E. . I F FARM No

OF ZAA4
396a/A/3/22 k _&URT
PRINCIPAL
BETWEEN:
U5 SEP 2017
LINDSAY GORDON PIERCE 11 PLAINTIFF
REGISTRY
(Suing as executor of the estate of Jo
Hendrix Young) OX5(JO57,

AND

JOHANNESS DANIEL YOUNG DEFENDANT

BEFORE HON MRS JUSTICE S. KAUNDA NEWA THIS 5th DAY OF

SEPTEMBER, 2017

For the Plaintiff : Mr T. Chali, H.H. Ndholvu and Company

For the Defendant : Mrs V. Sichone, The otis, Mataka and Sampa Legal
Practitioners

R ULING

LEGISLATION REFERRED TO:

1. The High Court Rules, Chapter 27 of the Laws of Zambia

2. The Rules of the Supreme Court, 1999 edition

This is a ruling on an application made by the Defendant to set aside the

ex-parte order restoring the matter to the active cause list, made

pursuant to Order 35 Rule 6 of the High Court Act, Chapter 27 of the

Laws of Zambia as read with Practice Direction No 11 dated 12th

January, 1968, and Order 32 Rule 6 of the Rules of the Supreme Court,
 R2

1999 edition. Counsel relied on the affidavit filed in support of the

application, as well as the skeleton arguments and list of authorities,
filed on 27th July, 2017.

Counsel for the Plaintiff in response stated that the gist of their
opposition was that the Defendant had not shown what prejudice would
be suffered as a result of the matter having been restored. He added that
it was the Defendant's submission that the ex-parte order to restore the
matter that had been obtained by the Plaintiff had circumvented the
order for costs, but their argument was that costs are an order of the
court. That in this case the court did not any order for the payment of
costs when it struck out the matter or make an order granting costs
which were a condition precedent to the restoration.

Counsel went further to submit that this is a 2014 matter where trial
had not commenced, largely because of the delaying tactics implored by
the Defendant. Therefore the matter having been restored, it should
proceed to trial, as this application was an attempt to have it removed
from the active cause list. It was also Counsel's submission that this
court was on terra firma when it restored the matter, and that there a
number of authorities, as well as Article 118 of the Constitution which
state that matters must be heard on their merits, and not on procedural
technicalities.

Further in the submissions, Counsel stated that the ex-parte order

restoring the matter should not be set aside as it was properly ordered by
the court, and that the court had the power to hear the application inter
partes but did not see the need to do so. That this could not be
challenged.
 R3

In reply, Counsel for the Defendant submitted that prejudice is not a

requirement that needs to be demonstrated when applying to set aside
such an order. That in this case the application had been occasioned by
the fact that the Plaintiff had not complied with the rules of the court. It
was also Counsel's submission that the letter from the Judiciary stated
that matters scheduled for 16th June, 2017 were to proceed, except those
where Counsel were attending the seminar.

That in this case Counsel for the Plaintiff did not communicate that he
was attending the seminar, and even if he had, he should have applied to
adjourn the matter by filing the requisite notice, or alternatively should
have communicated with Counsel for the Defendant, so that they could
have applied to adjourn the matter.

Counsel stated that the law does not envision restoration of a matter ex-
parte, and therefore such an application should not have been made by
the Plaintiff. Counsel further noted that the affidavit in opposition to the
application erroneously states that orders are made at the court's
discretion, either ex-parte or inter partes. However their argument was
that orders are made according to the law, and the ex-parte order should
be set aside. She further stated that they did not object to the restoration
of the matter, but asked for costs of the matter having been struck out,
and associated with the restoration.

Counsel went on to state that this application is not aimed at preventing

the matter from being restored, but that the procedure should be
followed, and the costs paid for the irregularly restored order. That if the
order is set aside, the Plaintiff will be at liberty to apply to restore the
matter, and the matter will not be defeated by technicalities, as Counsel
 R4

can make the application inter partes. It was prayed that the application

be granted with costs.

I have considered the application. Order 35 Rule 6 of the High Court

Rules, Chapter 27 of the laws of Zambia state that;

"Any civil cause struck out may, by leave of the Court, be

replaced on the cause list, on such terms as to the Court may

seem fit".

Practice Direction No 11 dated 12th January, 1968 states that;

The attention of practitioners is invited to the following practice

and procedure to be adopted when issuing ex-applications:

1. All ex-parte applications which would, if made in england, be

made at the Queen's Bench Division, shall be made in

accordance with the practice and procedure at present in

force in England (See Supreme Court Practice, 1967, Volume

1- Order 32, Rules 1-6)

2. The affidavit of facts, etc, supporting the application (be it a

Judge at chambers or to a Registrar) shall be left with the

Assistant Registrar (Civil), or in his absence with the Officer

in Charge of the Principal Civil or District Registry in which

the action is proceeding. There will be no need for the applicant to

attend unless a Judge or Registrar otherwise directs.

3. The Judge's or Registrar's decision will be endorsed on the

affidavit and the applicant shall draw up the requisite Order,

unless a formal Order is not required.

4. Where circumstances require it to be so, the Judge or

Registrar may direct that a summons be issued.

 R5

Practice Direction dated 14th November, 1960 and appearing at

page 73 of the Selected Judgments of Northern Rhodesia, 1960, is
hereby revoked.

Order 32 Rule 6 of the Rules of the Supreme Court, 1999 edition

provides that;

"The Court may set aside an order made ex parte".

My understanding of the Practice Direction is that any application made

ex-parte must be in line with the provisions of Order 32 Rules 1 to 6 of
the Rules of the Supreme Court of England, which is what the Defendant
argued.

Order 32 Rule 1 of the said Rules of the Supreme Court, 1999 edition
provides that;

"Except as provided by Order 25, rule 7, every application in

Chambers not made ex parte must be made by summons".
Order 25 Rule 7 of the Rules of the Supreme Court, 1999 edition on the
hand states that;
(7• (1) Any party to whom the summons for directions is

addressed must so far as practicable apply at the hearing of

the summons for any order or directions which he may desire
as to any matter capable of being dealt with on an
interlocutory application in the action and must, not less
than seven days before the hearing of the summons, serve on
the other parties a notice specifying those orders and
directions in so far as they differ from the orders and
directions asked for by the summons.
(2) If the hearing of the summons for directions is adjourned
and any party to the proceedings desires to apply at the
 R6

resumed hearing for any order or directions not asked for by

the summons or in any notice given under paragraph (1) he

must, not less than seven days before the resumed hearing of

the summons, serve on the other parties a notice specifying

those orders and directions in so far as they differ from the

orders and directions asked for by the summons or in any

such notice as aforesaid.

(3) Any application subsequent to the summons for directions

and before judgment as to any matter capable of being dealt

with on an interlocutory application in the action must be

made under the summons by two clear days' notice to the

other party stating the grounds of the application".

The Defendant in the skeleton arguments made reference to Order

32/6/5 of the Rules of the Supreme Court which provides for instances

in which applications may be made ex-parte. It states that;

"The following are the most ordinary ex parte applications

made in Chambers without a summons:

To the Judge -

(a)or injunctions (0.29, r.1, and the S.C.A. 1981, s.37(1)).

(b) for appointment of a receiver other than a receiver by way

of equitable execution (0.30, r.1, and the S.C.A. 1981, s.37

(1)).

(c) for leave to make application for judicial review (0.53,

r.3).

(d)for writ of habeas corpus (0. 54, r.1).

(e) for leave to a solicitor to commence an action to recover his

costs before the expiry of one month from the delivery of his

bill (Solicitors Act 1974, s.69 (1) proviso (Vol. 2, Section 15).
 R7

For the practice see Part B of the Practice Direction at para.

32/6/9 below.
To the Master -
(a)for leave to issue and serve a writ, concurrent writ,
originating summons or concurrent originating summons, out
of the jurisdiction (0. 6, rr.6 and 7, and 0.11).
(b)for renewal of writ (0. 6, r.8).
(c) for service of writ for possession of vacant premises (0. 10,
r.4).
(d) for service out of the jurisdiction of any summons, notice
or order (0. 11, r. 9 (4)).
(e)for leave to give late acknowledgment of service (0.12, r.6).
) to join causes of action (0. 15, r.1).
(g) for leave to add as a party the personal representative of a
deceased party or the trustee of a bankrupt party, etc. and to
carry on the proceedings (0. 15, r. 7).
(h) for leave to defend an action for possession of land by a
person in possession (0. 15, r. 10).
(i)for leave to issue a third party notice (0. 16, r.2) or afourth
or subsequent party notice (0. 16, r. 9).
(j) to amend a writ or originating summons before service
where leave is required (0.20, rr. 1, 5).
(k) to file a defective affidavit (0.41, r.4).
(1) for leave to issue a writ of possession, except in mortgage
actions (0.45, r.3).
(m)for leave to issue a writ of specific delivery of goods where
the judgment or order is for the delivery of the goods or
payment of their assessed value (0.45, r.4 (2)(b)).
 R8

(n) for leave to issue a writ of fl.fa. in certain specified cases,

e.g. after six years from date of judgment (0.46, r.2).
(o) for leave to issue a writ of execution in aid of another writ
of execution (0.46, r.3).
(p) for examination of judgment debtor (0. 48, r. 1).
(q) for garnishee order nisi (0. 49, r. 2).
(r) for a charging order nisi on a beneficial interest (0.50,
r.1).
(s) for a charging order nisi on securities (0. 50, rr.1 (3), (c),
(5)).
(t) for a charging order nisi on an interest held by a trustee
(0. 50, r.3).
(u) for appointment of receiver to enforce a charging order on
land (0.50, r.9) or by way of equitable execution (0.51).
(v) for an injunction which is ancillary or incidental to a
charging order on a beneficial interest, or on an interest held
by a trustee (0.50, r.9) or to an appointment of a receiver by
way of equitable execution (0.51, r.2).
(w)for substituted service of a writ and other proceedings
(0. 65, r.4).
(x) for examination of a witness or the production of
documents and for other classes of orders pursuant to a
request for the purposes of civil proceedings instituted or
contemplated in a foreign Court or a Court of another part of
the U.K.
(y)for registration of a foreign judgment (0. 71, r.2).
(z) for registration of a foreign award as a judgment (0. 73,
r. 8).
(aa) for registration of an arbitration award (0. 73, r. 10).
 R9

(bb) for rectification of register of deeds of arrangement

(0. 94, r. 4).

(cc) for registration of a bill of sale after time has expired

(0. 95, r.1).

(dd)for entry of satisfaction of a bill of sale (0.95, r.2).

(ee) for extending the period for making an application for

recording a charge under s.1 (5) of the Industrial and

Provident Societies Act 1967, or for rectifying any omission or

mis-statement in such application (0.95, r.5).

(fJ) for a charging order for solicitors costs for property

recovered or preserved pending the hearing of a summons for

such charge (0.106, r.2, and Solicitors Act 1974, s.73).

(gg) for inspection of bankers' books (Bankers' Books Evidence

Act 1879, s.7).

(hh) for directions relating to funds in Court which are being

administered by a Master for the benefit of minors.

There is nowhere in this provision that it is stated that these instances

are exhaustive on when applications may be made ex-parte, or that the

court where such applications are made ex-parte cannot order that they

be heard inter partes. Therefore in my view the court retains discretion to

hear certain applications ex-parte going by Order 32/6/2 of the Rules of

the Supreme Court, 1999 edition which provides that;

"Rule 1 determines the modes in which applications in

Chambers may be made, namely, in one of three ways, ex

parte, or by summons, or by notice under the summons for

directions. In exceptional cases in the QBD applications may

be made on an ex parte summons, e.g. for further directions

 RiO

for re-investment of minors' funds in Court or upon directions

for such investment by the trial Judge
The Court has power to direct that an application made ex
parte should be made by summons, in order to give the other
party an opportunity of being heard. (This power is not
expressly contained in the rules as it was under the former
0.54, r.2). Of course this power is not exercised where the ex
parte order is itself in the nature of an order nisi directed to
the other party to show cause or where there is no other party
affected until the ex parte order is served upon him".

In light of the above, unless the law provides that an application shall be
made ex-parte, in which case the court has no jurisdiction to order that
it be heard inter partes, an ex-parte application may be made, but the
court retains the power to order that it be heard inter partes.

In this case the Plaintiff made an ex-parte application to restore the

matter which I heard ex-parte and granted the order of restoration. As
rightly argued by Counsel for the Plaintiff, this was well within my
powers as set out in Order 32/6/2 of the Rules of the Supreme Court,
1999 edition. I therefore do not agree with Counsel for the Defendant's
argument that the ex-parte order restoring the matter was done outside
the law. When I made the order striking out the matter from the active
cause list on 16th June, 2017, it was with liberty to restore within thirty
days, failure to which the matter would be dismissed for want of
prosecution, with costs to the Defendant.

Counsel for the Plaintiff applied ex-parte to restore the matter on 6th
July, 2017, which order I granted. Counsel for the Defendant in the
 Ru

affidavit filed in support of the application to set aside the ex-parte order
to restore the matter in paragraph 11 deposes that she was surprised
that a notice of hearing was furnished to her by a legal assistant after the
matter was struck off the active cause list, hence her discovery that the
matter was restored ex-parte.

That this had shocked her, as Counsel for the Plaintiff had written to her
seeking agreement that the matter be restored by consent, and they had
responded that they were amenable to execution of the order provided
that the Plaintiff bore the costs of the restoration. That it was Counsel's
belief that the ex-parte order to restore the matter was an attempt to
circumvent the payment of costs to the Defendant, and it should be set
aside, as it was irregularly made.

I have already stated that law empowers the court to hear an application
ex-parte in certain circumstances. This entails that the court retains
discretion to decide in what circumstances this can be done. In this case
it was redundant for me to hear the Plaintiff's application to restore the
matter inter-partes, as I gave conditions for restoration of the matter, in
line with Order 35 Rule 6 of the High Court Rules, Chapter 27 of the
Laws of Zambia.

These conditions were that the restoration be made within 30 days of the
matter being struck out, and this order was complied with. The costs
that were awarded to the Defendant were not ordered to be paid as a
condition of restoration. Order 62 Rule 8 of the Rules of the Supreme
Court, 1999 edition provides that;

(1) Subject to paragraph (2), the costs of any proceedings

11

shall not be taxed until the conclusion of the cause or matter

in which the proceedings arise.
 R12

(2) If it appears to the Court when making an order for costs

that all or any part of the costs ought to be taxed at an
earlier stage it may, except in a case to which paragraph (3)
applies, order accordingly.

(3) No order may be made under paragraph (2) in a case where

the person against whom the order for costs is made is an
assisted person within the meaning of the statutory
provisions relating to legal aid".

Therefore going by the above provision, the costs that I awarded to the
Defendant when I struck out the matter can only be recovered at the end
of the proceedings, and there was therefore no basis for the Defendant to
make the application currently before me. I accordingly dismiss the
application for want of merit, with costs to the Plaintiff. This matter is
scheduled to come up for trial tomorrow the 5th of September, 2017 for
trial at 09:00 hours. However in view of the fact that the ruling may not
have been uplifted by the parties in advance of the scheduled hearing
date, I direct that the matter shall come up on Monday 20th November,
2017 at 09:00 hours for trial.

DATED THE 5th DAY OF SEPTEMBER, 2017.

S. KAUNDA NEWA
HIGH COURT JUDGE