Civil Procedure – Review of a judgment or decision – 2 stage process – Application for review and if successful, re-opening of the matter
Civil Procedure – Review of a judgment or decision – Application for review, first stage – Considerations when determining whether review is appropriate
Civil Procedure – Review of a judgment or decision – Re-opening of matter, second stage – Determining what material effect, if any, fresh evidence may have had on initial decision
In 2005, the Appellant lent a sum of US$ 169 500 to the 1st Respondent to enable the 1st Respondent purchase stand 9628 Lusaka. The loan was secured by a mortgage created by the 1st Respondent over stand 9628 in favour of the Appellant. On 12 August 2008, the 1st Respondent sold Stand No 9628 Lusaka to the 2nd Respondent. The 2nd Respondent placed a caveat on the property in the Lands Register. Having become aware of the sale, the Appellant commenced an action requesting the two Respondents to settle the money secured by the mortgage, failing which it should be granted an order to enforce the mortgage by way of sale of Stand No 9628. The 1st Respondent admitted owing the sum of US$ 100 000 but disputed the sum of US$ 69 500. The Court below presided over by Mutuna J rejected the reason given by the 1st Respondent for disputing the sum of US$ 69 500 stating that it did not constitute a justiciable defence. As for the 2nd Respondent, Mutuna J held that had he conducted due diligence on the property before he bought it, the 2nd Respondent would have seen that the property had an encumbrance in the form of a mortgage. The 2nd Respondent’s defence was that he had bought the property in good faith and that the Appellant was aware and acquiesced in the sale of the property. Mutuna, J rejected the 2nd Respondent’s contention and entered judgment for the Appellant.
More than a year later, the 2nd Respondent became desirous of reviewing the judgment under Order 39 of the High Court Rules.ª Seeing that he was outside the fourteen days permitted by Order 39 rule 2 within which to make an application for review, the 2nd Respondent applied
for special leave to file an application for review. In that application the 2nd Respondent exhibited the contract of sale between him and the 1st Respondent and a letter written by the Appellant’s advocates to the 2nd Respondent’s advocates stating that the Appellant had informed them that the 2nd Respondent was intending to remit the Appellant’s full interest in the sum of US$ 169 500 directly to the Appellant. The Appellant’s advocates in that letter were enquiring as to when the money was likely to be remitted. The 2nd Respondent did not exhibit the two documents when the matter was first heard but the letter was exhibited by the Appellant in its originating summons. Mutuna, J, granted the 2nd Respondent leave to file the application for review. The court below, presided over by Nyambe, J heard the matter de novo on affidavit evidence only and came to the conclusion that, since a shareholder in the Appellant company was also a shareholder in the 1st Respondent company, then the Appellant had full knowledge of and acquiesced in the sale of the property to the 2nd Respondent. She held that the 2nd Respondent had obtained good title to the property. As for the Appellant’s claim for the sum of US$ 69 500 the learned judge held that the issue was an internal affair between the two sister companies. The learned judge therefore dismissed the Appellant’s action, hence this appeal.
ªOrder 39 rules 1 and 2 of the High Court Rules provide as follows:
1. Any Judge may, upon such grounds as he shall consider sufficient, review any judgment or decision given by him (except where either party shall have obtained leave to appeal, and such appeal is not withdrawn), and, upon such review, it shall be lawful for him to open and rehear the case wholly or in part, and to take fresh evidence, and to reverse, vary or confirm his previous judgment or decision:
Provided that where the judge who was seised of the matter has since died or ceased to have jurisdiction for any reason, another judge may review the matter.
2. Any application for review of any judgment or decision must be made not later than fourteen days after such judgment or decision. After the expiration of fourteen days, an application for review shall not be admitted, except by special leave of the Judge on such terms as seem just.
1. There are principles that give guidance as regards how order 39 should be applied in practice. First, the application for review is heard. At this stage, the applicant must show to the satisfaction of the judge the grounds that warrant the review of the decision. If those grounds are shown then the order for review is granted. The next stage is now for the judge to re-open the matter and review the judgment. Lewanika v Chiluba (1998) ZR 79 followed
2. During an application for review the following should be established:
2.1 that fresh evidence has been discovered which would have had material effect on the judgment or decision;
2.2 that the evidence has been discovered since the judgment or decision;
2.3 that such evidence could not, with due diligence, have been discovered before; and
2.4 that such evidence does not comprise events that have occurred for the first time after delivery of judgment.
3. When it comes to the actual review, care must be taken to ensure that the same is premised on determining what material effect, if any, the fresh evidence may have had on the judgment or decision, otherwise the whole exercise will amount to merely providing a dissatisfied litigant an opportunity to have a second bite and argue for alteration of the judgment in order to bring about a result that he considers more acceptable.
4. The letter from the Appellant’s advocates was exhibited by the Appellant. Therefore, it could not be said to be fresh evidence. As regards the contract of sale, all the parties were aware of its existence from the commencement of the action. In the circumstances, it cannot be said that the contract of sale was a piece of evidence that was only discovered after the judgment. Therefore, the application did not meet the threshold, and the lower court should not have proceeded to review the judgment.
5. Having proceeded to review the judgment, the lower court’s concern should have been to ascertain in what material respect the evidence introduced would have had on the judgment being reviewed. In this case, the contract of sale which the 2nd Respondent exhibited merely established the fact that the 2nd Respondent bought the property from the 1st Respondent. This was a fact which was not in dispute when the matter was before Mutuna, J. Mutuna, J arrived at his judgment with full knowledge of the existence of the contract by which the 2nd Respondent bought the house from the 1st Respondent. The subsequent production by the 2nd Respondent of the contract did not help him at all because, even if the same had been produced before Mutuna, J, it would not have affected his decision.