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The events that gave rise to this appeal spanned three sittings of the court below. On 25 April, 2012, the court sat for some sort of scheduling conference. At the time, the Appellant was wrongly cited as 1st defendant and John Longa Mulutula was cited as 2nd defendant. The Appellant and his advocates were not present. The court went ahead and set the trial date for 5 June, 2012. On that date again the Appellant and his advocates were not present. However, on this particular occasion, the 1st Respondent's advocate explained to the learned judge that the Appellant's advocates were appearing before another judge. The 1st Respondent's advocate went on to tell the judge that the 1st Respondent was also unable to proceed with the hearing because he was unwell. The court then adjourned the matter to 17 July, 2012. When the matter came up for hearing on 17 July, 2012, the Appellant and his advocates were not present. This time the 1st Respondent's advocate brought to the attention of the judge, a letter which he had written to the Appellant 's advocates informing them about the date of hearing. Counsel argued that no reason for the Appellant’s absence was furnished and prayed that the matter proceed, considering that it was a very old matter. The Court noted the affidavit of service and stated that the Appellant had been consistently absent. The Judge ordered that the matter would proceed and went on to receive evidence from the 1st Respondent and then reserved the judgment to a later date. In its reserved judgment, the court below went on to give further reasons to justify why it had decided to proceed in the absence of the other parties such as, the Appellant had not filed a defence and bundles of pleadings and also that the matter was very old and several applications had been made over the years. The court went on to say that there had been a total disregard in defending the matter. Attempts were made by the Appellant to appeal but eventually the Appellant unsuccessfully applied to the court below to set aside the judgment. The court dismissed the application, this time imputing on the part of the Appellant, unreasonable delay, malafides and improper conduct. According to the court below, that is why it found nothing to compel it to treat the Appellant favourably and allow another adjournment. The Appellant appealed.
1. Not all the reasons that the learned judge used to justify his decision to proceed in the absence of the Appellant were revealed at once. Instead, they were revealed piecemeal; in the judgment rendered and the rulings of the subsequent applications that the Appellant made to the court. When a trial court decides to proceed in the absence of a party, all the reasons for its decision must be revealed on the record, there and then. The court should not give reasons in subsequent applications as if they are after-thoughts meant to justify its refusal to set aside the default judgment.
2. A judgment that is obtained in the absence of a party may be liable to set aside. When dealing with applications to set aside such a judgment, the overriding concern is that matters should be decided on their substance and merit. Hearing a matter on the merits means that both sides must be heard. In this case, the only reason that the court below revealed for its decision to proceed in the absence of the Appellant and his co-defendants was that they had been consistently absent and that they had failed to appear on 17 July, 2012 even after being served with the hearing date. RDS Investments Limited v Moon Jelly, Ouseph Joseph Appeal No 52 of 1998 followed
3. That default alone was not sufficient to earn the Appellant the tag of a persistent absentee; or for the court below to say that there had been total disregard in defending the action. In fact, some of the reasons that the court below gave to justify the step it took were influenced by the confusion that was created by the wrong citation of the
parties; the Appellant in particular. Had the court below taken care to study the record and set it straight, it would have discovered that the Appellant was in this action as attorney for John Longa Mulutula, who had already filed a defence and bundles of documents. It would consequently not have said that the Appellant had not filed a defence and bundles of pleadings; a statement which appears to have influenced its view that there had been total disregard in defending the action.
4. The default of 17 July, 2012 did not justify the conduct which the court below imputed of the Appellant. Hence, even though the court below subsequently rejected the explanation by the Appellant for his failure to attend court on 17 July, 2012, that should only have resulted in the condemnation of the Appellant in costs. Water Wells v Jackson (1984) ZR 98 and Mwambazi v Morrester Farms Limited (1977) ZR 108 followed