CONSENT JUDGMENT AND SETTING ASIDE Interesting developments of yesterday have given rise to lots of opinion, especially among different commentators on advice from some lawyers that the Consent Judgment signed by Judge Mulenga can only be overturned if Hon Miles Sampa, who has been mentioned in the Consent Judgment, commence a fresh action and that the Court can reject an application to set aside such a judgment if it wishes. It has been said that Miles Sampa has not started a fresh action. I say, that kind of reasoning is only better for lawyers whose judgement is beclouded by their own political interests or when they know they can control a court. An impartial court will look into the law as it is and examine various judicial precedents on this matter. If the legal team representing Miles Sampa, mentioned in the judgment but was not part to the cause, has not had his say nor signed a Consent Judgement, are good enough they may approach it from one option where they can apply to have it set aside pursuant to Order 35 Rule 5 of the High Court Rules Chapter 27 of the Laws of Zambia. Order 35 provide rules that govern the non-attendance of parties at hearing”. Under Rule 3, if the Defendant (and note must be taken here that Miles Sampa whose been made part to the Consent Judgement was not part to the initial cause) does not appear and there is proof of service, the Court may proceed to hear the Plaintiff and give its Judgment. It is a judgment delivered in the circumstances under Rules 3 that may be set aside by the Court on good cause being shown. There are equal chances, in my opinion, that the provision of order 35 Rule 5 may be invoked in this case. It seems though that even the consent Judgement signed by Judge Mulenga fails short of the limitations on which matters can be resolved under Order 42 Rule 5A of the White Book. The Law Asociation of Zambia is having a serious challenge in such a matter as this is matter that they need to clearly follow and understand how the Consent Judgement was obtained under such circumstances but I dont expect them to do that, LAZ always waits for public debate and outcries before stepping in. The Association is not proactive. In a situation where parties seek to settle a matter in dispute (and I say the current dispute doesnt fall in this category) between them, the operative legal provision is Order 42 Rule 5A of the White Book, 1999 Edition which provides: “(1)….where all the parties to a cause or matter….are agreed upon the terms in which a judgment should be given, or an order should be made, a judgment or order in such terms may be given effect as a judgment or order of the court by the procedure provided in rule 5... (3) Before any judgment, or order to which this rule applies may be entered, or sealed, it mu st be drawn up in the terms agreed and expressed as being “By Consent” and it must be indorsed by solicitors acting for each of the parties”. In the case of Kalyoto Muhalyo Paluku v. Granny’s Bakery Limited and Others (2006) Z.R. 119, the parties, excluding the appellant, negotiated and drew up what was referred to as “Consent Order” in the absence of the appellant. The Supreme Court held, citing Order 42 Rule 5A, (1) and (3), that the appellant was right in challenging the consent order and that the lower court rightly set it aside. In the earlier case of London Ngoma and Others v. LCM Company Limited and UBZ (In Liquidation) (1999) Z.R. 75, the Supreme Court held that a Consent Judgment could be set aside by parties who were not part to it and who were joined later to the action. On the facts of this case, and on the foregoing authorities, I find this to be an appropriate case in which if our Court can show impartiality, may be able to set aside the Consent Judgment signed yesterday. Stare decisis (to stand by decisions and not disturb the undisturbed), a legal principle by which judges are obliged to respect the precedent established by prior decisions, may need to be followed in matters like the current case. In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters. The onus though is for Hon Miles Sampa to apply to be adjoined to the consent judgment proceedings and apply to have it set aside. A good lawyer would not commence fresh action because a stay may not be given in the fresh action. Finally, let me repeat what I have constantly said before about the problem of the Presidency in the PF (and MMD too). The problem in the PF is a political problem that requires a political solution and leadership on the part of everyone will be cardinal in this matter. Running to the Courts every day to give a legal solution to the political solution isnt helping anyone at all within the PF and its general membership. Good morning my Facebook family.
Posted on: Thu, 04 Dec 2014 08:08:31 +0000