Automated Summary
Key Facts
This document is a High Court of Zambia decision dated June 30, 2021, in case 2019/HP/1505. The court reviewed its earlier ruling from November 24, 2020, which had dismissed the Defendant's applications for leave to adduce evidence by audio-visual technology and for an adjournment. The court granted special leave to review the ruling, finding that the Defendant had discovered fresh evidence in the form of a Chief Justice's Memorandum on the application of The High Court (Amendment) Rules, issued December 28, 2020. This memorandum stated that the High Court (Amendment) Rules did not apply to cases commenced before the enactment of the rules. The court reversed its earlier decision and ordered the reopening of the case for the purpose of taking the Defendant's evidence via audio-visual technology.
Issues
Court determined if Defendant met the five-point test for Special Leave to Review, including whether fresh evidence was material, would have affected the decision, existed prior to the ruling but was only discovered after, and couldn't have been discovered earlier.
Holdings
- The court reversed its earlier decision to dismiss the Defendant's applications for leave to adduce evidence by audio-visual technology and for an adjournment, ordering the reopening of the case for the purpose of taking the Defendant's evidence via audio-visual technology.
- The court granted special leave to review its ruling from 24th November 2020 because the Defendant discovered fresh evidence in the form of a Chief Justice's Memorandum on the application of The High Court (Amendment) Rules, which was issued after the ruling and affected its application.
- The court found that the Defendant's application for an adjournment was not made for mere delay and that the grant of an adjournment would better ensure the hearing and determination of the questions between the parties.
- The court found that the granting of the Defendant's application to adduce evidence by audio-visual technology would not prejudice the Plaintiff in any way, as the Plaintiff was not able to demonstrate how this would cause prejudice.
Remedies
The court granted special leave to review its earlier ruling, reversing its decision to dismiss the Defendant's applications for leave to adduce evidence by audio-visual technology and for an adjournment. The court ordered the case to be reopened for the purpose of taking the Defendant's evidence via audio-visual technology on a date to be advised in due course. Additionally, the court granted leave to appeal.
Legal Principles
The court applied the legal principle of judicial review under Order XXXIX, Rule 1 and 2 of the High Court Rules, which allows a judge to review a judgment or decision under specific conditions. The court established a five-part test for granting special leave to review: (1) fresh evidence must be material, (2) it must have had material effect on the court's decision, (3) it must have existed prior to the decision, (4) it must have been discovered after the decision, and (5) it could not have been discovered before the decision. The court found that the Defendant had met all these conditions with the Chief Justice's Memorandum as fresh evidence.
Precedent Name
- Costellow
- Lewanika v Chiluba
- Lackson Mwabi Mwanza
Cited Statute
- The High Court (Amendment) Rules
- The High Court Rules
Judge Name
Lady Justice P.K. Yangailo
Passage Text
- 5.20 Based on my findings above and in exercise of the discretion conferred upon this Court pursuant to Order XXXIX, Rule 1 of The High Court Rules² cited above, I reverse the Ruling dated 24th November, 2020, in its entirety and order the reopening of this case for the purpose of taking the Defendant's evidence via Audio Video Technology on a date to be advised in due course.
- 5.10 On my analysis of the Chief Justice's Memorandum, I am satisfied that the Defendant has met all the conditions for this Court to consider a Review of its Ruling dated 24th November, 2020, as the Chief Justice's Memorandum on the Application of The High Court (Amendment) Rules¹ is material evidence that offers direction on the application of the aforesaid High Court Rules, which direction has an effect on the Ruling subject of this application. I note further, that the said Memorandum was issued on 28th December, 2020, which date is clearly after the subject Ruling dated 24th November, 2020 and therefore, could not have been discovered prior to the said Ruling. Accordingly, the Defendant's Application for Special Leave to Review the subject Ruling is granted.
- 5.7 Based on the foregoing authorities and in determining whether the Defendant herein should be granted special leave of this Court to Review this Court's Ruling, I have to consider whether the Defendant's application has satisfied the following test: 1. That the fresh evidence is material; 2. That the fresh evidence would have material effect upon the Courts decision; 3. That the fresh evidence existed prior to the decision of the Court; 4. That the fresh evidence was only discovered after the decision of the Court; and 5. That the fresh evidence could not have been discovered prior to the decision.