GROUND THREE May it please this Honorable Court, My Lord and My Lady, this ground of appeal asserts that, The Learned Judge Failed to properly apply the rules of default judgement. The lower court entered a default judgment against the appellant due to the non-payment of a hearing fee. The appellant contends that the learned judge failed to properly consider whether the appellant had a meritorious defense before entering the default judgment. My Lords and My Ladies, the learned judge failed to properly apply the principles of default judgment under Order XXXIX Rule I of the High Court Rules of Zambia by granting judgment to the respondent without adequately considering the circumstances surrounding the non-compliance with the court order to pay the hearing fee and without providing the appellant an opportunity to explain or rectify the failure. Order XXXIX Rule I of the High Court Rules emphasized that a default judgment should not be entered lightly and that the court must consider whether the defendant has a substantive defense that warrants a full hearing. My Lord and My Lady, Specifically, the Judge should have allowed for an explanation from the appellant regarding the non-payment of the hearing fee or should have given the appellant a chance to comply with the order before entering judgment by default. The application of the default judgment should be balanced, equitable, and only applied when a party is shown to be deliberately non-compliant or has failed to act reasonably. Order XXXIX Rule I of the High Court Rules of Zambia provides that a court may enter a judgment in default against a party who fails to comply with a procedural requirement, such as attending a hearing or failing to file certain documents. However, the exercise of this power is discretionary and should be applied fairly and judiciously. The purpose of this rule is to ensure that parties comply with procedural orders and attend court proceedings to avoid unnecessary delays. Nevertheless, it is not intended to punish parties unduly or to deny a party their right to a fair hearing without a proper basis. My Lord and My Lady, At the hearing on 8th October 2001, counsel for the appellant acknowledged the non-compliance and undertook to pay the fee, and counsel for the respondent did not object to proceeding with the case. The court nonetheless refused to allow the hearing to proceed without the payment of the fee. Order XXXIX Rule I allows for discretion, and it is incumbent upon the court to use this discretion judiciously. The learned judge did not adequately exercise discretion in determining whether the non-compliance by the appellant was sufficient to warrant a judgment by default. Given that the appellant's counsel made an undertaking to pay and there was no objection from the respondent's side, the court should have considered less drastic measures than granting default judgment, such as giving a further opportunity to comply with the payment order or imposing a lesser sanction. In the case of Mwambazi v Morester Farms Limited (1977) Z.R. 108, it was held that, "It is the practice in dealing with bona fide interlocutory applications for courts to allow triable issues to come to trial despite the default of the parties, where a party is in default he may be ordered to pay costs, but it is not in the interests of justice to deny him the right to have his case heard." In the Case of Leopold Walford (Z) Ltd v. Unifreight and Zambia Revenue Authority (1985), the Supreme Court expressed that "breach of a regulatory rule is curable, and that the substance and merit should be the overriding consideration in determining disputes." My Lord and My Lady, in refusing the application for review, the learned judge again failed to consider the explanations or potential reasons behind the appellant's failure to comply initially. The court seemed to adopt a strict interpretation of compliance without weighing the overall fairness and context. This approach contradicts the principles embedded in the High Court Rules that default judgments are meant to ensure justice and fairness, not to create unjust outcomes due to procedural non-compliance. The learned judge's strict adherence to the rule without consideration of context resulted in a misapplication of the principles of default judgment, warranting an appeal. PRAYER My Lord and My Lady, the appellant prays that this Honorable Court sets aside the default judgment and remit the case back to the lower court for a full hearing on the merits.

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