In 1971, George Balamoan began civil proceedings against Aidan Gaffney and caused a writ of summons to be served upon him on a Sunday. That apparently minor choice of day produced a procedural dispute that reached the High Court. The High Court Rules prohibited service in a civil cause on Sunday, Good Friday or Christmas Day.
Gaffney did not ignore the writ. He entered an appearance to protect his position. Balamoan later discontinued the action, after which Gaffney presented his bill of costs. After Gaffney entered an appearance, Balamoan filed a notice discontinuing the action. A plaintiff is ordinarily entitled, subject to the rules, to abandon proceedings.
That principle encourages sensible behaviour. The law should not reward a party who creates uncertainty by forcing the opponent to risk default merely to preserve a procedural complaint. What makes this case worth remembering is the principle behind the story: Silungwe A.J.’s answer was grounded in fairness disciplined by procedure.
- The plaintiff could not create the need for expenditure and then rely upon his own irregularity to say that the expenditure was unnecessary.
The appeal was dismissed with costs. Nearly three centuries after an English Parliament legislated about Sunday observance, that old legal history helped resolve a costs dispute in independent Zambia.
For lawyers, the value of the case is not only the rule it states, but the way the facts make the rule memorable.
For everyone else, it is another reminder that Zambia’s legal history is also Zambia’s social history.
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