Agritech Zambia Ltd v Simpemba (Appeal 104 of 2009) [2017] ZMSC 248 (21 February 2017)

Appeal No. 104/2009 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: AGRITECH ZAMBIA LIMITED (Formerly known as ICI Zambia Limited) APPELLANT AND MARON MISHECK SIMPEMBA RESPONDENT Coram: Phiri, Hamaundu and Kaoma, JJJS On the 10th July, 2014 and 21st February, 2017. For the Appellant: Mr. A. Wright of Messrs Wright Chambers For the Respondents: Mrs. L. Mushota of Messrs L. Mushota & Associates _______________ JUDGMENT______________ Phiri, JS, delivered the Judgment of the Court Cases referred to: 1. 2. 3. Nkongolo Farms Ltd vs. Zambia National Commercial Bank Limited and Others (2005) Z. R. 78 Reeves Malambo vs. Patco Agro Industries Limited (2007) Z. R. 177 Zambia Privatization Agency vs. Huddell C. Chibichabo and One Other (2005) Z. R. 74. Saban and Others vs. Milan (2008) Z. R. Vol. 1, 233. Roy vs. Chitakata Ranching Company (1980) Z. R. 198 4. 5. 6. Wilson Masauso Zulu vs. Avondale Housing Project Limited (1982) Z. R. 175. This appeal is from a decision of the High Court which set aside its earlier judgment based on agreed facts, in which it dismissed the appellant’s case for lacking merit; and ordered the case to proceed to trial. This case has a rather long history, and it has been before four different Judges of the High Court, in one form or another, since 2005. At the centre of the litigation is property known as Stand No. 11964, Lusaka. The respondent, who was the plaintiff in the Court below, launched his case against the appellant Company, which was the defendant, by Writ of Summons, claiming: 1. 2. An order rescinding the contract of sale of plot No. 11964 entered into between the plaintiff and the defendant (then known as ICI South Africa Zambia Limited), as there had been a total failure of consideration and misrepresentation and fraud. An order that the Certificate of Title issued in respect of the property be cancelled and that title be reverted back to the plaintiff. 3. Damages for breach of contract. 4. Any other equitable relief that the Court may deem fit; interest and legal costs. J2 On the 3rd of June, 2008, the parties filed a statement of agreed facts in which the following facts were highlighted: “1 . That the plaintiff was the original owner of Plot No. 11964 Chainama, Lusaka. 2. 3. 4. 5. 6. 7. That the plaintiff and the 1st defendant did enter into a contract of sale for the said property. The plaintiff claims the agreed contract price was K50,000,000.00. The 1st defendant on the other hand claims the price of KI,000,000.00. That the 1st defendant duly paid the purchase price of KI,000,000.00 to the plaintiff and the plaintiff deposited Title Deeds with the 1st defendant. That due to the length of time the contract of sale is now lost and cannot be found. In the meantime, the plaintiff got sick and went to the village for medication. That an assignment was duly drawn and executed incorporating the agreed price of KI,000,000.00 for the property and the plaintiff and the 1st defendant knowingly executed the assignment but believing their different facts. That subsequently the assignment was registered at the lands and deeds department on the 19th February, 1991 and the Deeds No. L 553 was issued to the 1st defendant. That in 2005, fifteen years after the transaction, the plaintiff issued a Writ of Summons and Statement of Claim, inter alia alleging that the sale price was K50,000,000.00 and not KI,000,000.00. This is after the plaintiff returned from the village where he had been on medication. The plaintiff alleges that the 2nd and 3rd J3 defendants did not inform him of the full facts of the transactions. 8. That on the 5th May, 2006, the plaintiff entered Judgment in default of defence against the defendants and on the strength of the said default Judgment obtained another Title Deed relating to the said property. 9. In essence there are now two different title deeds relating to the same property. 10. That nevertheless on the 1st June, 2006 the default Judgment obtained by the plaintiff was set aside and the order setting aside the said default Judgment was duly registered at the lands and deeds registry. 11. That the plaintiff was by trade a private building contractor and on the 23rd September, 1992 swore an affidavit that all sums due to him by the 1st defendant had been paid to him for works he had carried out on the said property, based on the particular contract for construction. 12. That the 1st defendant to date had been paying council rates upon the said property”. Both before and after the parties filed the agreed facts, a number of Chamber applications were made and rulings rendered in the High Court before different presiding trial Justices. We do not see any need for us to recast all those events in this judgment. Suffice it to state that the property in issue is also the subject of litigation under another cause number. J4 However, the relevant events preceding this appeal are; firstly, the trial was never held, as the parties consented to proceed to judgment without trial, on the basis of the agreed facts and their written submissions. Secondly, on the 22nd of August, 2008 the learned trial Judge before whom the agreed facts were settled, rendered the Court’s judgment in which he dismissed the plaintiff’s claim (now the respondent) on the ground that the assignment which was duly executed by the parties in the presence of witnesses from the Ministry of Lands and the appellant’s Company was clear, authentic and unambiguous on the agreed purchase price of KI,000,000 (unrebased) as opposed to K50,000,000 (unrebased) which the respondent claimed. Thirdly, on the 23rd of October, 2008, the learned trial Judge considered an application for leave to review the judgment delivered earlier on the 22nd of August, 2008. The application was made pursuant to Order 39 rule 1 of the High Court Rules, Chapter 27 of the Laws of Zambia. Leave to review the judgment was declined. Subsequently, on the 17th day of November, 2008 the learned trial Judge considered an application by the respondent to J5 stay execution of the judgment of 22nd August, 2008; and the ruling declining leave to review the said judgment. In his ruling on this application, the learned trial Judge observed that the appellant’s application in support raised the defence of “NON EST FACTUM” in relation to the agreement for the sale of Stand 11964, Lusaka; such that if this defence succeeded, then the entire contract came to an end. Consequently, the learned trial Judge made the following ruling: “I am alive to the extensive arguments advanced by both learned senior Counsel in respect of their positions but as can be seen, although coming at this late hour the defence needs to be challenged and negated and this can only be done at full trial. In the interest of justice and having regard to the nature of the defence, I am inclined to set aside my earlier ruling and direct that we proceed to trial and orders for directions should consequently issue in the usual format but condemn the plaintiff in costs”. Thus, the learned trial Judge set aside his final judgment and reopened the trial. Dissatisfied with the ruling, the appellant appealed to this Court canvassing four (4) grounds of appeal, couched in the following statements: 1. The Court below misdirected itself when it reviewed its own ruling for the second time and directed that the J6 parties should proceed to trial without taking into account the following: a) That by its judgment dated the 22nd August, 2008, the said Court made a finding at law and fact that, the respondent’s claim was not only statute barred but also that, there was no fraud as alleged by the respondent. b) That by a Ruling on Review dated the 23rd October, 2008 the Court below re-affirmed its judgment dated the 22nd August, 2008. 2. That the Court below offered no reasons at law for its decision to set aside its ruling dated 23rd October, 2008; and the application before it was for an order for injunction and/or stay. 3. That the Court below misdirected itself when it made a finding of a defence of “Non Est Factum”. 4. The Court below misdirected itself at law when it stated that, “although coming at this late hour the defence J7 needs to be challenged and negatived and this can only be done at full trial”. In support of the afore-listed grounds of appeal, the learned Counsel for the appellant filed written heads of argument on which he relied. On ground one, the contention of Mr. Wright, with reference to the case of Nkongolo Farms Ltd vs. Zambia National Commercial Bank Limited and Others*11 was that the respondent’s statement of claim alleged fraud; but no particulars of the fraud were given as the basis of the claim for breach of contract; and the contract which the respondent referred to was not produced before the trial Court. On the earlier findings by the trial Court, in its judgment, that the respondent’s action was statute barred, the contention of Mr. Wright, with reference to Section 4 subsection 3 of the Limitation Act of 1939, was that the relevant time period of limitation was six (6) years for breach of contract and 12 years for recovery of land, both of which had long since elapsed when the respondent launched his action; and, that since the assignment was executed by the parties in 1991, the fraud alleged (if any) J8 should have been discovered in 1991 when the Title Deeds were issued. It was also contended that the respondent, as he acknowledged in paragraph 7 of the agreed facts, swore an affidavit in 1992 to the effect that he was paid all sums due to him from the appellant on plot number 11964 Lusaka; and, therefore; that, with the finding by the learned trial Judge in his judgment of the 22nd August, 2008, that the respondent’s action was statute barred; there was no action which could proceed to trial after 15 years; and, therefore that there was no basis for the reversal of both the judgment and the ruling in which the Court declined the leave to review the judgment. In support of the latter contention, the case of Reeves Malambo vs. Patco Agro Industries Limited*2’ was cited. In that case, we stated that: “The trial Judge should have restricted himself to the application for interpretation. The attempt to review the judgment was misconceived”. The foregoing submission was largely repeated in support of grounds two, three and four. Specifically, it was the learned Counsel’s submission that the learned trial Judge should have J9 restricted himself to the application which was before him; instead of reviewing his judgment, and ordering a trial. It was further submitted that, when the lower Court reviewed its ruling for the second time, it had become "functus officio” and was not at liberty to reopen the matter. In support of this submission, the learned Counsel cited the cases of Zambia Privatization Agency vs. Huddell C. Chibichabo and one Other*31; and Saban and Others vs. Milan’4’. In the Zambia Privatization Agency case’3’, it was held that: “1) The position at law is that once a judgment is rendered, the Industrial Relations Court becomes Functus Officio. 2) The Industrial Relations Court, unlike the High Court cannot review, vary or correct its own judgment after rendering such judgment”. On the other hand, in the case of Saban and Others vs. Milan’4’, this Court held, inter alia, that: “There are no limitations as to the number of times a Judge can review his own judgment. However, there must be sufficient grounds”. Given the above two positions at law, Mr. Wright’s contention is that, when it comes to the powers of the High Court, the question becomes; was/are there sufficient grounds for the Court to have J10 reviewed its decision for a second time. In support of this argument, we were referred to the case of Roy vs. Chitakata Ranching Company’51, in which the High Court held that: “(i) Events which occur for the first time after delivery of judgment could not be taken into account as grounds for review of judgment. (ii ) Setting aside a judgment on fresh evidence will lie on the ground of the discovery of material evidence which would have had material effect upon the decision of the Court and has been discovered since the decision but could not with reasonable diligence have been discovered before”. It was submitted in the present case, that there was no fresh evidence and, no good grounds at the first review and there was, certainly, none on the second review; and, that change of lawyers by the respondents did not amount to fresh evidence. In support of grounds 3 and 4, which relate to the purported defence of “Non Est Factum, Mr. Wright’s short argument was that this defence was neither pleaded nor supported by the evidence on record, and, therefore, the finding of this defence by the lower Court was a misdirection on a question of law; and merits interference by us; in concert with our decision in the case of Nkongolo Farms Limited vs. Zambia National Commercial Bank Limited and Others’1’. It was also submitted that the view taken by the lower Jll Court that although the defence of “Non Est Factum” came at the late hour, it needed to be challenged and negatived at full trial, was a misdirection as it did not represent the correct position of the law, as propounded in the case of Wilson Masauso Zulu vs. Avondale Housing Project Limited*6’; that it is generally for the plaintiff to prove his case; and, that if he fails to do so he cannot be entitled to judgment, whatever may be said of the appellant’s case. We were urged to allow this appeal on the basis of these arguments. The respondent filed written heads of argument on which he relied. From the outset, it was pointed out that the appellant’s arguments introduced issues which were outside the ruling of the Court below; on which the appeal does not turn. According to the respondent, the basic fact was that his Writ of Summons and Statement of Claim were not directed at the property in dispute, because he resided on the property. The appellant neither occupied it nor leased it out; and, that the property remained with the respondent, who only left to be nursed at the village and returned to it upon his recovery. J12 We must state that we find it hard to comprehend the respondent’s opening statement. Be that as it may, the gist of the respondent’s submission on ground one of the appeal is that the High Court can review, vary or correct its own judgment under Order XXXIX of the High Court Act, Chapter 27 of the Laws of Zambia and on the authority of the cases of Zambia Privatization Agency vs. Chibichabo(3); and Saban and Others vs. Milan(4). It was argued that the review by the High Court was in order because the respondent challenged the purported ‘Agreed Facts’ and withdrew his instructions to counsel upon seeing that his best interests were not being represented; and therefore, that the appellant cannot insist on the agreed facts. With regard to the second ground of the appeal, the respondent submitted that his statement of claim in the Court below particularized the existence of total failure of consideration and misrepresentation, by stating that the purchase price that was agreed in the contract of sale of the disputed property was K50,000,000.00, payable in two monthly instalments of KI,000,000.00 and K49,000,000.00; instead of the KI,000,000.00 J13 which the appellant was claiming. It was also argued that the appellant failed to produce the contract of sale of the land,; and, therefore, it was not possible to determine when the right of action accrued in accordance with Sections 8 and 18 of the Limitation Act, 1939. It was further submitted that the KI,000,000.00 mentioned in the Deed of Assignment as the purchase price, was claimed by the appellant because it was a fraudulent misrepresentation of facts since the respondent could not read the two pieces of paper which the appellant presented to him for signature. With regard to ground two of the appeal which alleges failure by the Court below to deal with the application which was before it; namely an application for an injunction and/or stay of the judgment, the respondent’s brief argument was that the Court below reviewed its decision and ordered retrial, because it was right and just to do so; and that the defence of Non est Factum coupled with the total failure of consideration, misrepresentation and fraud made this case special and peculiar to warrant a review. J14 With regard to ground three of the appeal, the respondent submitted that the Court below was on firm ground when it set aside its ruling of 23rd October, 2008 in order to curtail the breach of contract being committed by the respondent. With regard to ground four of the appeal, the gist of the respondent’s submission is that the Court below should not be faulted for ordering a trial in the interest of justice; and that the appellant should not be allowed to insist on a judgment or ruling that was reviewed; and, further, that the Limitation Act, 1939 should not have been raised as a second defence by the appellant who was losing the case on the merits (sic). We have carefully considered the grounds of the appeal, the submissions made by both parties and the authorities cited. We note that quite a number of issues canvassed in the submissions were irrelevant to this appeal. As we stated earlier, this appeal is against the ruling of the lower Court which set aside its earlier judgment dismissing the appellant’s case; and, ordered it to proceed to trial. J15 The facts of this case, as they were before the lower Court and before us, are largely common; and they were drawn up, settled and filed into Court as Agreed Facts by the parties themselves through their legal representatives. To this extent, we must state that we do not accept the respondent’s argument that the agreed facts were not acceptable to him. Be that as it may, we do not think the facts and the merits of the respondent’s claims, as pleaded in the Court below, are really in issue in this appeal. The facts relevant to this appeal are these: After settling their pleadings, the parties agreed to proceed without trial and filed their agreed facts; followed by submissions. The learned trial Judge rendered the judgment on the 22nd of August, 2008 and found in favour of the appellant. There was no appeal lodged against that judgment. However, on the 1st September, 2008, the respondent who was the plaintiff in the Court below, lodged an application for review of the judgment; and obtained an ex-parte order of stay of execution of the judgment pending the hearing of the respondent’s application for review of the J16 same. In his affidavit in support of the summons for review, the respondent averred, inter alia, the following: “3. That on 22nd August, 2008, this honourable Court entered judgment in this matter in favour of the defendants. 4. That I have read the said judgment of this honourable Court and I believe there is sufficient ground for the review of the said judgment on the following grounds: a) b) That the parties filed a statement of agreed facts into Court on 3rd June, 2008. Now produced and shown to me marked “MMS1” is a true copy of the said statement of agreed facts. That the said statement of agreed facts was not referred to, discussed, analyzed or even contradicted in the said judgment of this Court. c) .............................” As already indicated, leave to review the lower Court’s judgment was declined on the 23rd of October, 2008. On the 17th of November, 2008, the respondent sought an order to, once again, stay the judgment and the subsequent ruling declining the review. It is significant to note that up until this stage and beyond, there was no appeal lodged against either the judgment or the ruling declining to review that judgment. What was before the lower Court when it rendered the ruling of the 17th November, 2008, now appealed against, was a repeat application by the respondent to stay the execution of judgment J17 and to stay the lower Court’s ruling which declined leave to review the judgment “until further order of the Court”. However, instead of dealing with this application, the lower Court went overboard and reversed both its final judgment and the two rulings declining to review the judgment; and granted the respondent a relief which he did not seek; namely, to proceed to trial on the ground that the respondent’s affidavit had disclosed a prayer of ‘Non est Factum’ as a defence. This turn of events was indeed both dramatic and unsolicited; and unsupported by the application that was before the lower Court. There was no appeal lodged against the lower Court’s earlier judgment and rulings, and there was no renewed application for review pending before it. The view we hold is that the review of the judgment was erroneously done and the order to set aside that judgment, by implication, and restore the cause to the active list for trial de novo was misconceived in both law and procedure. Therefore, the ruling of the lower Court delivered on the 17th of November, 2008 was, for all intents and purposes; and for all the reasons, wrong both at law J18 i and in fact. For this reason, we find no need to specifically discuss each of the four grounds of appeal. Suffice it to state broadly, that a Judge of the High Court can review his/her own judgment upon application made within 14 days of the delivery of that judgment, only if sufficient grounds exist; and these must be clearly stated in both the application and in the ruling of the Court (see the Saban case). Secondly, a Judge of the High Court should never 'discover’ a defence that was not pleaded by the defendant after the pleadings close. Thirdly, when a claim is factually found by the trial Judge to be statute barred under the Limitation Act, 1939; that claim must terminate. Thus, we find merit in all the four grounds of appeal. We allow the appeal and award costs, both here and in the Court below, to the appellant to be taxed in default of agreement. For avoidance of doubt, we order the reversal of all Orders awarded or effected in favour of the respondent in the Court below after the judgment of the 22nd August, 2008; including any entries that might have been made or effected at the instance of the respondent J19 in the register of land by the Registrar of Lands under the Lands and Deeds Registry Act, Cap 185 of the Laws of Zambia. SUPREME COURT JUDGE SUPREME COURT JUDGE SUPREME COURT JUDGE Kaoma J20