Amanita Zambia and Ors v OTK Ltd (Appeal 6 of 2006) [2008] ZMSC 155 (14 May 2008)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) Appeal No. 06/2006 IN THE MATTER BETWEEN: AMANITA ZAMBIA DIEGO GAN-MARIA CASILLI AMAINTA PREMIER OILS AMANITA MILLING LTD 1ST APPELLANT 2ND APPELLANT 3rd APPELLANT 4th APPELLANT AND OTK LIMITED RESPONDENT Coram: Sakala, CJ., Mumba, JJS, Kabalata AJS, On 24«h May 2007 and 14th May 2008 For the Appellants: Mr G. F. Patel of Messrs Musa Dudhia and Company For the Respondent: Mrs T. Kalenga Chirwa of Messrs Corpus Globe, Legal Practitioners JUDGMENT Mumba, JS, delivered the Judgment of the court. CASES REFERRED TO: 1. Kariba North Bank Company Limited Vs Zambia State Insurance Corporation Limited (1980) Z. R 94 2. Temperton Vs Russle (1893) 9 T. L. R 319 3. Pinson Vs Lloyds and National Provincial Foreign Bank Limited (1941) 2 All E. R 636 WORKS REFERRED TO: -J2- 4. Bullen and Leake, Precedents of Pleadings, 12th Edition, 110 5. Halsbuiy’s Laws of England, Fourth Edition, Vol. 36, Paragraph 12 For convenience, we shall refer to the appellants as the defendants and the respondent as the plaintiff, designations they held in the court below. This is an appeal against a Ruling of the High Court; whereby the defendants’ application for further and better particulars was dismissed and the parties were ordered to proceed to a scheduling conference for trial. The plaintiff brought an action alleging, inter alia, breach of contracts and served a statement of claim on the defendants who, in turn, entered conditional appearance and filed a conditional defence. The defendants sought further and better particulars from the plaintiff and the plaintiff obliged. Thereafter, the defendants applied for an order for further and better particulars alleging that what had been supplied as further and better particulars were not sufficient. The plaintiff -J3- opposed the application submitting, in the main, that what the plaintiff had already supplied as further and better particulars were sufficient to enable the defendants file a defence. The court below held that the plaintiff had supplied sufficient information sought by the defendants, dismissed the application and ordered the parties to proceed to a scheduling conference for trial. The defendants appealed and filed three grounds of appeal as follows: 1. The learned Judge in his Ruling dated 17th November, 2005 erred in fact and in law in holding that the respondent had supplied adequate information to enable the appellants to adequately prepare their defence. 2. The learned Judge erred and misdirected himself in fact and in law by not considering that the Statement of Claim and particulars furnished by the respondent did not limit the generality of the Statement of Claim as required expressly and/or impliedly by the onerous rules of particularity of pleadings required in the commercial list. -J5- It was further submitted that the basis for the application was to supply the party so applying with relevant particulars to enable such party deduce the precise nature of the claim made against it and prepare an adequate defence. In support of these submissions, the case of Kariba North Bank Company Limited Vs Zambia State Insurance Corporation Limited(l) was cited and the principles laid down therein were re-cast. Finally the defendants submitted that the plaintiff had failed to furnish the particulars requested under summons by the defendants. In response to ground one, the plaintiff submitted that Order 18, Rule 12 of the Laws of the Supreme Court, 1999 edition, provided for further and better particulars and stated, inter alia, that further and better particulars were based on the overriding principle that litigation between the parties should be conducted fairly and openly without surprises and, as far as possible, in a manner to minimize costs. The plaintiff pointed out that it had prepared the statement of claim clearly laying out its case against each of the four defendants. The action -J4- 3. The learned Judge in the court below erred in law by not explaining adequately his reasons for refusing to order better and further particulars. In support of the first ground of appeal, it was submitted that the plaintiff’s claim, as laid out in the statement of claim and the response to the request for further and better particulars, was deficient and therefore prejudicial to the defendants because they were unable to prepare a proper defence. It was submitted that the plaintiff had not furnished the defendants sufficient material facts on which the claim was based but instead had given an account of the purported indebtedness of the defendants which account has been found to be inadequate for purposes of preparing a proper defence. The defendants pointed out that it was a cardinal principle that a certain amount of detail was necessary in pleadings to ensure clarity in each case. It was submitted that where a party to the proceedings fails to aptly present his case, the other party may apply for further and better particulars pursuant to Order 15, Rule 1 of the High Court Rules, Chapter 27 of the Laws of Zambia. -J6- composed of four distinct causes of action being; a breach of agency contract, a breach of Chimsoro contract, negligence and monies had and received. When defendants responded by their letter of 23rd May 2005, requesting for further and better particulars, the 44 questions, which were raised, contained an average of 4 questions under each head bringing the questions to a total of 161. The plaintiff answered the 161 questions, yet again the defendants applied to court for further and better particulars to be furnished, the court refused the application after hearing both parties. The plaintiff submitted that the 161 questions being requested for further and better particulars were an abuse of court process in and of themselves and were largely oppressive, a means of delaying and thereby denying the plaintiff justice sought. The plaintiff also cited the same case of Kariba North Bank Company Limited Vs Zambia State Insurance Corporation Limited(l), in which, it was submitted, the functions of pleadings were outlined. The plaintiff reinforced submissions by citing learned Authors of Bullen and Leake, -J7- Precedents of Pleadings(4), 12th edition, at page 110 which states, “It is, however, essential that each party should give to his opponent a fair outline of the case which will be raised against him at the hearing and for this purpose he must set out on the body of his pleadings all particulars which are necessary to enable his opponent properly to prepare his case for trial. ” The plaintiff contended that the statement of claim contained all the necessary particulars which disclosed a cause of action against each defendant. The plaintiff also relied on Halsbury’s Laws of England(5), Volume 36, 4th Edition, paragraph 12, which also lays down essential features of a good pleading as, “ facts not law; material facts only; facts not evidence and facts stated in summary form.” The plaintiff submitted that the reading of the defendants’ requests for further and better particulars contained 11 requests pertaining to law, 59 requests for evidence relied on, 66 requests for information already in the statement of claim and 17 requests for information in their own peculiar -J8- knowledge. The plaintiff submitted that if the requests by the defendants were to be complied with, the response wouldn’t comply with what Halsbury’s Laws of England(5) has stated as good pleading. Paragraph 11 of the same edition of Halsbury’s Laws(5) again was quoted as stating that, “every pleading must contain and contain only a statement in a summary form of the material facts on which the party pleading relies for its claim or defence as the case maybe but not the evidence by which they are to be proved.” The plaintiff finally submitted that in this case the defendants were on a fishing expedition whose sole intention was to delay the proceedings. The case of Temperton Vs Russle(2) was cited, in particular, the passage at page 321 where it was pointed out that if the request for further and better particulars were to obtain names of witnesses or some other clue to the evidence, it should be dismissed. On the second ground of appeal, it was submitted that while parties were at liberty to frame their case as they wished, they were in any case under obligation to state their case with -J9- precision to enable the other party grasp the gist of the claimant’s case. After pointing out the deficiencies of the statement of claim by the plaintiff and the lack of detail in the further and better particulars furnished, the defendants cited the case of Pinson Vs Lloyds and National Provincial Foreign Bank Limited(3) at page 636, where it was stated that the function of particulars was to put the opposing party ori their guard and to prevent them being taken by surprise at trial of an action the material facts of which should have been already averred. The defendants invited the court to look at the responses which were given by the plaintiff upon request, pointing out that the same were totally inadequate. The defendants also insisted that the plaintiff was refusing to give full relevant disclosure of all relevant information in the accusation, or, the plaintiff did not identify pertinent records relating to the Agency Agreement relied upon or documentary evidence available on their relationship or as alleged against 2nd, 3rd and 4th defendants. -J10- In response to ground two, the plaintiff cited Practice Direction Number One of the Commercial Registry. The plaintiff submitted that the statement of claim did state all material particulars clearly showing causes of action on the claim against the 1st and 2nd defendants for breach of agency contract, breach of Chimsoro contract and negligence and, a claim against the 3rd and 4th defendants for monies had and received. After citing other cases and pointing out that the statement of claim and the response for further and better particulars were clear and sufficient, the plaintiff finally submitted that it had gone to great length to establish a cause of action against each defendant and had complied with the Practice Direction of a Commercial Registry. On the third ground of appeal, defendants submitted that the learned Judge in the court below did not consider the significance of the defendants’ arguments when he ruled that the plaintiff had provided sufficient material facts in its statement of claim. The defendants also submitted that the learned Judge in the court below merely glossed over the -J11- arguments of the parties without applying his mind to the issues at hand, and that that was gravely prejudicial to the defendants. It was pointed out that the court below did not show or demonstrate in what manner the particulars furnished by the plaintiff were sufficient to afford the defendants an equal opportunity to answer the claims in the plaintiffs pleadings. It was further submitted that this was a proper case for which further and better particulars should have been ordered to enable the defendants defend the matter judiciously. The defendants urged the court to allow the appeal with costs. In response to the third ground of appeal, the plaintiff submitted that the Judge in the court below furnished reasons for his ruling when he stated that, “I am satisfied that the plaintiff has adequately supplied the information wanted by the defendant to enable them prepare for their defence”. The plaintiff added that in any event, even if the Judge had delayed or failed to give reasons for his decision, that in itself could not prevent the defendant from proceeding with the appeal. It was also pointed out that while the Arbitration Act -J12- of No 19 of 2000 Section 16(2), required that an arbitral award must state the reasons upon which it is based unless the parties agreed otherwise, there was no such provision in the High Court Act or the Supreme Court Rules; the learned Judge in the court below was in order not stating reasons for his Ruling. It was finally submitted that the case before the court below was not a case where an order for further and better particulars was necessary because the statement of claim fully disclosed the plaintiff’s case against the defendants. Having considered all the submissions and the cited cases, we find that the grounds of appeal in grounds one and two are overlapping and we shall respond to them collectively. In our view, we find nothing amiss in the further and better particulars as well as the Statement of Claim supplied by the plaintiff to the defendants. We agree with the Ruling of the court below to the effect that the plaintiff had supplied adequate information to enable the defendants prepare their defence. What appears to remain on the part of the plaintiff is -JI 3- to adduce evidence during trial to support the claims and substantiate the reliefs sought. The defendants can very well prepare their defence on the information provided, without difficulty. The objectives of pleadings are, in sum, to lay a claim with material particulars concisely, precisely and unequivocally. The record of appeal shows that the plaintiff has pleaded his case as required in law. On the third ground of appeal, whether or not the court below gave reasons for the Ruling, the court expressed satisfaction having looked at affidavit evidence and the proceedings’ pleadings; that, without more, was sufficient in what was an interlocutory decision. We find no merit in the appeal and we dismiss it with costs. -J14- E. L. SAKALA CHIEF JUSTICE F. N. M. MUMBA SUPREME COURT JUDGE , T. A. 'KAlJALATA ACTING SUPREME COURT JUDGE