Sichone v Attorney General and Anor (Appeal 192 of 2014) [2017] ZMSC 217 (22 August 2017)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 192/2014 HOLDEN AT LUSAKA (CIVIL JURISDICTION) SCZ/8/235/2014 BETWEEN: BRIAN WINSTONE SICHONE APPELLANT AND ATTORNEY GENERAL ALEX NGOSA Ist RESPONDENT 2nd RESPONDENT CORAM: Mambilima, CJ Kaoma and Kajimanga, JJS On: 11th July, 2017 and 22nd August, 2017 For the Appellant: Mr. N. Nchito, SC and Mrs. N. Simachela For the 1st Respondent: N/A of Nchito & Nchito For the 2nd Respondent: Mr. B. C. Mutale and Mr. S. Chikuba of BCM Legal Practitioners JUDGMENT Kaoma, JS delivered the Judgment of the Court Cases referred to: 1. Cropper v Smith (1883) Ch. D 700 2. John Chisata v Attorney General (1992) S. J. 19 3. Kelvin Hang’andu and Company (a firm) v Mulubisha (2008) 2 Z. R. 84 4. Mukumbuta Mukumbuta and others v Nkwilimba Choobana and others - SCZ Judgment No. 8 of 2003 5. Chikuta v Chipata Rural Council (1974) ZR 241 6. NFC Africa Mining Plc v Techno Zambia Limited (2009) Z. R. 236 7. Supa Baking Company v Philimon J. Pendwe - SCZ Judgment No. 31/2004 J2 8. New Plast Industries v Commissioner of Lands and another (2001) Z. R. 9. BP Zambia PLC v Interiand Motors Ltd (2001) Z. R. 37 Legislation referred to: 1. High Court Rules, Chapter 27, Order 6 rule 1(2), Order 30(10) 2. High Court Act, Chapter 27, section 13 3. Rules of the Supreme Court 1999, Order 2(1), (2) and(3), Order 18 rule 19 (1)(d) 4. Limitation Act 1939 5. Black’s Law Dictionary, 9th Edition, page 1559 This appeal is against the dismissal of an appeal by a Judge in Chambers, following the dismissal by a Deputy Registrar of the appellant’s originating summons filed on 14th January, 2009. The background facts to this appeal are that on 8th April, 2004 the appellant commenced an action by writ of summons under Cause No. 2004/HP/0346 (the first action) against the Attorney General and Alex Ngosa (the 1st and 2nd respondents respectively), seeking, inter alia, a declaration that he was the rightful sitting tenant of House No. 5 Nkachibaya Road, Rhodes Park at the time the Government of the Republic of Zambia decided to sell pool houses to sitting tenants; a declaration that he was entitled to purchase the house; and an order to reverse the decision of the Housing Committee which denied him a chance to buy the house and gave him a notice of eviction dated 21st April, 1997. J4 question of limitation, it was submitted that the action arose in 1998 which was more than six years to the date of commencement of the action in April, 2004. On his part, counsel for the appellant argued that High Court Rules are mere rules of procedure whose breach is curable and that Order 2, rule 1 of the Rules of the Supreme Court (RSC) allows for a breach of rules to be remedied as the court deems it fit rather than nullify the proceedings. As regards the limitation period, counsel argued that since the appellant was evicted on 12th April, 1999, time started running at that point and the appellant commenced the action within the stipulated six year period. In a ruling delivered on 15th September, 2004 the Deputy Registrar took the view that in terms of Order 6 (2) of the High Court Rules, the action should have been properly commenced by originating summons. Whilst he agreed with the appellant that the non-compliance with rules of procedure is not necessarily fatal to the action if a remedy not prejudicial to the other party is possible, he opined that an amendment to the writ was not possible and that recommencing the action under the correct form was the only % J5 remedy. Hence, he struck out the writ for irregularity to allow the appellant to recommence the action. However, the Deputy Registrar dismissed the argument that the action was statute barred on the basis that if time started running sometime in 1998, as argued by the 2nd respondent, then the six year period would expire sometime in 2004, and therefore, the appellant would be within time to commence the action. The appellant did not act immediately to recommence the action. He did so only on 15th February, 2005 when he took out an originating summons under Cause No. 2005/HP/0223 (the second action, being referred to as Cause No. 2005/HP/0225), seeking essentially the same reliefs. Again, the 2nd respondent applied to dismiss the action for abuse of court process and for being statute barred contrary to section 13 of the High Court Act, Chapter 27 of the Laws of Zambia, Order 18 rule 19 (l)(d) of the RSC and the Limitation Act 1939. The appellant did not attend the hearing of the application, although he was served with court process. Apparently, a different Deputy Registrar heard the application. In his ruling, he referred to the ruling by the first Deputy Registrar and took the view that if the date when the cause of action accrued J6 in 1998 was not given, one would assume, subject to being disproved by evidence to the contrary, that the cause of action accrued at least in December, 1998 and therefore, to comply with the Limitation Act the appellant should have brought his claim at least by the end of December, 2004. He further noted that the first ruling was rendered on 15lh September, 2004 but the appellant took no steps to bring the action until February, 2005 and that the earlier ruling did not appear to have extended the time within which he could bring the action. Finally, he found that in terms of Order 18 rule 19 (l)(d) of the RSC, the action was an abuse of process and was statute barred. The appellant did nothing after this decision was rendered. He only obtained leave to appeal on 21st November, 2007 from a High Court Judge and he filed a notice of appeal on 29th November, 2007. However, he took no steps to prosecute the appeal. Instead, on 14th January, 2009 he filed an originating summons under the first action which we shall refer to as the third action. On 2nd June, 2010 the 2nd respondent applied, yet again, to dismiss the action for irregularity pursuant to Orders 2 and 18 rule 19 of the RSC. The gist of the affidavit in support was that the J7 originating summons was a nullity in that the initial pleadings were struck out for irregularity and that in those circumstances, the appellant could not amend or file any process and was merely abusing court process considering the backdrop to the matter. In the affidavit in opposition, the appellant’s counsel averred, inter alia, that it was an error to file the second action as the effect was to commence a fresh action which was not the intention; and that as proceedings are not nullified by reason only of irregularity in the mode of commencement, it is proper to construe that the appellant’s first action did not abate after the ruling in that action. Counsel also stated that the second Deputy Registrar granted the 2nd respondent’s application despite knowing that the court merely struck out the writ to enable the appellant commence the action using the correct mode and had not struck out the cause altogether; and that leave to appeal was granted by Mr. Justice Musonda but a date of hearing was not issued, and therefore, the appeal had not yet been heard. It was further averred that the third action was filed in accordance with the order of the first Deputy Registrar; and that it was not abuse of process for the matter to be prosecuted under the first action as the same had not abated and it J8 had, according to the first Deputy Registrar, been commenced within the limitation period. The application was heard again by a different Deputy Registrar. In his ruling delivered on 10th November, 2010 the third Deputy Registrar found that the first action was wholly struck out; that the only option available was to recommence a fresh action on a correct writ; that to issue a correct writ on the same cause amounted to amendment which was against the spirit of the ruling; and that the holding of the first Deputy Registrar was ignored by the appellant when he proceeded to file the third action. Hence, he struck out the originating process for being irregular, thus the appeal to the Judge in Chambers filed on 6th December, 2010. Counsel for the appellant invited the Judge to determine what course of action was available to the appellant after the ruling in the first action and whether the appellant’s action to commence the third action was irregular. He relied heavily on Order 2 (2) and (3) of the RSC and submitted that on the law cited, an irregularity shall not nullify proceedings and that the third Deputy Registrar erred when he held that the appellant could not issue a correct writ under the same cause and that the action was wholly struck out. J9 In response to the 2nd respondent’s assertion that the appeal was an abuse of court process and a case of forum shopping, counsel for the appellant submitted that the appellant had not commenced a multiplicity of procedures and proceedings but was merely exercising his rights under Order 30 (10) of the High Court Rules to appeal to a judge in Chambers. Further and in the alternative, counsel argued that the appellant had not been heard on the merits and that it was the duty of the court to hear the matter and not to punish the appellant on technicalities. He also cited the case of Cropper v Smith1 where he argued that Bowen, LJ stated as follows: “It is a well established principle that the object of the court is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases. I know of no kind of error or mistake which if not fraudulent or intended to overreach the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy.” Counsel further cited the case of Chisata v Attorney General2 where we held, among others, that: “The discretion to strike out should only be exercised in clearest cases. The best course in every case is to allow the whole matter to come to trial and leave it to the trial judge to decide what claims are sustainable.” * J10 On his part, counsel for the 2nd respondent insisted that the appellant’s conduct amounted to abuse of process and forum shopping and referred to the cases of Kelvin Hang’andu and Company (a firm) v Webby Mulubisha3 and Mukumbuta Mukumbuta and others v Nkwilimba Choobana and others4 where we frowned upon abuse of process and forum shopping. In the judgment appealed against, delivered on 17th July, 2014 the learned Judge upheld the third Deputy Registrar’s decision and found that the appeal was misconceived and at most an abuse of court process and forum shopping calculated to obtain a favourable treatment under a different court. She noted that in the ruling of the first Deputy Registrar, the appellant was advised to commence a fresh action after the initial action was struck out for irregularity as opposed to an amendment of pleadings under the same cause; and that it was correct for the appellant to commence the second action. The Judge also observed that leave to appeal was granted by Mr. Justice Musonda, unfortunately and for reasons best known to the appellant and his counsel, there was and had been neglect or failure to pursue the matter to its logical conclusion only to prosecute the case under an erroneous process. JU Aggrieved by the decision, the appellant has appealed to this Court on two grounds as follows: 1. The learned trial Judge erred in law and in fact when she found that the action had been nullified in its entirety by the ruling of the Deputy Registrar of 15th September, 2004 when that ruling allowed the appellant to recommence the action using the appropriate mode. 2. The learned trial Judge erred in law and in fact when she found that the appellant was engaged in forum shopping and as such was not entitled to have his case heard on the merits when the matter has not had a chance to proceed to trial and the 1st respondent has been applying to have it dismissed at every turn. In support of the appeal counsel for the appellant filed written heads of argument which he briefly augmented orally. In response counsel for the respondents also filed written heads of argument. Counsel for the 1st respondent did not attend the hearing of the appeal but we have taken into account the filed heads of argument. In ground 1, State Counsel Nchito quoted a portion of the ruling of the first Deputy Registrar where he stated that: “In this case an amendment to the writ is not possible but recommencing the action under the correct mode is the only remedy. I therefore, strike out the writ for irregularity to allow the Plaintiff to recommence the action with costs.” He submitted that in the words of the Deputy Registrar, the action was not struck out in its entirety and the appellant was accorded a chance to recommence the action in the same cause, I A J12 using the appropriate mode, and not to commence another action. Citing Order 2 (1) and (3) of the RSC, State Counsel repeated the arguments made in the court below. He contended that a writ cannot be amended into an originating summons; and that by filing the third action, the appellant complied with the ruling of the court. In response to this ground, counsel for the 1st respondent submitted, citing the case of Chikuta v Chipata Rural Council5, that the court below had no jurisdiction to hear the third action hence the justified step was to commence a new action as was done under the second action. In the above case we held that: “There is no case where there is a choice between commencing an action by a writ of summons or by originating summons.... Where any matter is brought to the High Court by means of an Originating Summons when it should have been by writ, the Court has no jurisdiction to make a declaration.” Counsel also referred to Black’s Law Dictionary, 9th Edition at page 1559 on the effect of dismissing a matter by the court, namely, that the matter is as good as not having been commenced. He submitted that the only way out as ordered by the first Deputy Registrar was to issue a fresh action. He also referred to the definition of “strike” and “dismissal” in the same Dictionary. It was J13 argued that the appellant was forum shopping when he went back to the first action after the second action was dismissed. On his part, counsel for the 2nd respondent submitted, that the appellant has relied on Order 2 (1) and (3) of the RSC which have been interpreted to amount to an allowance to proceed with the action, after the matter was struck out by the first Deputy Registrar, as opposed to following the advice given by the court as the irregularity was incurable, with the only remedy being the option to recommence the matter. Counsel cited the cases of NFC Africa Mining Plc v Techno Zambia Limited6 where we spelt out the reasons for following the rules of court; Supa Baking Company v Philimon J. Pendwe7, where we nullified proceedings that were started using the wrong procedure and ordered the plaintiff to commence the action using the correct procedure; and New Plast Industries v Commissioner of Lands and another8 where we adjudicated upon a similar issue. In support of ground 2, State Counsel Nchito repeated the argument made in the court below that the appellant was not forum shopping or attempting to obtain favourable treatment from another court as the matter has not been heard on the merits and that the J14 appellant was only exercising his right to appeal. He added that there was no danger of having conflicting judgments because the appellant discontinued the second action in order to pursue the third action and that the duty of the court at all times is to adjudicate on matters on merit rather than technicalities. He again cited the case of Chisata v Attorney General2. State Counsel argued that the appellant took necessary steps to bring the claim before court to hear the matter on the merits but the orders of the court prevented the matter from being heard at every turn and in these circumstances, the appellant’s conduct cannot be said to constitute forum shopping or abuse of process. In response, counsel for the 1st respondent contended that the appellant appeared before two Deputy Registrars over the same matter and parties in pursuit of his case and that the appeal before the High Court and this Court are in pursuit of the same matter. To support the argument he cited the case of BP Zambia PLC v Interiand Motors Ltd9 where we stated that: “A party in dispute with another over a particular subject should not be allowed to deploy his grievances piecemeal in scattered litigation and keep on hauling the same opponent over the same matter before various courts. The administration of justice would be brought into disrepute if a party managed to get conflicting J15 decisions or decisions which undermined each other from two or more different judges over the same subject matter.” In that same case, we also stated that: “For our part, we are satisfied that, as a general rule, it will be regarded as an abuse of process if the same parties re-litigate the same subject matter from one action to another or from judge to judge”. It was argued that the events leading to this appeal have shown every element for multiplicity of actions, as such, the Judge was on firm ground when she held that: “the courts take very deem view of forum shopping as it is an abuse of court process, offends the dignity of the court, taints justice, prejudices the innocent party and is to all intents and purposes undesirable and uncalled for.” It was further argued that the appellant was simply attempting to put the integrity of the court into disrepute by putting different courts into the risk of conflicting each other. We were urged to dismiss this appeal for lack of merit. In response to ground 2, counsel for the 2nd respondent repeated, in the main, the arguments he made in the court below. In addition, he cited several other authorities regarding abuse of process and forum shopping, which we find unnecessary to restate here. He too urged us to dismiss the appeal with costs to be paid by the appellant’s counsel. » J16 We have considered the record of appeal and the arguments by counsel for the parties and the various authorities cited. The question raised by the appellant on ground 1 is whether the first action was nullified in its entirety whilst in ground 2 he contends that he was not engaged in forum shopping. Because of the position we have taken in this appeal, we have found it convenient to determine the two grounds of appeal simultaneously. Essentially, the appellant did not dispute, before the first Deputy Registrar, that the first action was wrongly commenced by writ of summons instead of originating summons. The court below reviewed our decision in Chikuta v Chipata Rural Council5 where we held that: “There is no case where there is a choice between commencing an action by a writ of summons or by originating summons .... Where any matter is brought to the High Court by means of an Originating Summons when it should have been by writ, the Court has no jurisdiction to make a declaration.” She further reviewed our decision in New Plast Industries v Commissioner of Lands and another8 where we held, inter alia that: “It is not entirely correct that the mode of commencement of any action largely depends on the relief sought. The correct position is that the mode of commencement of any action is generally provided by the relevant statute. Thus, where a statute provides for the J17 procedure of commencing an action, a party has no option but to abide by that procedure.” The court below then rightly took the view that the mode of commencement of an action goes to jurisdiction and that when the wrong mode has been used, as in this case, it was so fundamental as to be incurable and renders the proceedings a nullity. In Chisata v Attorney General2 we held that the discretion to strike out should only be exercised in clearest cases and that the best course in every case is to allow the whole matter to come to trial and leave it to the trial judge to decide what claims are sustainable. We are satisfied that the court below was alive to this decision when she stated that even where a matter is struck out, the parties will, if they so wish, still be at liberty to commence a fresh action using the correct process so that all matters in dispute are adjudicated upon if no prejudice will be occasioned to a party. The court also considered the effect of striking out of the writ by the first Deputy Registrar and concluded that it was to leave the case bereft of all content on which it was predicated and could have proceeded. It must be accepted that in this case the only proceedings were the writ and the summons to set aside the writ. J18 Therefore, the court below was on firm ground when it held that the action had been nullified in its entirety by the ruling of the first Deputy Registrar. The finding by the court below was actually supported by the events that were brought to the attention of the court. When the 2nd respondent challenged the mode of commencement (although this was done on the basis of the relief sought), the first Deputy Registrar struck out the writ for irregularity. He was alive to the provisions of Order 6 (2) of the High Court Rules and Order 2 of the RSC when he held that amendment to the writ was not possible but recommencing the action by a correct mode. After the writ was struck out, the appellant did not appeal or immediately recommence a fresh action or issue an originating summons under the first action. He only acted five months later, in February, 2005 when he began the second action. If, indeed, the appellant believed that he was supposed to resume the action by originating summons under the first action or that the first Deputy Registrar had not wholly set aside the writ, he would not have commenced the second action under a new cause number. J19 We are convinced that the appellant understood right from the start that he was required to initiate a fresh action and he did so. That was what prompted the court below to find that the appellant took the correct step to commence the second action. However, at the time he did so, the cause of action had become statute barred and for that reason it was dismissed by the second Deputy Registrar. We are not persuaded by the argument that the second action was commenced in error as this is an afterthought. Besides, if the appellant believed that the second action was commenced in error, he would have discontinued it even at the point the 2nd respondent applied to dismiss it for being statute barred and he would not have appealed against the dismissal in 2007. Actually, we find startling and misleading, the argument by counsel for the appellant that the second action was discontinued in order to pursue the third action. It is evident that the second action was dismissed by the second Deputy Registrar. It is also fundamental to remember that the first Deputy Registrar dismissed the 2nd respondent’s argument that the action was statute barred because he found that time started running in 1998 and that the six year period would expire sometime in 2004. J20 The second Deputy Registrar was aware of this finding when he observed that if indeed the date when the cause of action accrued in 1998 was not given, one would assume, that the cause of action accrued at least in December, 1998 and that to comply with the Limitation Act, the appellant should have brought his claim at least by the end of December, 2004. The record shows that the appellant only decided, about four years later, in January, 2009 to recommence the third action. We are satisfied that he only went back to the first action to defeat the limitation period and not because he was following the order of the first Deputy Registrar. On the facts of this case, the appellant cannot argue that the proceedings in the first action were not nullified in entirety or that the court below should have adjudicated on the matter on the merits instead of punishing him on technicalities. Furthermore, State Counsel Nchito conceded at the hearing of the appeal that there was only one cause of action that accrued to the appellant sometime in 1998. It was this cause of action that formed the basis of the three actions that the appellant commenced at different times. The view we take is that after the dismissal of the J21 second action for being statute barred, there was absolutely no subsisting cause of action for the appellant to purport to continue the action by originating summons under the first action in 2009, eleven years after the cause of action accrued to him. We agree with the learned Judge in the court below that recommencing the matter under the first action in these circumstances was indeed an abuse of court process, amounted to forum shopping and bordered on conduct calculated at misleading the court. There is absolutely no merit in the two grounds of appeal. We dismiss the appeal with costs here and below to be borne by the appellant himself. LC. MAMBILIMA CHIEF JUSTICE "RMS.' KAOMA SUPREME COURT JUDGE C.\KAJlMANGA SUPREME COURT JUDGE < J3 The 2nd respondent entered conditional appearance and then applied before the Deputy Registrar to set aside the writ for irregularity under Order 6 rule 1(2) of the High Court Rules, Cap 27 and to dismiss the action for being statute barred. He alleged in the affidavit in support, that the appellant’s claim touched on the construction of the 1st respondent’s Home Ownership Scheme and the determination of the appellant’s rights thereunder and so, the action was irregularly commenced; it should have been commenced by originating summons. It was also alleged that the action was statute barred; the appellant having slept on his rights since 1998. The gist of the appellant’s affidavit in opposition was that his action could not be dismissed simply because it was wrongly commenced and that the matter was not statute barred. The Deputy Registrar heard the parties. The main submission by counsel for the 2nd respondent was that under Order 6 rule 1(2) any matter that may be disposed of in chambers must be commenced by originating summons but the appellant’s action, which only sought a declaration by the court, a matter capable of being disposed of in chambers was commenced by a writ of summons making it irregular and ought to be set aside. On the