Bruno Mubanga and Ors v Lia Mpongo and Ors (CAZ APP/213/2021) [2024] ZMCA 18 (19 March 2024)

IN THE COURT OF APPEAL OF ZAMBIA CAZ APP/213/2021 HOLDEN AT LUSAKA (Civil Jurisdiction I BETWEEN: BRUNO MUBANGA MARRIEN MULENGA MUBANGA JL REulS~ 5p,."'1'· · LU CHRISPIN PHIRI + 3 UNKNOWN OTHERS IN OCCUPATION OF PLOT NO. F842/Y/2081 PRESIDENTIAL AREA AND 1 ST APPELLANT 2 ND APPELLANT 3RD APPELLANT LIA MPONGO (Suing as beneficial owner 1 ST RESPONDENT of plot No. F842 Presidential Area Ndeke Kitwe) KITWE CITY COUNCIL 2ND RESPONDENT THE ATTORNEY GENERAL 3RD RESPONDENT Coram: Mchenga DJP, Banda-Bobo, Sharpe-Phiri, JJA On: 20 th September 2023 and 19 th March 2024 For the Appellants: M. Nkhoma, Messrs Robert and Partners For the 1 st Respondent: K . Botha with S. M . Kalikeka, William Nyirenda & Company For the 2 nd Respondent: J . N . M. Luwawa with S. Lubinda, Kitwe City Council J2 For the 3 rd Respondent: S. K. Mofya , Assistant Senior State Advocate, Attorney Generals Chambers JU D GM ENT Mchenga DJP, delivered the judgment of the Court Cases referred to: 1 . Zambia Seed Company Limited v . Limited and Western Province SCZ/8/114/2013 West Co- op Haulage Co-operative Union 2 . Zambia Consolidated Copper Mine v . Chi l eshe (2002) Z . R . 86 3 . Western Province Co-operative Union , Zambia Textiles Limited (in Liquidation) v . Progress Kalemba and 29 Others SCZ/8/233/2014 Legislation referred to: 1 . The Rules of the Supreme Court of England (White Book) 1999 Edition 2 . The High Cour t Rules Chapter 27 of the Laws of Zambia Other works referred to: l . The Ha lsbury ' s Laws of England 3 rd Edition Volume 30 (London) Lexis Nexis INTRODUCTION c11 This appeal is against the ruling of the High Court (C . Chanda , J . ) , dated 9th April 2021, in which the 1 st , J3 2~ and 3 ~ appellants ' application to amend their defence was dismissed . BACKGROUND (21 On 14 th May 2020 , by writ of summons , the 1 st respondent commenced proceedings against the appe l lants seeking the following reliefs : 1. A declaration order that plot No . F842/Y/2081 Ki twe belongs to Lia Mpongo as per the certificate of Title No. issued by Ministry of Lands; 2. An order for damages for trespass, invasion, subdividing of the said plot ; 3 . An order for interim injunction restraining the defendants herein from occupying, constructing on the said plot or subdividing and subletting the said piece of land being plot No. F842/Y/2081 Kitwe and further from interfering, trespassing on the said piece of land and or interfering with the quiet occupation and possession of the said plot by the plaintiffs herein either by themselves, their agents , servants and or any other persons unknown ; 4. An order for the costs and interest on the amount found due; and J4 5. Any other relief the court may deem fit. C3J On 22 n d May 2020 , the appellants entered appearance ; they also filed the~r defences and a counter claim . C4J The 2 nd and 3 r d respondents were joined to the case at the instance of the appellants . csi The 2 nd respondent entered appearance and filed their defence on 15th September 2020 . C6J The trial commenced on 22 nd February 2 021 , and the 1 st respondent and her witness gave evidence and she closed her case . c1i On 2 6 th February 2 021 , the appellants launched the application which is now the subject of this appeal . cai The application was for leave to amend their de fence pursuant to Order 20 Rule 8 of The Rules Supreme Court (RSC) . C9J In the affidavit in support of the application , it was deposed that the purpose of the application was for them to place the issues in their defence into perspective . That would ensure that the issues in dispute were fully resolved. JS c101 In addition , it was submitted that the amendment was sought to respond to specific c l aims in the statement of claim . c111 The 1 st respondent opposed the application . Her objection was anchored on Order 20 Rule 11 of the RSC. c1 21 In addition , she contended that allowing the application would prejudice her because it would then compel her to re - open her case and give further evidence . c131 It was also pointed out that since the action was filed in May 2020 , the appellants had sufficient time prior to May 2021 , to make the subject application . c14 1 The 3 rd and 4 th respondents equally opposed the application. They were of the view that this was not a fit and proper case in which the trial court could exercise its discretion in favour of the appellants . c1s1 In reply , it was submitted on behalf of the appellants that it was important that they are al l owed to amend their defence because the issues they sought to include were critical to the case . DECISION OF THE TRIAL COURT J6 c161 The trial Judge opined that the main issue for his determination was whether the prejudicial effect associated with the granting of leave to amend at that stage of the proceedings , outweighed the justice it sought to attain . c111 He conc l uded that allowing the application would place the 1 st respondent in a position where she would have to re - open her case and give fresh evidence because the amendment would introduce a new cause of action . c101 The trial Judge was also of the view that the proposed amendments were not necessary because the issues in controversy were already clearly set out . The appellants would not suffer any prejudice if the application was not allowed as the proposed amendments had no bearing on their counterclaim . c191 He concluded that this was not a proper case in which he could exercise his discretion to allow late amendments , particularly that the appellants did not J7 give any reasons why the amendments were not sought earlier. GROUNDS OF APPEAL c201 The appellants , dissatisfied with the decision of the trial Judge have appealed to this court and advanced three grounds of appeal . c211 The grounds of appeal are couched as follows : 1. The court below erred in law and fact in not giving credence to the fact that under Order 20 Rule 8 of the Rules of the Supreme Court, amendments can be made at any stage of the proceedings. 2. The court below erred in law and fact in arriving at a decision that even without the proposed amendments the court was in a place to decide on real issues in controversy on , inter alia, the reasoning that the proposed amendments were being sought to be made in the defence and as such had no bearing on the and appellants' counterclaim totally ignoring the fact that the 1 st , 2 nd and 3 rd appellants' prayer for cancellation of JS the plaintiff's certificate of title was to be ground in the proposed amendments . 3 . The court below erred in law and fact in declining to grant the 1 s t , 2 nd and 3 rd appellants' application to amend defence and coun terclaim on the ground that the application was made after the 1 st respondent had testified and laid out her case while acknowledging that the 1 st respondent had not been cross-examined . ARGUMENTS IN SUPPORT OF THE GROUNDS OF APPEAL c221 In support of the 1 st and 2 nd grounds of appeal , the appellants submitted that it was important for them to amend their defence and counterclaim , so that they could include particulars of the fraud they had pleaded . c231 Such an amendment would assist the court to resolve the issues in dispute because even though they had pleaded fraud , they had not provided the particulars of the fraud . c241 On the basis of Order 18 Rule 8 sub rule 8 of the RSC, Order 20 Rule 8 of the RSC , Order XVIII of the High J9 Court Rules and the case of Zambia Seed Company Limited v. West Co-op Haulage Limited &. Western Province Co operative Union1 , it was submitted the defence could still be amended e ven though the 1 st respondent had already testified . This is because an amendment can be effected at any stage of the proceedings . c2s 1 Re l y i ng on the case of Zambia Consolidated Copper Mines Limited v. Joseph David Chileshe2 , it was submitted that since the amendment was not introducing a new defence , it was difficul t to appreciate the prejudice which could have been suffered by other litigants if the amendments had been allowed . [ 26 J As regards the 3 rd ground of appeal , it was submitted that it was erroneous fo r the trial Judge to hold that it was not necessary when the appe ll ant was seeking to introduce the particulars of the fraud that he had pleaded . [ 211 Halsbury' s Laws of England , 3 rd Edition Volume 3 paragraph 51 was referred to in aid of the proposition JlO that once fraud is plead, the particulars of the fraud must be set out . c2s1 They contended that their application for an amendment should not have been found to be late merely because the 1st respondent had already testified . The application was in good faith and intended to outline the issues for determination . RESPONDENTS ARGUMENTS c291 Al though the t hree responden t s each filed separate responses to the appellant ' s arguments , they took a common position on the three grounds of appeal . [30J In response to the 1 st and 2 nd grounds of appeal , they argued that the appellants cannot rely on Order 20 Rule 8 of the RSC or Order XVIII of the High Court Rules because the amendment they were see k ing to effect was in fact introducing a new defence . [311 The defence as is currently set out , is misrepresentation while the intended amendments seeks to introduce a new defence of fraud . Jll c321 As regards the 3 rd ground of appeal , they acknowledged that an amendment can be effected at any time but that it is dependent on the circumstances of the case . [33J They referred to cases including Zambia Seed Company Limited v. West Co-OP Haulage Limited and Western Province Co-operative Union 1 , Zambia Consolidated Copper Mine v. Chileshe2 and Western Province Co operative Union and Zambia Textiles Limited (in Liquidation) v. Progress Kalemba and 29 Others 3 and submitted that the trial judge rightly rejected the application to amend because it was made late in the day. [34J The respondent had already testified and closed her case and there was nothing to suggest that even with the exercise of due diligence, the deficiency would not have been noticed . CONSIDERATIONS AND DECISION OF THIS COURT [3sJ Al though the appellants filed arguments in reply to the respondents ' submissions , we do not find it necessary to reproduce them because they basically Jl2 emphasise the issues already raised in their arguments in support of the appeal . C36 J Since the three grounds of appeal are interrelated , we will deal with all of them at the same time . C3 7J In t he case of Zambia Consolidated Copper Mine v. Chileshe2 , Chitengi JA ., delivering the Judgment of the Supreme Court , pointed out as follows : "On the totality of the authorities we have considered, we are of the firm view that although Order 20 rule 5 gives the court power to allow the plaintiff to amend his writ or any party to amend his pleadings , it does not provide a wide discretion and does not allow a general relaxation of the governing principle that any amendment after the expiry of the limitation period will not be allowed unless it is just to do so and it will be just to do so if there are peculiar circumstances which make the case an exceptional one". C3B J Further , in the case of Zambia Seed Company Limited v. West Co-op Haulage Limited and Western Province Co- operative Union 1 , Malia , JS . ( as he then was) , delivering the judgment of the Supreme Court , said the following : "Al though the pendulum weighs or tilts in favour of granti ng amendments , courts of law are entitled to refuse amendments in deserving cases . Trial courts must J13 examine the application for amendment very carefully in the light of affidavit evidence . In the process, the courts should consider the peculiar facts of each case. In doing so the court is enjoined to take into account a number of principles or factors including: (a} the attitude of the parties in relation to the amendment ; (b} the nature of the amendment sought in relation to the suit ; (c} the question in controversy ; (d} the time the amendment is sought" (39J He went on to point out that ; "If the application for amendment was delayed , the court should be interested to know what caused the delay. If the reason for seeking the amendment is as a result of an important issue relating to the applicant's case corning to the applicants notice late, that should be a consideration in his favour. But the court should take into consideration also whether the applicant, as a person of due diligence and business acumen, ought to have procured the information earlier than the time he obtained it" (40) The thrust of the appellants ' case is that the proposed amendment is intended to provide particulars for the defence of fraud that the appellants have already pleaded. [411 Our examination of the defence filed on 22 nd May 2020 , does not point at any defence of fraud being pleaded by the appellants . J14 [42J In their counterclaim, the appellants pleaded that title to the plot which is the subject of this appeal was obtained through misrepresentation . [43J This being the case , the proposed amendment , which seeks to introduce fraud and particulars of t hat fraud , is an amendment that will introduce a new cause of action . [4 4 J The appellant has provided no justification whatsoever , for the late appl ication . We say late because it was made ·after the 1 st respondent had closed her case. [ 4 sJ All they have done is to strangely claim that they seek to provide particulars for the fraud that was pleaded , when no fraud was pleaded at all . [ 4 6J One of the considerations for the exercise of discretion to amend , postulated in Zambia Seed Company Limited v. West Co-op Haulage Limited and Western Province Co-operative Union 1 , was the stage in the proceedings , at which the application to amend is sought. J15 [47J In this case , even though the trial was sti l l in progress , the respon dent had closed her case . If the trial Judge had allowed the amendment , the r espon dent would have required to reopen her case and probably amend her pleadings too. That would have been prejudicial to the other parties . [4 BJ In the absence of a valid reason for seeking t he amendment and the respondent having closed her case , we are satisf i ed that the trial Judge properly exercised his discretion when he declined to allow the amendment . C49J Consequently , we find that this appeal is devoid of any merits and we dismiss it . csoi We award the respondents costs and in defaul t to be taxed. DEPUTY JUDGE P Q_jz J\ ............ ~ ... 1 ~ MA~ 2024 ..... . A. M . Banda - COURT OF APPE . A . Sharpe COURT OF APPEAL JUDGE