Cacitex (Z) Limited and Ors v Mpulungu Harbour Management Limited (APPEAL NO. 173/2007) [2013] ZMSC 87 (18 January 2013)

IN THE SUPREME COURT OF ZAMB IA HOLDEN AT LUSAKA (CIVIL JURISDICTION) APPEAL NO.173/2007 BETWEEN: CACITEX (Z) LIMITED CACITEX LOGISTICS (Z) LIMITED FEDERAL CARGO & LOGISTICS LTD 1 ST APPELLANT 2 ND APPELLANT 3RD APPELLANT AND MPULUNGU HARBOUR MANAGEMENT LIMITED RESPONDENT CORAM: 1\1:AMBILIMA, DCJ , CHIRWA AND MWANAMWAMBWA, JJS On 22 June 2010 and 18th January 2013 For the Appellants: For the Respondent: No appearance Ms L. C . KASONDE, Mulenga Mundashi & Co . MAMBILIMA, DCJ delivered the judgment of the Court. JUDGMENT CASES REFERRED TO: 1. DYSON VS ATTORNEY-GENERAL (1911) IKB 410 at page 418 2. JOHAN ADAM NETZ VS RT. HON. CHUTER EDE P. C. (1946) 1 ALL ER 636 3. RE DEPENDABLE UPHOLSTERY LTD (1936) 3 ALL ER 741 4. KARIBA NORTH BANK COMPANY LTD VS ZAMBIA STATE INSURANCE CORPORATION LTD (1980) ZR 94 5. WILLIAM DAVID WISE VS E. F. HARVEY LTD (1985) ZR 179 LEGISLATION AND WORKS REFERRED TO: 1. ORDER 53 OF THE HIGH COURT (AMENDMENT) RULES 1999 2. THE RULES OF THE SUPREME COURT 1999 (WHITE BOOK) 3. BULLEN AND LEAK PRECEDENTS OF PLEADINGS 12TH EDITION 110 When we heard this appeal we sat with our brother, CHIRWA, JS. He has since retired and this is therefore the majority decision of the Court. On the date when we heard this appeal, the learned Counsel for the Appellants did not attend Court. He had, however, filed his heads of argument. We decided to adjourn the matter for judgment. The appeal in this case is against the Ruling of the High Court, ti that was given on 16th March 2007, refusing an application by the Appellants to dismiss this action for failure to show a clear cause of action. The Appellants were 3 rd , 4 th and 5 th Defendants respectively in the Court below. The 6 th Defendant was SDV (Z) LIMITED and was the 4 th Appellant in this appeal. On 29 th May 2009, it filed a Notice withdrawing its appeal. The background of this case 1s that the Respondent filed an action in the High Court seeking, among others, the following claims: "1. 2. 3. Damages for conspiracy Damages for unlawful interference in the business of the Plaintiff A declaratory order that the Defendant should desist from interfering in the operations of the Plaintiff." An amended Statement of Claim was filed. Paragraphs 10 and 11 of the said Statement of Claim stated that: "10. The 1 st and 2 nd Defendants under purported exercise of their powers under the Act have continuously and persistently conspired and combined with the 3 rd , 4 th , 5 th and 6 th Defendants with the sole intention of having the concession agreement terminated unlawfully and injure the Plaintiff. 11. Pursuant to and in furtherance of the conspiracy pleaded in paragraph 6 hereof the Defendants have between them did the following:- (i) (ii) (iii) On 20th February 2003, the 1 st and 2 nd Defendants in purported exercise of their powers under the Act convened a meeting at which inter alia they resolved that Mpulungu Harbour be repossessed from the Plaintiff and that a new management structure be put in place. On 23 rd December 2004 the Defendants in further purported exercise of its powers under the Act conspired to procure the Government of the Republic of Zambia to unlawfully terminate the concession agreement without valid and justifiable reasons. The 1 st Defendant has prepared a paper intended to be submitted to the Organization for Economic Cooperation and Development (OECD) Global forum on competition on 17th February 2005 which paper has factual inaccuracies and misrepresentations with a view to get the OECD an influential grouping to bring pressure to bear on the Government of the Republic of Zambia to cancel the concession agreement. (iv) The 3 rd , 4 th , 5 th and 6 th Defendants acting as institution called the port users Committee have been lobbying the 1st, 2 nd Defendants and the Government of the Republic of Zambia to wrongfully terminate the concession agreement." Upon the settlement of this Amended Statement of Claim, the Appellants applied to dismiss the action for lack of a clear cause of action. The application was supported by an affidavit sworn by one, ALBERTO MWANSA. In paragraphs 5 to 9 the said MW ANSA deposed as follows:- "5. 6. that the paragraphs of the Statement of Claim which purports to support the Plaintiff's claim against the 3 rd , 4 th , 5 th and 6 th Defendants are 10 and 11 (iv); that paragraph 10 states that the 1st and 2 nd Defendants have continuously and persistently conspired and combined with the 3 rd , 4 th , 5 th and 6 th Defendants with the sole intention of having the concession agreement made between the Plaintiff of the first part and the Minister of Finance and Mpulungu Harbour Corporation Limited of the second and third part respectively terminated unlawfully and injure the Plaintiff; 7. that the particulars of conspiracy in so far as the 3 rd , 4th, 5th and 6th Defendants are concerned are found in paragraph 11 (iv) of the Statement of Claim and read as follows: 'The 3 rd , 4 th , 5 th and 6 th Defendants acting as an institution called Port Users Committee have been lobbying the 1 st and 2 nd defendants and the Government of the Republic of Zambia to wrongfully terminate the concession agreement." 8. that I verily believe that paragraphs 10 and 11 (iv) of the Statement of Claim do not comply with the requirements that: (a) the Statement of Claim must state in clear terms the material facts upon which the Plaintiff relies; and (b) it must show a clear cause of action. 9. that the Plaintiff has not stated material facts upon which it relies but merely alleges that the Defendants have conspired and combined to have the concession agreement terminated." The Respondent opposed the application and filed an affidavit in opposition sworn by SHASHINIKANTI PATEL, the Managing Director of the Respondent. In paragraph 7, he stated:- "I have been. advised by my advocates, Messrs Mulenga Mundashi & Co and verily believe the same to be true; that lacking or insufficiency of particulars is not a ground for dismissing an action and that the appropriate procedure would be to seek for further and better I wish to state that at this state, I need not give detailed particulars. facts which will be presented at the trial." When the Judge considered the application, it was his view that paragraph 11 of the amended Statement of Claim should not be looked at in isolation. It should be considered holistically together with paragraph 10 and that when this is done, it becomes very apparent that the Appellants' amended Statement of Claim does not fly in the teeth of Practice Direction No. 1 of 1999. This Practice Direction states:- "Each Statement of Claim must state in clear terms the material facts upon which the Plaintiff relies and above all must show a clear cause of action failing which the Statement of Claim may be struck out, set aside or the action be dismissed summarily." According to the Judge, paragraphs 10 and 11 of the amended Statement of Claim contain adequate allegations of conspiracy which the Respondent should prove at trial. The Judge It stated further that in his view, the Appellants were seeking evidence to prove the alleged conspiracy, which evidence could not be given at that stage and that at most, the Appellants could ask for further and better particulars. The Judge stated further that after he had perused the defence which was settled by the 6 th Defendant, he found that it had specifically transversed the allegations contained in paragraphs 10 e and 11 of the amended Statement of Claim. That the paragraphs transversing the allegations were not bare denials. That bare denials would have entitled the Respondent to enter judgment on admission pursuant to PRACTICE DIRECTION NO. 2 OF THE HIGH COURT RULES OF 1999 1 • According to the Judge, if the 6 th Defendant could settle a good defence to the paragraphs in contention, he saw no reason why the Appellants could not do so . It was his view that this matter should be determined on merits after a trial. He accordingly dismissed the application with costs for lack of merit. Dissatisfied with the Ruling of the Court, the Appellants have now appealed to this Court advancing two grounds of appeal, namely:- "l. 2. That the learned trial Judge misdirected himself when he held that paragraphs 10 and 11 of the Statement of Claim do not fly in the teeth of the Practice Direction No. 1 of the High Court (Amendment Rules 99). That the learned trial Judge erred in law and in fact when he held that the Plaintiff had given the alleged acts of conspiracy by the Defendants in paragraph 11 of the amended Statement of Claim. In support of the first ground of appeal, the learned Counsel for the Appellant referred us to paragraphs 10 and 11 of the amended Statement of Claim. According to Counsel, these pleadings allege conspiracy on the part of the Appellants but do not state where and ti when the Appellants could have been conspiring and 'combining'. He submitted that the pleadings lack particulars to show that the sole purpose of the Appellants' action to conspire and lobby the Government was to have the concession agreement between the Respondent and the Government terminated unlawfully. According to Counsel, it was clear from paragraphs 10 and 11 of the Statement of Claim that the Respondent does not have a clear cause of action. To support his contention, he referred us to Rule 1 of THE HIGH COURT (AMENDMENT RULES) 1999 1 which requires that a Statement of Claim must show a cause of action and state in clear terms the material facts relied on. The learned Counsel for the Appellants contended that the Respondent failed to provide a concise statement of the facts on which it relied and show a clear cause of action. He submitted that in the circumstances, such sanctions that h_ave been provided in the Rules must be invoked. He argued that it was not the duty of the Appellants to ask for further and better particulars as suggested by the learned Judge in his judgment. Coming to the 2 nd ground of appeal, the learned Counsel for the Appellants referred us to Order 18/ 12/ 10 of THE WHITE BOOK2 • The said rule states:- "In an action for conspiring to induce ·certain persons by threats to break their contracts with the Plaintiffs, the Defendant is entitled to particulars stating the name of each such contractor, the kind of threat used in each case, and when and by which Defendant such threat was made and whether verbally or in writing, identifying the document." Counsel submitted that in breach of Order 18/ 12/ 10 referred to above, the Respondent did not show the facts that it will rely upon to bring the transaction within conspiracy. Counsel further submitted that in commercial matters, where a Statement of Claim does not comply with the Practice Directions in Order 53 of the High Court Rules, the Court has power to strike out, set aside or dismiss the action summarily. He submitted that 9 this jurisdiction by the Court should be exercised strictly in commercial matters as opposed to general matters. That the Court's jurisdiction to strike out, set aside or dismiss an action summarily, is inherent as well as being specifically provided for in the rules of the Court. To buttress his submission, Counsel referred us to the case of DYSON VS ATTORNEY-GENERAL 1 in which the words of MOULTON L. J. in the case of JOHAN ADAM NETZ VS RT. HON. CHUTER ED PC2 were quoted. He said: "Now it is unquestionable that both under the inherent power of the Court and also under specific rule to that effect under the Judicature Act, the Court has a right to stop an action at this stage if it is wantonly brought without the shadow of an excuse, so that to permit the action to go through its ordinary stages up to trial would be to allow the Defendant to be vexed under the form of legal process when there could not at any stage be any doubt that the action was baseless." Counsel submitted that the Appellants' application to dismiss the action had merit since the Respondent failed to comply with the Practice Direction. He urged us to allow this appeal. In response, the learned Counsel for the Respondent dealt with the two grounds of appeal together. She also referred us to Practice Direction No. 1 of THE HIGH COURT (AMENDMENT RULES) 1999 1 and submitted that there are two requirements under this Practice Direction. Firstly, the material facts relied on must be disclosed and secondly; there must be a cause of action. Counsel argued that the material facts pleaded by the Respondent were that there was a conspiracy by the Appellants together with some other Defendants, to induce the 1st Defendant, George LIPIMILE and the 2 nd Defendant, Zambia Competition Commission to terminate the agreement with the Respondent. That the facts contained in paragraph 11 were that this was done by lobbying the Government to terminate the agreement. According to Counsel, the learned trial Judge rightly observed that paragraph 11 (iv) should not be looked at in isolation, but considered together with the rest of paragraph 11 and 10. The Judge found that when the paragraphs were considered together, it became apparent that the Statement of Claim contained adequate allegations of conspiracy which the Plaintiff needed to prove at trial. In support of her submission, Counsel referred us to the case of RE: DEPENDABLE UPHOLSTERY L TD3 wherein it was stated that: "where a material fact is pleaded, particulars will not be ordered if the facts are no more than the evidence by which the allegation is to be proved." Counsel also referred to the case of KARIBA NORTH BANK COMPANY LTD VS ZAMBIA STATE INSURANCE COMPANY LTD4 a High Court case, in which the Judge relied on the works of BULLEN and LEAKE, in PRECEDENTS OF PLEADINGS3 in which it was stated inter alia that: "What particulars are to be stated must depend on the facts of each case ... the function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial should be conducted fairly, openly and without surprises and incidentally to save costs. The object of particulars is to open up the case of the opposite party and to compel him to reveal as much as possible what is going to be proved at the trial." Counsel agreed with the lower Court's finding that the particulars - that the Appellants were seeking relate to evidence and as such were not necessary at that stage of pleadings. She also agreed that in the alternative, Appellants could seek further and better particulars. As to whether there was a cause of action 1n this case, Counsel submitted that paragraphs 10 and 11 of the amended Statement of Claim show that the cause of action is conspiracy by the 3 rd , 4 th, 5 th and 6 th Defendants to induce the 1st and 2 nd Defendants to breach their concession agreement with the Plaintiff. Counsel relied on the case of WILLIAM DAVID WISE VS E. F. HERVEY LIMITED5 in which this Court stated that a cause of action is established "when an actual situation is alleged which contains facts upon which the Defendant can attach liability to the Plaintiff or up on which he can establish a right or entitlement to a judg ment in his favour against the Plaintiff for the amounts claimed." Counsel submitted that the Appellants, in this case, are aware of the cause of action as they have helpfully referred to Order 18 / 12 / 10 of the WHITE BOOK which states what the particulars of an action for conspiracy should be . Counsel contended that a cause of action in this case has been established but the Appellants would like further and better particulars of that cause of action other than those which have already been pleaded. She stated that the learned trial Judge rightly observed that the 6 th Defendant was able to settle a defence that did not consist of bare denials in response to the sa me paragraphs and there was the ref ore no reason • why the Appellants could not have done the same. She urged us to dismiss this appeal with costs. We have considered the submissions of Counsel and the issues raised in this appeal. The issues raised in the two grounds of appeal are intertwined. We will therefore deal with them together. The main issue in contention in this case is whether paragraphs 10 and 11 of the Amended Statement of Claim complies 9 VJith Practice Direction No. 1 of Order 53 of the High Court Rules on commercial actions. The requirements of the law in the Practice Direction are very clear. A Statement of Claim must: 1. state in clear terms the material facts upon which the Plaintiff relies; 2. show a clear cause of action. The sanction for failing to meet this criteria is given in the Rule. A Statement of Claim can be struck out, or set aside or otherwise the whole action can be dismissed. Against this backdrop, the question is whether the paragraphs complained of 'above all' show a clear cause of action or indeed whether the material facts have been stated. The learned Counsel for the Appellant has referred us to Order 18/ 12/ 10 of the White Book in which it is stated that in an action for conspiracy, " .•.• to induce certain persons by threats to break their contract ... ", the Defendant 1s entitled to particulars. The Rule states that the name of the contract, the kind of threat and whether or not the threats were in writing should be indicated. The learned Counsel for the Respondent on the other hand, referred us to the works of BULLEN and LEAKE in PRECEDENTS OF PLEADINGS3 quoted in the case of KARIBA NORTH BANK VS ZAMBIA STATE INSURANCE4 • These authors further stated: The precise degree of particulars required in any particular case cannot of course be predicated, but as much contents and particulars must be insisted on as is reasonable having regard to the circumstances and nature of the acts alleged." Paragraph 10 of the Amended Statement of Claim alleges that the 1st and 2 nd defendants "continuously and persistently conspired and combined with the 5 th and 6 th Defendants" to have the concession agreement between the e Respondent and the 1st and 2 nd Defendants terminated. The actions 'in furtherance of the conspiracy' are outlined in paragraph 11. In sub-paragraph (iv) of paragraph 11, the Appellants, together with the 6 th Defendant are purported to have acted through the Port Users Committee to lobby the 1st and 2 n d Defendants and the Government of Zambia to "wrongfully , . . terminate the concession agreement." Sub-paragraphs (i), (ii) and (iii) give particulars, including dates , on which certain actions were done to allegedly induce the cancellation of the concession agreement. We agree with the Judge in the Court below that taken as whole, paragraphs 10 and 11 of the amended Statement of Claim do give sufficient facts that disclose a cause of action. It is on record that the 6 th Defendant did render a defence traversing the same allegations. Indeed, as the learned Judge observed, if the 6 th Defendant could render a proper defence that did not consist of bare denials, there was no reason why the Appellants could not have done the same. We also agree with the trial Judge that the Appellants seemed to have been soliciting for evidence. Evidence to prove the allegations can only be given at the trial of the matter. As at now, paragraphs 10 and 11 give sufficient details on the case against the Appellants. Accordingly, we find no merit in this appeal. It is dismissed with costs . I. C. Mambilima DEPUTY CHIEF JUSTICE 14