Mwale v Mtonga and Anor (Appeal 6 of 2012) [2015] ZMSC 184 (19 August 2015)

JI SCZ Judgment No. 25 of 2015 P. 646 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 006/2012 SCZ/8/256/2011 (Civil Jurisdiction) BETWEEN: DANIEL MWALE (Male) APPELLANT AND NJOLOMOLE MTONGA (Sued as Administrator of the estate of the late Gabriel Siwonamutenje Kapuma Mtonga) 1st RESPONDENT THE ATTORNEY GENERAL 2nd RESPONDENT Coram: Mwanamwambwa, Ag. DCJ, Muyovwe and Malila, JJS on 3rdMarch, 2015 and 19th August, 2015 For the Appellant: Mr. G. B. Chibangula, Messrs. GDC Chambers For the lstRespondent: Mr. B. Siachitema, Messrs. Lusitu Chambers For the 2ndRespondent: Mrs. M. M. Kawimbe, Deputy Chief State Advocate, Attorney General’s Chambers JUDGMENT Malila, JS, delivered the Judgment of the court. Cases referred to:- 1. William David Carlisle Wise v. E. F. Hervey Limited (1985) ZR 17. 2. Anderson Kambela Mazoka and Others v. Levy Mwanawasa and Others (2005) ZR 138. 3. Zambia National Provident Fund Board v. Kamalondo (1986) ZR 55. J2 P. 647 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. Admark Limited v. Zambia Revenue Authority (2006) ZR 43. Kettleman v. Hansel Properties Limited (1987) AC 189. Letung v. Cooper (1964) ALL ER 582. Bogot v. Stevens Scania and Co. (1964) 3 ALL ER 582. Willaim Mcltroy (Swindon) Ltd and Others v. Quinn Insurance Ltd. (2010) EWHC 2448. Stanley Mwambazi v. Morester Farms Ltd. (1977) ZR 108. Water Wells Ltd. v. Jackson (1984) ZR 98. Wilson Masauso Zulu v. Avondale Housing Project Ltd. (1982) ZR 17. United Engineering Group Ltd v. Mackson Mungala and Others, SCZ Judgment No. 4 of2007. Ndhlovu v. Al Shams Building Materials Company Ltd and Another (2002) ZR 48. BP Zambia Pic. v. Zambia Competition Commission, Total Aviation and Export Limited, Total Zambia Ltd., SCZ Judgment No. 20 of 2011. Royal Trading Zambia v. Zambia Revenue Authority, (2000) ZR 86. Barclays Bank (Z) Pic. v. Zambia Union of Financial Institutions and Allied Workers SCZ Judgment No. 12 of2007. Mususu Kalenga Building Limited and Another v. Richmans Money Lenders Enterprises, SCZ Judgment No 4 of 1999. Josia Tembo and Henry Jawa v. Peter Mukuka Chitambala, 2005/HP/0208. Barclays Bank Zambia Pic. Staff Pension Fund, Barclays Bank (Z) Pic v. Augustine Mwanamuwila & 58 Others and Hector Cyprian Phiri and 63 others, Appeal No. 70 of2009. Ronex Properties Limited v. John Laing Construction Limited and Others (1983) 3 ALL ER 961 Read v. Brown (1888) 22 QBD 128 at 131. Howard and Others v. Fawcetts and Others (2006) UKHL 9 Other authorities referred to:- 1. The Limitation Act, 1939 of the United Kingdom. 2. The Law Reforms (Limitation of Actions) Act, chapter 72 of the laws of Zambia. 3. Order 18 Rule 8 of the Rules of the Supreme Court. 4. Section 28(1) of the Landlord and Tenant (Business Premises) Act, chapter 193 of the laws of Zambia. 5. Halsbury’s Laws of Englands, Volume 28 at paragraph 846. J3 P. 648 This appeal contests the Ruling of the High Court (Lengalenga J.) upholding a point in limine raised by the 1st respondent, questioning whether the proceedings before the High Court were not incompetent for being statute barred under the Limitation Act, 1939 of the United Kingdom. The brief background facts were that the appellant, by writ of summons dated 30th January, 2007, commenced proceedings in the High Court claiming a declaration that (he as the plaintiff in that court) is the sole owner of the property known as subdivision No. 20 of Farm 378a,Lusaka, to the exclusion of the 1st respondent (who was the defendant), and for an order that the Chief Registrar of Lands and Deeds rectifies the Lands Register by cancelling certificate of title number LI 133, allegedly issued in error, and issuing in place thereof, a new one in the sole name of the plaintiff. The 1st respondent entered appearance and defence, denying the appellant’s claim, stating in effect that the 1st respondent was properly a tenant in common with the plaintiff in respect of the subject property, and that there was no error on the part of the Registrar in issuing the certificate of title. J4 P. 649 Pleadings were closed and the matter duly set down for trial. The 1st respondent’s advocates then filed in a notice of intention to raise a preliminary issue pursuant to Section 4 (3) of the Limitation Act, 1939 of the United Kingdom. The learned counsel for the appellant defined the point in limine as being: “whether the plaintiff is legally entitled to proceed with this action contrary to section 4(3) of the Limitation Act, 1939 (UK) which bars actions for recovery of land after twelve years has elapsed in light of the fact that the plaintiffs cause of action arose sometime in 1991 when the certificate of title was issued.” On 3rd December, 2010, the learned Judge in the court below heard the arguments for and against the preliminary issue from the learned counsel for the parties. In her Ruling which occasioned grievance to the appellant, delivered on 31st October, 2011, the preliminary issue raised by the 1st respondent was upheld. The learned Judge reasoned that contrary to the contestation of the appellant’s learned counsel, the Limitation Act, 1939 of the United Kingdom, applies in this jurisdiction subject to the amendments set out in the Law Reform (Limitation of Actions) Act, Chapter 72 of the Laws of Zambia; that on the facts before her as pleaded, the appellant’s course of action arose sometime in 1991 when the certificate of title was issued, but the J5 P. 650 plaintiff sat on his rights until after the expiry of twelve years. The action was, according to the learned Judge, statute barred. Disenchanted by the Ruling which was barely five pages, the appellant, after changing its Advocates, filed in a memorandum of appeal, fronting five grounds. In the first ground, the appellant alleges a misdirection on the part of the learned judge below when she entertained and allowed a preliminary issue based on the Limitation Act, 1939 (United Kingdom) and dismissed the appellant’s entire action with costs when the statute of limitation was never specially and specifically pleaded through the defence and counter claim. The second ground impunges the learned judge’s holding that the appellant’s entire action was not properly before her, as the 1st respondent had not waived his right to raise a preliminary issue by entering unconditional appearance and defence. In the third ground of appeal, the appellant takes issue with the judge’s finding that the cause of action arose as far back as 1991 and, therefore, that the appellant’s action, which was commenced in 2007, was caught up by Section 4(3) of the J6 P. 651 Limitation Act, 1939 (United Kingdom). This, according to the appellant, was a misdirection because the period of limitation begun to run in 2006. Ground four protests the learned Judge’s dismissal of the appellant’s entire action on a preliminary point rather than allowing the matter to proceed to trial so that the merits of the claim was evaluated. In ground five, which we think is not substantially dissimilar from ground four, the appellant invokes the spirit of justice, arguing that equity and justice dictate that the matter be heard in full before another judge. At the hearing of the appeal on 3rd February, 2015, Mr. Chibangula, learned counsel for the appellant, applied for leave to file in the heads of argument out of time. Mr. Siachitema, for the 1st respondent, made a dignified objection, pointing out that the appellant had three years to file the heads of argument; had written to the court complaining about the delay in disposing of this matter, and that the lstrespondent, who only received the record of appeal barely two weeks before the hearing date, had J7 P. 652 filed its heads of arguments. Mrs. Kawimbe, learned counsel for the 2nd respondent did not object to the application. We noted, with concern, that the appellant had filed in a certificate of urgency on 22nd May, 2012, and yet was not, in truth, ready to proceed with the appeal if we were to hear it then. While we took a dim view of this kind of conduct by counsel, we reluctantly allowed the application and permitted the appellant to file in his heads of argument out of time and further, because of the delay already occasioned, we encouraged all the parties to rely on the written heads of arguments as filed, unless there was absolute need to supplement the written arguments. In his written heads of argument, Mr. Chibangula argued the five grounds of appeal globally. He started by arguing the point raised in the preliminary issue, namely, that the barring of the action under the Limitation Act, was not specially and specifically pleaded in the 1st respondent’s defence and counter claim. A party, according to Mr. Chibangula, ought to plead his case so as not to take the other party by surprise. What the 1st respondent did was to raise a statutory defence which was not J8 P. 653 pleaded, and that this was a clear violation of established principles of law and practice. With the intention of persuading us to accept this submission, the learned counsel relied on our judgment in the case of William David Carlisle Wise v. E. F. Hervey Limited1, where we held that: “pleadings serve the useful purpose of defining the issues of fact and of law to be determined; they give each party distinct notice of the case intended to be set up by the other; and they provided a brief summary of each party’s case from which the nature of the claim and defence may be easily apprehended.” To the same intent, Mr. Chibangula cited and quoted passages, from a wealth of case law that has crystallised our view on the purpose and necessity of pleadings. These include the cases of Anderson Kambela Mazoka and Others v. Levy Mwanawasa and Others2, Zambia National Provident Fund Board v. Kamalondo3 and Admark Limited v. Zambia Revenue Authority4. The learned counsel for the appellant then adverted to Order 18 Rule 8 of the rules of the Supreme Court. This Rule provides that: J9 P. 654 “a party must in any pleading subsequent to a statement of claim plead specifically any matter, for example... the expiry of any relevant period of limitation, found or any fact showing illegality which he alleges makes any claim or defence of the opposite party not maintainable; or which, if not specifically pleaded, might take the opposite party by surprise; or which raises issues of fact not arising out of the preceding pleadings.” It was the learned counsel’s contention that the 1st respondent, having failed to plead limitation in his defence, or indeed to enter appearance conditionally, waived his right to later raise the issue as he now purports to do. To further fortify this position, the learned counsel called in aid the persuasive holding by the House of Lords in Kettleman v. Hansel Properties Limited5 where the court stated, among other things, that: “if a defendant decides not to plead a limitation defence and to fight the case on the merits he should not be permitted to fall back upon the pleas of limitation as a second defence at the end of the trial when it appears that he is likely to lose on the merits.” In the alternative, the learned counsel for the appellant submitted on what the appellant raised in ground three of the appeal, namely that the appellant’s cause of action did not arise in 1991 as the learned judge below held, rather it arose on 19th J10 P. 655 September, 2006, when the Commissioner of Lands wrote to the appellant refusing to issue a certificate of title to the subject property in the sole name of the appellant. We were referred to the averments in the statement of claim showing that following the issuance by the Chief Registrar of Lands and Deeds, of a certificate of title in the joint names of the appellant and the late S. K. Mtonga, the appellant wrote to the Chief Registrar of Lands and Deeds asking him to rectify the mistake and issue a certificate in the appellant’s sole name. The Chief Registrar’s letter declining to rectify the register was only dated the 19th of September, 2006. Therefore, according to the learned counsel for the appellant, the cause of action only arose on 19th September 2006. For this proposition, the learned counsel for the appellant cited a wealth of authorities and judicial pronouncements from within the jurisdiction and far afield. More purposely, counsel referred to the guidance we gave in William David Carlistle Wise v. E. F. Hervey Ltd1 that: “[a] cause of action is disclosed only when a factual situation is alleged which contains facts upon which a party can attach liability to the other upon which he can establish a right or entitlement to a judgment in his favour against another.” JI 1 P. 656 The English cases of Letung v. Cooper6, Bogot v. Stevens Scania and Co.7 and Willaim Macllory (Swindon) Ltd and Others v. Quinn Insurance Ltd.8, were also cited in support of the appellant’s position regarding the interpretation of the term ‘cause of action’. Given the position taken by the appellant as to when the cause of action arose, the learned counsel argued that the lower court should have allowed the matter to proceed to trial since the question of limitation of action was itself contentious, and required the parties to adduce evidence over it at trial. Mr. Chibangula then, quite advisedly reproduced passages from various cases containing judicial dicta reflecting preference for full trial of matters, rather than determination on preliminary point. The learned counsel next turned to the argument that it is desirable for matters to be determined on their merit and in finality rather than on technicalities and in piece-meal. Stanley Mwambazi v. Morester Farms Ltd9, and Water Wells Ltd. v. J12 P. 657 Jackson10 were cited and relied upon. Counsel’s contention, as we understand it, is that since in the present case, there appeared to have been cognizable and weighty questions for the trial judge to determine, the judge in the court below should have been loath to accept the preliminary issue and should have instead proceeded to hear the evidence around it in keeping with the guidance we gave in Wilson Masauso Zulu v. Avondale Housing Project Ltd11. The learned counsel for the appellant ended his submissions by beseeching us to allow the appeal and remit the matter to the High Court for trial before another judge. In response to the arguments made on behalf of the appellant, the learned counsel for the lstrespondent equally filed in detailed heads of argument and a copious list of authorities, countering the appellant’s position. On ground one, the learned counsel argued that a plea of statute bar can be raised either as a defence or as a preliminary point. He referred us to our decision in United Engineering Group Ltd v. Mackson Mungala and Others12 where, prior to J13 P. 658 the matter being heard on its merits, counsel for the appellants raised a preliminary objection to the proceedings on the grounds that the respondent did not commence that action within the required three months period under Section 28(1) of the Landlord and Tenant (Business Premises) Act, chapter 193 of the laws of Zambia. We held in that case that a plea of statute bar can be taken as a defence or as a preliminary point. Counsel also cited the case of Admark Limited v. Zambia Revenue Authority4 in which we stated that a party may at trial raise a point of law even though it was not pleaded in his defence. In that case we held that although the respondent introduced the statute of limitation at the end of the trial, it still defeated the plaintiff’s action which was not brought within the time limits set by section 164 (4) of the Customs and Excise Act, chapter 322 of the laws of Zambia. The learned counsel quoted verbatim, what we stated in the Admark Case4 in regard to Order 18 Rule 11 of the Rules of the Supreme Court, (White Book 1999 Edition) as follows: “The effect of this rule is that if a party intends to raise a point of law on the facts as pleaded, it is a convenient course to do so in the pleadings. Although, this course of action is desirable as it would ensure that the issues in dispute are defined at the earliest opportunity and might even have the effect of avoiding trial, J14 P. 659 however, this requirement is not mandatory. In the case of Independent Automatic Sales Limited v. Knowels and Forster (1962) 3 All ER 27, it was held that a party may at the trial raise a point of law open to him even though it was not pleaded in his defence.” It was the 1st respondent’s counsel’s submission that the case authorities cited by the learned counsel for the appellant do not apply to the present case. He urged us to dismiss this ground of appeal. Under ground two of the appeal, the learned counsel for the lstrespondent countered the arguments advanced by counsel for the appellants. Mr. Siachitema supported the lower court’s dismissal of the appellant’s action on the basis of section 4(3) of the Limitation Act, 1939 (UK) as, not to allow the defendant to raise limitation of action would have amounted to sanctioning an estoppel against a statute. Counsel contended that the fact that the 1st respondent entered an unconditional appearance and defence and counter claim, without raising the limitation period, did not amount to waiver by the respondents, of the right to raise the statutory limitation as a bar to the action. According to the learned J15 P. 660 counsel, there can be no estoppel against a statute. The case of Ndhlovu v. Al Shams Building Materials Company Ltd and Another13 was relied upon as authority for this proposition. Furthermore, according to the learned counsel, Section 4(3) of the Limitation Act, 1939 (UK) was raised as a preliminary issue. This situation was thus governed by order 33, Rule 3 of the Rules of the Supreme Court (White Book, 1999 edition) which allows the court to order any question arising in a cause or matter, whether of fact or of law, and whether raised in the pleadings or not, to be tried before, at or after the trial of the cause or matter. In regard to ground three, the 1st respondent’s position was that there was no misdirection by the lower court in holding that the appellant’s cause of action arose in 1991 and that by commencing the action in 2007, the appellant found himself entrapped in the web set up by section 4(3) of the Limitation Act 1939 (UK). The subject certificate of title in this matter was issued in April 1991 while the action to challenge it was only mounted some sixteen years later in 2007. According to Mr. Siachitema, the cause of action accrued in 1991 when the alleged error was made on the certificate of title. The learned counsel, J16 P. 661 like his learned counterpart for the appellant, referred us to the case of William David Carlise Wise v. E F Hervey Limited1 on when a cause of action arises. He submitted that the issuance of the subject certificate of title by the Commissioner of Lands on 9th April, 1991 formed the proper basis for attaching liability on the Commissioner of Lands, and that is when the right or entitlement to sue was established in favour of the appellant. The learned counsel then alluded to numerous factual matters all in an effort to persuade us to accept the position he took that the cause of action accrued in 1991. Under ground four Mr. Siachitema’s arguments were anchored on the interpretation of Order 14 and Order 33 Rule 7 of the Rules of the Supreme Court (White Book, 1999 edition). Counsel submitted that a court is well within its power to dismiss an action on a point of law under Order 14 A/l, which the learned counsel quoted ipssismaverba. He submitted further that the requirements under Order 14 A/l were met in the present case. J17 P. 662 As regards Order 33, Rule 7, it was the contention of the learned counsel that this Order, too, entitles the court to dismiss an action where it appears to it that the decision on any question or issue arising in a cause or matter, and tried separately, disposes of that cause or matter. In the present case, it was counsel’s contention that the lower court properly considered the documentary evidence on record and dismissed the appellant’s entire action based on a point of law raised by the 1st respondent. In his response on ground five, the learned counsel for the 1st respondent submitted that allowing the appellant’s action to proceed to full trial will amount to overriding the provisions of a statute - an extension of time, which would be beyond the intendment of the Limitation Act, 1939 (UK). The learned counsel further submitted that the decided case authorities which have settled the imperious need for matters to be decided on their merits rather than on technicalities, do not override statutory provisions which set time limits in respect of which courts have no power of extension. The learned counsel cited the case of BP J18 P.663 Zambia Pic. v. Zambia Competition Commission, Total Aviation and Export Limited, Total Zambia Ltd14, and that of Royal Trading Zambia v. Zambia Revenue Authority15 in support of that submission. The court, insisted the learned counsel for the 1st respondent, has no discretion to enlarge prescribed statutory limitation periods. The learned counsel then referred to us excerpts and quotations from judicial dicta and books on the legal basis underlying the Limitation Act 1939, and essentially repeated his prayer that the whole appeal should be dismissed. The learned counsel for the 2ndrespondent also filed in written heads of argument on which she placed reliance. On ground one, Mrs. Kawimbe’s argument was not dissimilar to that advanced by the learned counsel for the first appellant on the same ground. The learned counsel also submitted that in Admark Limited4 it was held that it is not mandatory for a point of law, such as a statute of limitation defence to be specifically pleaded J19 P. 664 before it can be raised. The gist of counsels’ submission is that a point of law need not be pleaded before it can be raised. The learned counsel for the 2nd respondent then made a very interesting submission in the alternative. It was, paradoxically, that the appellant should be barred from raising the issue of the statute of limitation not having been pleaded. According to the learned counsel, when the preliminary issue was argued before the court below, all the parties were present, and the appellant did not raise the issue she is now raising, but rather adopted a totally difference course of argument, namely that the English Limitation Act 1939 was not applicable to Zambia. The learned counsel for the 2nd respondent cited the cases of Barclays Bank (Z) Pic. V. Zambia Union of Financial Institutions and Allied Workers16 and that of Mususu Kalenga Building Limited and Another v. Richmans Money lenders Enterprises17, in both of which we affirmed the principle that an issue not raised in the court below cannot be raised for the first time in this court. She urged us to maintain that position in respect of this case. J20 P.665 Under ground two Mrs. Kawimbe defended the learned High Court judge in dismissing the appellant’s action for being statute barred notwithstanding that the respondent filed in their defences without raising the same. She quoted verbatim the provisions of Order 14 A rule 1 of the White Book which allows the court to entertain, either on application by a party, or suomoto, a question of law or construction of any document arising in any cause or matter at any stage of the proceedings. She also adverted to Order 33 rule 3 of the White Book (1999 edition) which empowers the court to order any question or issue, whether of fact or law or partly fact and partly law, and whether raised in the pleadings or otherwise to be tried before, at or after the trial of the cause or matter and give directions as appropriate. The learned counsel reinforced her argument by citing the High Court case of Josia Tembo and Henry Jawa v. Peter Mukuka Chitambala18, and quoted Mutuna J. where he held that an application to raise preliminary issues is governed by Order 33 rule 3 of the White Book, and that this order does not stipulate the time limit within which the application can be made. We can state at once that we do not want to make much of J21 P. 666 Mutuna J’s judgment in this court which judgment is, in the order of the hierarchy, of very limited usability. We see not much value in citing High Court decisions in this court on points where this court’s authorities are not only available, but are clear and instructive. In relation to the alternative submission on this ground, Mrs. Kawimbe repeated the argument that she made in respect of her alternative plea under ground one. In regard to ground three, the learned counsel for the 2nd respondent, in her short response, posited that the judge below was on firm ground when she dismissed the matter for being statute barred because the evidence on record shows that the dispute in question dates back to 1991. In this connection, she referred us to the letter dated 25th February, 1994, in the record of appeal to show that the dispute over the property existed before that letter was written over twelve years ago. Mrs. Kawimbe argued grounds four and five together. In her brief argument, she contended that the judge in the court below was on firm ground when she dismissed the matter on a point of J22 P. 667 law as she had the power under Order 14A Rule 1 and 2, to do so. The learned counsel urged us to dismiss the whole appeal for lacking merit. We have paid the closest attention to the submissions of counsel for all the parties in this case. The Limitation Act 1939 (UK) continues to give rise to considerable difficulty to litigants. As we see it, the two questions which underscore the issues determinative of this appeal raised are first, whether the statute of limitation, where it is not specifically pleaded, can be raised outside the pleadings to, as it were, shootdown an action. Second, at what point in time does a cause of action accrue to a party. It is scarcely necessary to recount how the common law relating to limitations of actions developed. Mr. Chibangula made very determined submissions on the important purpose pleadings serve in defining the case that either party to litigation is going to meet at trial. Pleadings are intended to prevent either party from springing up a surprise at trial, or allowing an issue to creep J23 P. 668 up out of the woodwork. They serve the additional useful purpose of isolating the issue of law and fact that will fall to be determined by the trial court. We have been very consistent in restating the significance of pleadings, and there is now a rich corpus juris of judicial dicta by this court on the subject. The learned counsel for the appellant did indeed allude to some of it. In the view we take, it is unnecessary to undertake a review, as the learned counsel for the appellant has attempted to do, of the wealth of case law which has ciystalised the functions of pleadings in our system of justice save to say that the policy behind time limitation periods is to bar stale claims from being resurrected as it would be injustice to allow proceedings to hang over a potential defendant’s head indefinitely. This is particularly so where witnesses’ memories have faded, and the quality of justice likely to be compromised. As we see it, the real question we have to consider here is whether in the present case, there was a real requirement for the pleadings, the defence of the respondent in the High Court, to raise the statute of limitation, to bar the appellant’s (plaintiff’s) action. J24 P. 669 We recently, in the case of Barclays Bank Zambia Pic. Staff Pension Fund, Barclays Bank (Z) Pic v. Augustine Mwanamuwila & 58 Others and Hector Cyprian Phiri and 63 others19, stated in regard to pleadings that: “As a general rule, all pleadings must be brief avoiding unnecessary materials such as citations from statutes or proposition of law; failure to state the statute relied on, however, is treated only as an irregularity and will not nullify the proceedings, document, judgment or order (see paragraph 12 of Halsbury’s Laws of England volume 36 (1)).” It is clear then from this that where a statutory defence is pleaded, it will not fail merely because the precise details of the statute relied upon is not specified. Similar views were carried in William David Carlistle Wise v. E. F. Hervey Limited1 where we stated that: “whenever a party seeks to rely on any right or remedy conferred by a statute, and though it is not necessary to mention in the pleadings the statute in question, the pleading must nonetheless set out all the material facts which, if proved, establish his right or remedy under the particular statute.” The rules for special pleadings are well-known; special defences have to be expressly pleaded (see Order 18/8/1 RSC, 1999 Edition). The learned authors of Halsbury’s Laws of England5, Volume 28 at paragraph 846 state as follows: J25 P. 670 “the limitation period will normally operate to bar an action only if successfully raised by way of defence.” In Ronex Properties Limited v. John Laing Construction Limited and Others20, it was stated that: “where it is thought to be clear that there is a defence under the Limitation Act, the Defendant can either plead that defence and seek the trial of a preliminary issue or in a very clear case, he can seek to strike out the claim on the ground that it is frivorous, vexatious and an abuse of the process of the court and support his application with evidence.” In that case Donaldson, LJ, stated at page 965 as follows: “There are so many cases in which the expiry of limited period makes it a waste of time and money to let the plaintiff go on with his actions. But in those cases, it may be impossible to say that he has no reasonable cause of action. The right course is, therefore for a Defendant to apply to strike out his claim as frivorous and vexatious and an abuse of the process of the court on the ground that the statute of limitation will be pleaded, the Defendant can, if necessary, file evidence to that effect, the plaintiff can file evidence of an acknowledgment or concealed fraud or any matter which may show the court that his claim will be able to in, I suspect, most cases what was done in R. v. DPP (1973) 2 ALL ER 935, strike out the claim and dismiss the action.” In the present case, the respondent did not plead that the action is statue barred. He instead applied through a preliminary issue to have the matter dismissed. In Admark Limited v. J26 P.671 Zambia Revenue Authroity4 on which both counsel for the respondents relied, we stated that: “a party may at the trial raise a point of law, even though it was not pleaded in his defence.” In the present case, the respondent opted to raise the statute of limitation as a legal point to curtail the appellant from further proceeding with his action. We are inclined to take the position that to raise a statutory bar of an action on account of the statute of limitation is to bring up for determination a legal point that can be raised at any time. It need not be pleaded, though it would be desirable if it were. We, in this regard, reiterate the decision we took in United Engineering Group Limited v. Mackson Mugala and Others12 where we stated that a plea of statute bar can be taken as a defence or a preliminary point. Where the defendant wishes to raise statute bar as a defence in his pleadings, he should comply strictly with the requirements for pleading a special defence as directed in Order 18 Rule 8 (1) of the Rules of the Supreme Court. Where, however, it is raised as a preliminary point, no such requirement is necessary. J27 P. 672 We hold, therefore, that the respondent was entitled to raise the statute bar as a legal point through a preliminary issue, and the court was obliged to deal with it as such, as it in fact did. We do not think that the dicta of the House of Lords quoted by the learned counsel for the appellant in the case of Kettleman v. Hansel Properties Limited5 would have any application here. What the court envisaged in that case was a situation where an issue of statute bar is not pleaded by the defendant who chooses to go head into the trial, and only raises limitation after the matter has been considered on the merits. The position here is different in that, although the statutory limitation defence was not pleaded, the defendant raised it as a preliminary issue before the matter was heard on the merits at trial. Ground one of the appeal is bound to fail. In the second ground, we were urged to determine whether, by entering an unconditional appearance and a defence, the respondents waived their right to raise the preliminary issue on the statute of limitation. J28 P. 673 We have no hesitation in holding that no such waiver ever occurred. The statute of limitation when raised, brings forth a serious legal question as to whether the court has jurisdiction to entertain the action before it, given that it was brought outside the limitation period. It hardly bears repeating that the issue of jurisdiction is a threshold question and a lifeline for continuing any proceedings. Where a court holds the opinion that it has no jurisdiction - the very basis for continuation of the proceedings before it - it must forthwith cease to deal with that matter. In our view, the issue of statutory bar when raised, is as much about the jurisdiction of the court as it is a statutory defence for a party. It is a legal point touching on both the court’s jurisdiction and a provision of a statute. It can thus be dealt with in accordance with Order 33 Rule 3 of the Rules of the Supreme Court (White Book, 1999 edition) which states that: “The Court may order any question or issue in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.” J29 P. 674 It may also be disposed of as a point of law as stipulated under Order 14A of the rules of the Supreme Court (White Book, 1999 edition). Mr. Siachitema has argued that to treat the right to raise the statute bar of the present action as waived would be tantamount to allow an estoppel against a statute. And, as there can be no estoppel against a statute, the argument by the learned counsel for the appellant on this ground is misguided. We agree with this submission and reiterate what we stated in Ndhlovu v. Al Shams Building Materials Company Limited and Another13 that: “there can be no estoppel against a statute. A litigant can plead the benefit of a statute at any stage.” We find no merit in ground two. It is dismissed accordingly. Under ground three, we were requested to determine when the cause of action in this case accrued to the appellant: was it when the certificate of title was issued in 1991 or when the appellant received the letter from the Chief Registrar of Lands in 2006 rejecting the appellant’s request to effect alteration to the certificate of title? J30 P. 675 We understand the thrust of the appellant’s argument on this point to be that until the attempt to have the certificate ‘corrected’ by the Chief Registrar of Lands failed, the cause of action did not accrue to the appellant. In our understanding, time begins to run when there is a person who can sue and another who can be sued; when all facts have happened which are material to be proved to entitle the plaintiff succeed. In Read v. Brown21, a cause of action was defined as “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.” We are of the view that in the present case, the appellant suffered detriment the moment the certificate of title was issued. Time began to run then. The appellant did not have to wait for the Chief Registrar of Lands to reject a request to rectify the certificate of title - and the Chief Registrar of Lands could indeed have taken twelve years or longer to respond, or would never have responded at all. In our considered view, it would not have made J31 P. 676 a difference in the least sense to the fact that the appellant became entitled to seek redress from the courts of law, if he so desired, from the very day the certificate of title, which he claims was fraught with an irregularity, was issued. In our estimation, the cause of action in the present case, accrued in 1991, when the certificate of title was issued, and not on the 19th of September, 2006 when the Chief Registrar of Lands declined to change the endorsement on the certificate of title, as claimed by the appellant. Ground three is without merit. In ground four, the learned counsel has submitted, with indomitable faith, on the desirability of matters being determined on their merits rather than on technicalities. He takes the view that the determination of a matter through a preliminary point, as happened in this case, does not do justice to the parties as the merits of the case are not assessed. Mr. Chibangula makes the pertinent point that in this particular matter, the lower court should have allowed the matter to proceed to full trial since the issue whether the action was statute barred or not, was itself contentious. Both Mr. Siachitema and Mrs. Kawimbe countered this argument by maintaining that the lower court made a J32 P. 677 determination on a point of law, which it was clearly entitled to do under Order 14 and Order 33 rule 7 of the Rules of the Supreme Court (White Book, 1999 edition). The learned counsel for the appellant quoted pertinent case authorities in which we have consistently stated that matters, should as much as possible, be determined on their merits rather than be disposed of on technical points. This, in our opinion, is what the ends of justice demand. Yet, justice also requires that persons facing possible claims should not be kept in a state of perpetual misapprehension of suits against them for possible transgressions they may have long committed and forgotten about. The law on limitation of actions attempts to strike a balance between these two extremes. In Howard and Others v. Fawcetts and Others22, Lord Nicolls of Birkenhead had the following to say: “it is important, in my opinion, to keep in mind that limitation defences are creatures of statute. The expression ‘statute-barred’ makes the point. And, in prescribing the condition for the barring of an action on account of the lapse of time before its commencement, Parliament has had to strike a balance between the claimant with a good cause of action for damage to which, let it be assumed, there is no defence on the merits to be barred from prosecuting the cause of action on account simply of the lapse of J33 P. 678 time since the occurrence of the injury for which redress is sought. But it is also a hardship to a defendant to have a cause of action hanging over him, like the sword of Damocles, for an indefinite period. Lapse of time may lead to the loss of vital evidence; it is likely to lead to a blurring of the memories of witnesses and to the litigation becoming even more of a lottery than would anyway be the case;...” In our respectful view, the above statement gives a rational and coherent explanation as to the importance of a statute of limitation point raised in proceeding. It also accurately represents the position that we are inclined to take in considering whether a statute bar argument, taken in as a preliminary point, determines the dispute. We have to agree that the submission made on this point by Mr. Siachitema and Mrs. Kawimbe, is the correct one. As a point of law which questions, in effect, the jurisdiction of a court to entertain a claim, a statute bar issue can be determined as a preliminary point and could dispose of the whole matter before a court, as it in fact did in this matter. We are of the confirmed view that ground four and five are bereft of merit and they are dismissed accordingly. J34 P. 679 Before we conclude, we wish to comment on the issue raised by Mrs. Kawimbe regarding the arguments on the statute of limitation not having been raised in the court below. We understand Mrs. Kawimbe’s argument to be that when the preliminary point was raised in the lower court, the appellant objected to it on very limited grounds which did not include the issues now raised before us. Having addressed the gamut of the appellant’s arguments on appeal, we find it unnecessary to undertake the task of drawing a precise boundary between what may be raised in an appeal and what may not be raised. To do so would be to give vent to considerations, which in the present circumstances, have become irrelevant. The net result is that the whole appeal is dismissed. Costs shall follow the event to be taxed in default of agreement. M. $. MWANAMWAMBWA ACTING DEPUTY CHIEF JUSTICE E. N. C. MUYOVWE SUPREME COURT JUDGE M. MALILA, SC SUPREME COURT JUDG