Eliko Mulenga v Izumaka Limited and Ors (APPEAL NO. 54 OF 2021) [2023] ZMCA 423 (22 February 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 54 OF 2021 HOLDEN AT LUSAKA [Civil Jurisdiction) BETWEEN: ELIKO MULENGA AND IZUMAKA LIMITED 1 S T RESPONDENT CHAZYA CHILESHE FRANK 2 nd RESPONDENT CORAM: Chashi, Siavwapa and Banda-Bobo , JJA ON: 18 t h January and 22nd February 2023 For the Appellant: For the 1st and 2 11d Respondents: D. Mazumba, Messrs Douglas & Partners E. C Banda, SC and T Chibeleka, Messrs ECB Legal Practitioners JUDGMENT CHASHI JA, delivered the Judgment of t h e Court. Cases referred to: 1. Norman v Mathews (1916) 85 LJKB, 857 2. William David Carlisle Wise v EF Harvey (1985) ZR, 179 -J 2- 3. Mpande Nchimunya v Stephen Hibwani Michela - SCZ Judgment No 12 of 1997 4. Yousuf v Mahtani Group of Companies and Others {2011) ZMHC, 24 5. Zambia Seed Company Limited v West Co-op Haulage Limited and Western Province Cooperative Union Limited - SCZ Appeal No. 112/2013 6. Col. Paul Chikuswe Chilanga (RTD) v Lt General 1. S. A the Army Chisuzi Commander at the material time) - CAZ Appeal No. 53 of in his capacity as (sued (RTD) Legislation referred to: 1. The Supreme Court Practice, (White Book) 1999 2. The High Court Rules, Chapter 27 of the Laws of Zambia Other authorities referred to: 1. Odgers' Principles of Pleading & Practice, 22 Edition, DB Casson and IH Denn.is, Stevens & Sons 1981 1.0 INTRODUCTION 1. 1 Th is is an appeal against the Ruling of Honourable Mrs Justice M. Mapani-Kawimbe High Court Judge, which was delivered on 19 th November 2020. -J 3- 1.2 In the said Ruling, the learned Judge struck out the Appellant's (who was the plaintiff in the court below)i writ of summon s and statement of claim for failure to disdose a cause of action. 2 .0 BACKGROUND 2.1 On 16th November 2018, the Appellant commenced an action against the Respondents by way of writ of summons and statement of claim, claiming the following reliefs: (i) An Ord.er and declaration tha t the m o to r vehicle Reg No. ALL 4 3 00 a nd Traiile r No EV6052T be released to t he p,laintiffs custody (ii) A Court Order to com pe l t h e 1st and 2 nd defendants to submit their repa ir quotatio n s to the plaintifrs Insurance Com pan y ,, Nico Insurance (ii) Damages for loss of busine ss by· the defendants for refus ing to releas e the m o t o r vehicle and trailer -J 4- 2.2 In the attendant statement of claim, the Appellant averred that the truck whilst being driven by his driver lost control due to brake failure and hit into the Respondents wire fence and building, thereby causing damage to the same. 2.3 That from the time the accident occurred on 7 th September 2017, the Respondents have refused to submit a third party claim to Nico Insurance. That in the meantime they have continued to detain the Truck and Trailer which has caused loss of business to the plaintiff. 2.4 On 23 rd November 2018, the Appellant amended the writ of summons and statement of claim without leave of the court, which was in respect to the Respondents' names as parties. 2.5 On 9 th January 2019, the Respondents filed into court a summons pursuant to Order 18 / 19 of The Rules of the Supreme Court 1 (RSC), accompanied by an affidavit and skeleton arguments, to strike out the writ and statement of claim for non-disclosure of a cause of action. -J 5- 2 .. 6 According to the affidavit in support deposed to by Counsel having conduct of the matter, Elijah. C. Banda SC, the Appellant had failed to disclose a reasonable cause of action against both Respondents . That the facts presented do not give rise to a legal basis upon which the Appellants claim can stand as the plaintiff has failed to establish the violation of any right or liability on the Respondents' part. 2.7 In the skeleton arguments, it was argued that looking at the allegations that have been presented, it is evident that the alleged cause of action is certain to fail. That the Appellant has admitted liability and has failed to establish any liability on the Respondents' part. It was argued that the AppeUant merely stated that the Respondents detained his Truck and Trailer, but it is not clear whether he conside rs the detention unlawful and on what basis the Truck was detained. It was further averred that the failure to submit a claim to the insurance company is not an offence. -J 6- 2.8 In opposing the application, the Appellant deposed that the Respondent through affidavits deposed to by their Counsel on 9 th and 22 nd January 2019, alleged that they are ready to file a defence and counter claim, copy of which they exhibited. That the defence entails that the Respondent's failure to release the truck has resulted into loss of business. 3.0 DECISION OF THE COURT BELOW 3.1 After considering the application, affidavit evidence and the arguments, the learned Judge formulated the issue for determination as "whether the plaintiffs suit disclosed a reasonable cause of action against the defendants?" 3.2 The learned Judge then went on to consider the provisions of Order 18 / 19 RSC and opined that, what she needed to consider was "whether there is any liability against the defendants upon which they must defend themselves. 3.3 The learned Judge then went on to make the following observation at page RS as follows: -J 7- "As far as the ,court obse:rv,es, the substance of the claim a.gainst the defendants in both statements of claim :is that they have kept the plaintiffs truck a.nd .refnsed ·t,o lay a ,claim with his insurer, Nico Insurance. The plaintiff also alleges that his truck whic h is in th,e defe .ndant's possession is causing h i m business losse:s. What is not disclosed and rightfully pointed out by Mr Banda SC, is whether the defendant's poss.ession of the truck is wrongful and if there is any sanction for failing to " ,pursue an 1nsuranc·e c aim. . 1 . . 3.3 On the basis of the aforestated, the learned Judge was of the view that th e Appella nt had failed to disclose a cause of action against the defendant s. The learn ed Judge then went on to s t a te as follows: "Granted that th,e plaintiff has already amended his writ of summons and statement of claim, it would in my view be futile to grant him an opportunity to further amend his pleadings. -J 8- Having stated so, the plaintiff's w:rit of summons and statement of claim are h,ereby struck out.'" 4.0 THE APPEAL 4.1 Dissatisfied with the Ruling, the Appellant has appealed to this Court advancing three grounds formulated as follows: (i) The learned Honourable Judge in the court below erred in law and fact when sbe beld that the Appellant had fail,ed to disclose a cause of action against the Respondents when the writ of summons and statem,ent of claim disclosed a cause of action against the Respondents. (ii) The learned Honourable Judge in tbe court below erred in law and fact ·when she held that, granted that the Appellant had already amended his writ of summons and statem,ent of claim it would be futile to :grant the Appellant an opportunity to further amend the pleadings when there was no evid,ence of -J 9- prejudice that would have been occasioned to the Respondents if further leave to amend the pleadings was grante d to the Appellant. (iii) The learned Honourable Judge in the court below erred in law and fact when she struck out the Appellant's writ of summons and s tatement of claim without being satisfied that no amendment or an order for better and further particulars will cure the defect in the writ of summons and statement of claim 5 .0 ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 In arguing the first ground, it was the Appellant's submission that, the amended statement of claim reveals that, the Appellant had disclosed a cause of action against the Respondents. Our attention was drawn to paragraph (7) of the statement of claim which reads as follows: "The plaintiff will aver at trial that the detention o f the motor vehicle registration No. ALL 4300 and trailer No Ev 6052T by the 1st and 2 nd -J 10- Defendants herein has caused much los s of business to the plaintiff." 5 .2 Counsel for the Appellant drew our attention to the definition of detention to the learned author s of Black,s Law Dictionary at page 480 where th ey define it as follows: "Custody of property; esp .. an employ e e 's c ustody of the employers property witho ut being, considered as having legal possession of it. ,., 5.3 Our attention was also drawn to the reliefs being sought under (i) and (iii) of the statement of d aim as well as the provisions under Order 18 / 19 / 10 R SC. The Appellant aJ so referred us to the learned authors of Odgers'' Princip:les of Pleadings & Practice 1 at page 148 where they stated as follows: "So long as the statement of claim or the particulars served under it disclose some cause of action, or raise some question fit to be decided by trial, the m ere fact that a case is weak and not likely to succeed is no ground for striking it out. It is customary at the -J 11- common law Bar b efore advising an application to be made under this rule to communicate with your opponent so that he may have opportunity of amending his pleadings." 5.4 The Appellant contended that, he disclosed a cause of action against the Respondents, fit for determination at trial. That the issue of whether the Respondents had authority to detain the truck and trailer and whether the detention caused los s of business to the Appellant are fundamental issues for determination by the court at trial and not at interlocutory stage. The Appellant cit ed the case of Norman v Mathews 1 where on dealing with actions that do not disclose a cause of action, the court had this to say: "In Order to bring a case withiin the description, it is not sufficient merely to say that t he plaintiff had no cause of action. It must appear that his alleged cause of action is one w hich on the £ac e of it clearly is one which no reasonable person could properly treat as bona fide and contend that -J 12- he had a grievance which he was e n titl,e,d to bring before the court. " 5.5 As regards the second ground, it was submitted, premised on Order 18 ( 1) of The High Court . Rules2 1(HCR)., which provides for amendment of pleadings at any stage, that it does not limit the number of times that a court can grant leave to amend pleadings. We were further referred to the provisions under Order 18 / 19 RSC and it was submitted that, considering the stage at which the matter had reached, there was no evidence of prejudice that would have been occasioned had the court ordered amendment of pleadings. 5.6 According to the Appellant, the justice of the matter demanded that the matter be decided on its merit, as such leave to amend the pleadings ought to have been granted to the Appellant considering the fact that no prejudice would have been occasioned on the Respondents had the court granted leave. 5 . 7 In respect to the third ground, it was submitted that, the court below struck out the pleadings on the ground that . J 13- the Appellant had not shown that the possession of the truck and trailer by the Respondent was wrongful. According to the Appellant, the Order for amendment or further and better particulars would have cured the alleged defect as opposed to striking out the pleadings. 6.0 ARGUMENTS IN OPPOSING THE APPEAL 6.1 In response to the first ground, Counsel for the Respondent relied on the Respondents heads of argument. The case of William David Carlisle Wise v EF Harvey2 was cited, where the Supreme Court stated as follows, in relation to when a cause of action is deemed to have been disclosed " .. . a factual situation is alleged which contains facts upon which a party can attach liability to the other or upon which he can establish a right or entitlement to a Judgment in his favour against the other. " 6.2 According to the Respondents, a perusal of the statement of claim reveals that there are no facts upon which the Appellant can attach liability or establish a right or -J 14- entitlement to a Judgment 1n his favour against the Respondents. That the Appellants averments do not amount to a legally recognizable claim 6.3 It was submitted that, the statement of daim instead reveals that the Appellant admitted to having caused damage to the Respondents' premises and failed to establish any liability on th e Respondents' part. That the Appellant merely s ta ted that t he Respondents detained his truck and trailer. That it is not clear whether such detention was considered to be unlawful and on what basis the Respondent detained the truck and trailer. The case of Mpande Nchimunya v Stephen Hibwani Michelo3 was cited where it was held that: "If the statement of claim discloses no cause of action, then the plaintiff :is not entitled to Judgment. Unlike in cases of irr1egularity on the writ or in service of the writ, w h ich c a n be deemed to have been waived if no imm,ediate .steps or no steps are taken to set aside th•e writ o :r its service.; there can be no waiver in case s ,of n on-disclosure -J 15- of a cause of action because there iis simply nothing to try or prove. It is. immaterial therefore that the defendant nev-er app1ied to strik.e out. t he statement of claim or that. he· rendered a defence .. . " 6.4 We were also r eferred to the case of Yousuf v Mahtan.i Group of Co.mpanies and Others4 where the court held t hat: "The summons power to strike out pleadings for failure to disclose a cause of action was one w hich should be exercised only in plain and obvious cases, where the alleged cause of action , on. consideration only of the, aJlegations in. the pleadings, was certain to fan."' 6.5 It was s u bmitted that, the primary function of pleadings is to clearly define the issues t h at fall to be determined bet ween or amongst lit igating parties. That the mann er in which pleadings ought to be drafted is extensively outlined in Order 18 / 19 RSC. That failure to follow the strict rules of pleadings may prove to be fatal as it is the case herein. -J 16- 6.6 In response to the second and third grounds, the Respondents drew our attention to the case of Zambia Seed Company Limited v West Co-op Haulag,e Limited and Western Province Cooperative U:nion Limited5 where it was held that: "Although the pendulum w,e:ighs or tilts in favour of granting amendments, courts of law are entitled to refuse amendments in deservin g cases." 6. 7 The Respondents also referred us to Order 18 / 19 / 1 RSC and submitted that, this Court as well as the court below is clothed with jurisdiction to impose sanctions for breaches of rules of pleadings. That it is therefore not a matter of right that a party to an action will be granted leave to amend its plead ings. 6.8 It was submitted that the lower court was on firm ground when it held that the Appellant had already amended the writ of summons and statement of claim and that it would be futile to have granted the Appellant :an opportunity to amend as this was a plain and obvious case in which no -J 17- reasonable amendment would have cured the defect. That as such an Order for further particulars was and is immaterial at this point as the statement of claim is not only defective in that, it does not contain particulars to which the Respondents were entitled to, but it contains facts which did not give rise to liability on the part of the Respondents. 7 .0 OUR ANALYSIS AND DECISION 71. The three grounds of appeal in our view are entwined and we will there[ ore address them together. In the case of Col Paul Chikuswe Ch ilanga (RTD) v Lt General I. S. A Chisuzi (RTD)6 (sued in his capacity as the Army Commander at the material time), one of the issues we had to consider was "whether the statement of claim disclosed a cause of action sufficient to attach liability t o or against the defendant." 7 .2 In the said case we held inter alia as follows: (i) The purpose of pleadings is to give a sufficient outline of one's case in order for the opponent to know what case he has to -J 18- meet and not to make vague allegations and avoid embarking on a fishing expedition. (ii) A statement of claim raises a cause of action, if it contains facts upon which a p,arty can attach liability to the other and if it establishes some chance of success for the party. 7 .3 According to the learned authors of Odgers Principles of Pleadings & Practice 1 at page 148, a reasonable cause of action, means a cause of action with some chances of success, when only the allegations in the pleadings are considered. If when th e allegations are examined, it is found that the alleged cause of action is certain to fail, the statement of claim should be struck out. 7.4 The learned authors go on to state that, hence though you may think that your opponent's pleadings disclose no reasonable cau se of action, it by n o means follows that you should at once apply t o have it struck out or amended. So long as the statement of claim or the particulars served -J 19- under it, disclose some cause of action or raise some cause of action, or raise some question fit to be decided by trial, the mere fact that the case is weak and not likely to succeed is no ground for striking out. 7.5 An examination of the statement of claim, in particular paragraph (7) and the reliefs being sought, the allegations contained therein clearly shows that there is disclosure of some cause of action. In our view, the Appellant in the statement of claim has given fair notice of his case, which has to be met by the Respondents and the issues on which the court has to adjudicate in order to determine the dispute between the parties. 7 .6 According to the learned Judge in the court below, what was not disclosed was whether the Truck and Trailer were in the Respondents possession wrongfully, though that can be implied from the word "detain." As earlier alluded to, the pleadings contain a statement and allegations on which the Appellant seeks determination or direction of the court and the reliefs being sought, with sufficient -J 20- particulars. The fact that the word "wrongful" is missing, in our view, did not call for the drastic measure of striking out the pleadings. Pleadings should only be struck out in plain and obvious cases and where no reasonable amendment would cure the defect. Taking into consideration the defect highlighted by the court below, we are of the view that this was a proper case for ordering amendment of the pleadings in order to cure the defect and not striking out the originating process. 7. 7 We note that the first amendment by the Appellant was done without leave of the court as permitted by procedure and only related to alteration of the parties in respect to the Respondents and not particulars of the claim. Having made the aforestated amendment, amendment of pleadings thereafter is allowed with leave of the court in accordance with Order 18 HCR at any stage of the proceedings, as long as it does not prejudice the other party's case. There is also no restriction on the number of amendments one can apply for. It was therefore, in our -J 21- view, a misdirection on the part of the learned Judge to state that the Appellant had already amended the pleadings and it would therefore be futile to grant him an opportunity to further amend the pleadings. 7.8 In the view that we have taken and considering the early stage of the proceedings at which this matter is, this is a proper case in which we can set aside the Order of the court below striking out the pleadings. We according set aside the same and remit the matter back to the High Court with an Order that the Appellant files into court an amended writ of summons :1 ~tatement of claim, within the next fourteen ( 14) the date hereof. below. COURT OF APPEAL JUDGE M . J. SIAVWAPA A. M ., B,ANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE