Esnart Ng'andu (Suing as Administ rat rix of the estate of Yvonne Ng'andu) v The Attorney General (HP/C 288 of 2003) [2020] ZMHC 22 (12 October 2020)

0VUBLtC OFZ.4M8, COURT OF Z4Ma JUDICARY ,.,wt i J. OCT 2020 £ 03/HPC/0288 COMMERCIAL REGI$TKY P.4 IN THE HIGH COURT FO AT THE COMMERCIAL R HOLDEN AT LUSAKA (Civil Jurisdiction) C (cid:9) BETWEEN: ESNART NG'ANDIJ (Suing as Administ rat rix of the estate of Yvonne Ng'andu) PLAINTIFF AND THE ATTORNEY GENERAL (cid:9) DEFENDANT Before: The Hon. Lady Justice Dr. W. S. Mwenda in Chambers at Lusaka on the 12th day of October, 2020. For the Plaintiff Ms. M. Banda of Messrs. KBF & Partners For the Defendant: Lt. S. A. Tembo of Attorney General's chambers RULING Cases referred to: 1) William David Carlisle Wise v. E. F. Harvey Limited (1985) Z. R. 179 (S. C.). 2) The Attorney General v. Roy Clarke (2008) 1 Z. R. 38 (S. C.). 3) Nkongolo Farms Limited v. Zambia National Commercial Bank Limited and Others (2005) Z. R. 78 (S. C.). 4) Katleman and Others v. Hansel Properties Limited and Others (198 7) A C 189, 220. 5) Joseph Gereta Chikuta v. Chipata Rural Council (1983) Z. R. 26 (S. C.). 6) Zambia Consolidated Copper Mines Limited v. Chileshe, SCZ Judgment No. 21 of 2002. 7) Anderson Mazoka and Others v. Levy Mwanawasa and Others (2005)Z. R. 138. (S. C.). Legislation referred to: 1) Order 18, rule 1 of the High Court Rules, Chapter 27 of the Laws of Zambia ("the High Court Rules"). (cid:9) (cid:9) R2 2) Order 20, rule 5 (1) of the Rules of the Supreme Court of England and Wales, 1999 Edition ("the White Book"). 3) Practice Note 20/8/10 of Order 20 of the White Book. Other Authorities cited: 1) Halsbury's Laws of England, 4th Edition, Volume 36. 2) Simon Goulding (ed) Odgers on Civil Court Actions: Practice and Precedents, 24th Edition (Sweet & Maxwell Limited, 1996), page 221, paragraph 11.08. 3) Patrick Matibini, Zambian Civil Procedure - Commentary and Cases, Volume 1 (LexisNexis, 2017). This is the Defendant's application for leave to amend Defence. The application is by way of Summons with supporting Affidavit and Skeleton Arguments, all filed on 14th September, 2020. The application is made pursuant to Order 18, rule 1 of the High Court Rules, Chapter 27 of the Laws of Zambia as read with Order 20 of the Rules of the Supreme Court of England and Wales, 1999 Edition ("the White Book"). The Affidavit in Support of Summons for Leave to Amend Defence (hereinafter referred to as "the Affidavit in Support"), was sworn by one Lieutenant Suwilanji Alice Tembo, an advocate of the High Court of Judicature for Zambia, practicing as a State Advocate in the Attorney General's chambers and seized with the conduct of this matter, by which authority she deposed to the Affidavit from facts within her personal knowledge and belief. It is the deponent's evidence that the Plaintiff commenced proceedings by way of Writ of Summons and Statement of Claim on 28th August, 2003. A Memorandum of Appearance and Defence were filed into Court by the Defendant on 8th October, 2003. However, the Defence omitted R3 particulars of fraud on the part of the Plaintiff herein. It is further averred that the Defendant has prepared a copy of the proposed Amended Defence and the same is produced and marked "LSAT1". It is averred that no prejudice will be occasioned to the Plaintiff if leave to amend the Defence is granted but conversely, the ends of justice will be met as all the material facts will be before Court. That, in view of the aforesaid, the Defendant seeks leave to amend the pleading in the manner described. The application is opposed and to this end, the Plaintiff filed an Affidavit in Opposition to Defendant's Affidavit in Support of Summons for Leave to Amend Defence (hereinafter referred to as "the Affidavit in Opposition"). The Affidavit in Opposition was deposed to by Esnart Ng'andu, the Plaintiff herein. It is her testimony that she is the duly appointed Administratrix of the estate of the Yvonne Ng'andu, thus the Plaintiff in this cause and by reason whereof, competent to depose to the Affidavit from facts within her personal knowledge and belief. The Plaintiff responded to the averments in the Affidavit in Support by stating that she has been advised by her advocates and verily believes the same to be true, that the Defendant's application contradicts the spirit of the current provisions of the law regulating amendments as an amendment adducing claims of fraud cannot be introduced for the first time at this late stage of the matter after trial has already commenced. She contends that if such amendment is allowed it will prejudice her owing to the fact that the original Plaintiff in this matter is now deceased and cannot come and respond to the claims R4 alleging fraud and she, as the Administratrix of the estate and current Plaintiff has no personal knowledge of such claims and therefore, cannot testify or respond to the said allegations properly. The Plaintiff deposed further, that she has been advised by her advocates and verily believes the same to be true, that the need for such amendment alleging fraud was evident in 2003 but the Defendant has taken 17 long years to bring it before this Court, rendering it late in the day. Further, that this Court is clothed with authority to dismiss the Defendant's application because of the clear prejudice that she will suffer in presenting her case if the amendments are allowed to be made. It was averred additionally, that the Defendant could have made these amendments during the original Plaintiff's lifetime so as to give her an opportunity to personally counter the allegations but they did not do so and thus, the Plaintiff, as the deceased's personal representative will be disadvantaged in presenting this case if the amendments are allowed. Therefore, an order dismissing the application will be in the interest of justice and will not in any way prejudice the Defendant as he will still have his day in Court and the matter will be determined based on the current pleadings by which both parties are bound. It was averred that in the premises, this is a fit and proper case for this Court to withhold leave to amend and to dismiss the Defendant's application with costs to the Plaintiff. The application came up for hearing on 28th September, 2020. Lieutenant Tembo, learned Counsel for the Defendant, submitted R5 that the Defendant is seeking leave to amend his Defence and in doing so, will rely on the Defendant's Affidavit in Support and Skeleton Arguments in Support. She submitted that it will be in the interest of justice that leave is granted as the documents filed by the Plaintiff contain documents that were fraudulently acquired. Further, that for a fair suit to be determined, all claims, allegations and defences should be before this Court and this Court has the power to grant leave to amend pleadings at any stage of the proceedings in line with Order 20 of the Rules of the Supreme Court, 1999 Edition. Counsel submitted that they are aware that this matter was commenced sometime back and there is a personal representative acting on behalf of the Plaintiff who is now deceased. However, Counsel submitted, a personal representative takes the obligations of the deceased. Thus, by amending the Defence, the Defendant will not delay or prejudice the Plaintiff in any way but justice will be served. Counsel submitted that she is aware that justice delayed is justice denied but this Court cannot allow that maxim to be applied at the expense of justice; that, justice in this case is allowing the Defendant to bring in a fundamental defence to the Defendant's case. In conclusion, Counsel submitted that it is the Defendant's prayer that leave be granted to allow the Defendant amend his Defence so as to bring before this Court all the necessary claims and defences for proper determination. Further, that by granting this application, it will reduce on multiplicity of actions. Therefore, R6 it is the Defendant's prayer that leave be granted and costs be in the cause. In response, Ms. Banda, learned Counsel for the Plaintiff, submitted that the Plaintiff will rely on the Affidavit in Support filed on 24th September, 2020 as well as Skeleton Arguments of even date. Counsel submitted that she would amplify one position of their arguments to the effect that Order 20, rule 8, sub-rule 10 of the White Book (the correct reference being Practice Note 20/8/10 of Order 20) precludes an amendment if the amendment includes allegations of fraud. She contended that the intended Amended Defence exhibited by the Defendant as exhibit "LSAT1" in the Affidavit in Support brings out issues of fraud, which is not allowed per Order 20, rule 8 sub-rule 10 (Practice Note 20/8/10 of Order 20) of the White Book. Counsel submitted finally, that if this Court grants leave, the Plaintiff will seek costs to be paid before the next hearing date, otherwise, the application should not be granted. In reply, Counsel for the Defendant emphasised the powers that this Court has to amend pleadings at any stage in the interest of justice and that this is a proper case in which to grant leave to amend the pleading with costs in the cause. It was submitted in the Skeleton Arguments and List of Authorities filed by the Defendant on 141h September, 2020, that the documents that the Plaintiff seeks to rely on in her Bundle of Documents were fraudulently acquired and if this Court does not grant the application to amend Defence, the Plaintiff will rely on the said fraudulently acquired documents and this will be prejudicial R7 on the part of the Defendant as the Defendant did not include fraud in his initial Defence. It was submitted that the Defendant wants to amend his Defence by relying on the provisions of Order 18, rule 1 of the High Court Rules, Chapter 27 of the Laws of Zambia, as read with Order 20 of the White Book. Order 18, rule 1 of the High Court Rules provides as follows: "The Court or a Judge may, at any stage of the proceedings, order any proceedings to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass or delay the fair trial of the suit, and for the purpose of determining, in the existing suit, the real question or questions in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just." It was submitted that the Defendant denies that the Plaintiff supplied the Zambia Army goods as alleged in paragraph 3 of the Plaintiff's Statement of Claim or at all and also denies that the Plaintiff is entitled to any of the reliefs claimed. To support the Defendant's application, the case of William David Carlisle Wise v. E. F. Harvey Limited], was cited where the Supreme Court stated as follows: "Pleadings serve the useful purpose of defining issues of fact and of law to be decided. They give each party distinct notice of the case intended to be set by the other and they provide a brief summary of each party's case from which the nature of the claim or defence may be apprehended." Further, the Defendant cited the case of The Attorney General v. Roy Clarke2, where it was held: R8 "A party cannot rely on unpleaded matters except where evidence on the unpleaded matters has been adduced in evidence without objection from the opposing party." It was submitted that evidence in this matter has been adduced by the Defendant and hence, the application to have the Defence amended so that fraud is pleaded in the Defence. The Defendant argued that it was surprising that the Plaintiff's advocates in their Bundles would contend that the goods were officially received by the Defendant by producing fraudulently acquired documents that were not in any way issued by the Defendant. It was further submitted on behalf of the Defendant, that where fraud is claimed it must be precisely alleged and in that regard, they cited the case of Nkongolo Farms Limited v. Zambia National Commercial Bank Limited and Others3, where the Supreme Court stated as follows: "Where a party relies on any misrepresentation or fraud. . . he must supply the necessary particulars of the allegation in the pleadings. Fraud must be precisely alleged and strictly proved. There is no presumption offraud." The Defendant also referred to Halsbury's Laws of England, 41h Edition, Volume 36, where it provides: "Where a party relies on misrepresentation, fraud, breach of trust, wilful default or undue influence by another party, he must supply the necessary particulars of the allegation in his pleading." It was submitted that from the foregoing, it is the Defendant's submission that the documents the Plaintiff seeks to rely on were fraudulently acquired and the following are the particulars of the R9 allegations as stated in the proposed Amended Defence, namely; that the stores or supplies receipt voucher that the Plaintiff seeks to rely on was fraudulently attained and the Local Purchase Order (LPO) has the following irregularities, namely: a. The date on the LPO falls on Sunday, a day that no business takes place at Zambia Army; b. The signature on the LPO was forged; c. The ration number indicated on the LPO is false. It was the Defendant's prayer that the Court grants his application to amend the Defence to include fraud in his pleading because if leave to amend is not granted, it may be prejudicial on the part of the Defendant as the documents contained in the Plaintiff's Bundle of Documents were not issued by the Defendant and fraud was not precisely alleged in the initial Defence. That, in the interest of justice, this Court should grant the application to amend the Defence. It was submitted that from the foregoing, this is a proper case in which the Defendant's application ought to be granted. It was submitted in the Plaintiff's Skeleton Arguments in Opposition dated 241h September, 2020, that Order 20, rule 5 (1) of the White Book provides as follows: "...the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct." It was submitted in addition, that Practice Note 20/8/10 qualifies the above by stating that: RiO "There will be difficulty, however, where there is ground for believing that the application is not made in good faith. Thus, if either party seeks to amend his pleading, by introducing for the first time allegations of fraud, or misrepresentation or other such serious allegation, the Court will ask why this new case was not presented originally; and may require to be satisfied as to the truth and substantiality of the proposed amendment." (Emphasis by the Plaintiff) It was submitted further, that Practice Note 20/8/11, is instructive and states as follows: "The Court will not readily allow at the trial an amendment, the necessity for which was abundantly apparent months ago, and then not asked for, or which seeks to make substantial changes as to the amount of damages claimed; nor will an amendment be allowed at the hearing which for the first time introduces a charge of fraud" (Emphasis by the Plaintiff) To further buttress the Plaintiff's submission, this Court's attention was drawn to Odgers on Civil Court Actions: Practice and Precedents, 24th Edition, page 221 at paragraph 11.08, where it states as follows: "... Leave can be given to amend after commencement of the hearing but it will not be given if the necessity of the amendment was clear long before the trial and was not asked for. Either party is ordinarily given leave to make such amendment as is reasonably necessary for the due presentation of his case on payment of the costs of and occasioned by the amendment, provided that there has been no undue delay on his part... Further, the House of Lords has expressed a less liberal view that amendments will not be allowed to permit a new defence to be raised for the first time..." It was submitted that it is on record before this Court that this matter was commenced 17 years ago and consequential to this, the Plaintiff is now deceased and is being represented by the R11 administratrix of her estate. Further, that it is also apparent that the thrust of the Defendant's amendment is anchored on the alleged fraud and it is the Plaintiff's contention that 17 long years of waiting to amend a Defence to claim fraud is an undue delay. Additionally, that the application is prejudicial to the Plaintiff as it has come late in the day and the necessity to amend should have been apparent to the Defendant long before trial but it was not asked for. Further to the above, it was submitted on behalf of the Plaintiff that it may be perceived from the nonchalant attitude of the Defendant in bringing this application, that the application has not been made in the spirit of expediency and good faith; expediency being the bedrock from which this Court enjoys its fast track order of business. Further, that the nature of the amendment sought is that of fraud which is being introduced 17 years later, for the very first time, which introduction is particularly disallowed under Practice Note 20/8/11. The Plaintiff reminded the Court of the maxim "delay defeats equity" and submitted that the Defendant's delay in seeking the amendment of its Defence is inordinate and inexcusable and should not be permitted. To buttress the submissions and demonstrate the prejudice the Defendant is causing the Plaintiff, the Plaintiff relied on the dictum of Lord Griffiths in Katleman and Others v. Hansel Properties Limited and Others4, where he observed that: "Whatever may have been the rule of conduct a thousand years ago, today is not the practice invariably to allow a Defence which is wholly different from that pleaded to be raised by amendment at the R12 end of the trial even on terms that an adjournment is granted and that the Defendant pays all the costs thrown away. There is a clear difference between allowing amendments to clarify issues in dispute and those that permit a distinct defence to be raised for the first time." (Emphasis by the Plaintiff) Further, the Plaintiff relied on the Supreme Court's decision in Joseph Gereta Chikuta v. Chipata Rural Council5, where the Court held as follows: '... An amendment under Order 18 is justified only where it results in the mere recasting of the case in order to agree with the evidence, and without the introduction of any new cause of action or defence. Order 18 of the High Court Rules is not a directive to the courts spontaneously to raise further issues where the issues have already been clearly pleaded and joined by the parties, nor is it an open invitation to the parties to withhold issues and only attempt to raise them after a trial run on the evidence." (Emphasis by the Plaintiff) The Plaintiff further cited the learned author Patrick Matibini's Zambian Civil Procedure-Commentary and Cases, where at page 699 in paragraph 18.5, he said the following on the topic: "While the courts may allow an amendment at any stage of the proceedings, the court may be increasingly reluctant as the case proceeds, to allow amendments that are made late. Late amendments could undermine the just resolution of a dispute rather than advance it. They delay the final resolution, cause confusion or waste litigant and court resources." (Emphasis, the Plaintiff's) It was further submitted that in the case of Zambia Consolidated Copper Mines Limited v. Chileshe6, the Supreme Court held that: R13 "Amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments." It is the Plaintiff's contention that it is clear from the Defence on record that the Defendant did not in any way allege fraud from the outset. Therefore, the effect of their proposed amendment will be to introduce an entirely new defence of fraud, which will be pleaded for the first time 17 years after commencement of these proceedings. It was argued that such an amendment will create a ripple prejudicial effect owing to the fact that the Plaintiff has already testified and if such amendment is allowed, she may have to alter her witness statement; make alterations to her Reply and may consequently have to change and re-file her Bundle of Documents, which have been on the file for several years. This in turn will result in additional costs to be borne by the Plaintiff with her lawyers; costs which the Defendant will not pay as it is common knowledge that the State rarely makes good on claims for legal costs; so even if this Court orders costs, the Plaintiff will still receive no benefit because the Defendant will not pay and the Plaintiff will suffer further detriment. It was submitted that from the foregoing arguments, it is clear that the Plaintiff will suffer great prejudice due to the fact that the original Plaintiff in the matter is now deceased and cannot come and respond to the claims alleging fraud and the current Plaintiff who is only the personal representative of the deceased has no personal knowledge of such claims and therefore, cannot testify or respond to the allegations of fraud. Lastly, that the Plaintiff seeks R14 guidance from the case of Anderson Mazoka and Others v. Levy Mwanawasa and Others7, where the Court held that parties ought to be bound by their pleadings and the court must treat the parties as being so bound. The Plaintiff prayed that this Court dismisses the Defendant's application for leave to amend his Defence for being prejudicial to the Plaintiff and for further delaying her the justice that the estate needs in this matter. The Plaintiff further, prayed that costs be awarded to her in any event. I have considered the Defendant's application for leave to amend his Defence to include allegations of fraud on the part of the Plaintiff. I have also considered the Affidavit in Support and Skeleton Arguments in Support as well as oral arguments by Counsel. I have equally considered the Plaintiff's Affidavit in Opposition, Skeleton Arguments in Opposition as well as oral arguments by Counsel on behalf of the Plaintiff. I am indebted to both Counsel for the authorities cited, which I have taken into consideration. After considering the aforesaid, the question for determination, in my view, is whether or not leave to amend the Defence should be granted to the Defendant in view of the prevailing circumstances. It is not in dispute that under the provisions of Order 18, rule 1 of the High Court Rules, Chapter 27 of the Laws of Zambia, this Court is vested with the power to order the amendment of any proceedings at any stage of the proceedings in order to eliminate all statements which may tend to prejudice, embarrass or delay the fair trial of the suit, and for purposes of determining in the existing R15 suit the real question or questions in controversy between the parties. Therefore, this Court has the power to grant leave to the Defendant to amend his Defence to include a plea of fraud which, as a requirement, must be strictly and precisely pleaded as ably guided by the Supreme Court in the case of Nkongolo Farms Limited v. Zambia National Commercial Bank Limited and Others. However, leave to amend a pleading is not given as of right where there is an allegation of fraud. As Practice Note 20/8/11 of Order 20 of the White Book, which I found persuasive states, the Court will not readily allow at the trial an amendment, the necessity for which was abundantly apparent months ago, and then not asked for; nor will an amendment be allowed at the hearing which for the first time introduces a charge of fraud. Odgers on Civil Court Actions: Practice and Precedents, 24th Edition has similar provisions on delay in applying for leave to amend and raising of a new defence at the hearing. It is common cause that this matter was commenced in August, 2003, which is 17 years ago. The Defendant has argued that the defence of fraud is a fundamental one; in my view, that fact should have prompted the Defendant to apply for leave to amend his Defence at the earliest possible time. I agree with the Plaintiff that the need for an amendment was apparent to the Defendant years ago and the Defendant could have made the amendments during the original Plaintiff's lifetime (the original Plaintiff having died in 2012, which is 9 years after commencement of these proceedings) but the Defendant did not apply for leave to amend his R16 Defence until 17 years later, after trial had begun and the Plaintiff had testified and the matter was adjourned for cross-examination of the Plaintiff by the Defendant. In view of the aforesaid, I am inclined to agree with the Plaintiff's submission that if leave is granted to the Defendant to amend his Defence to include an allegation of fraud, the Plaintiff will be prejudiced due to the fact that the original Plaintiff in this matter is now deceased and cannot come and respond to the claims alleging fraud and the current Plaintiff who is just the administratrix of the estate of the deceased, will be in a disadvantaged position to respond to the allegations of fraud which are coming up for the first time. I am bolstered by the Supreme Court's decision in Joseph Gereta Chikuta v. Chipata Rural Council, where the Court held as follows: "... An amendment under Order 18 is justified only where it results in the mere recasting of the case in order to agree with the evidence, and without the introduction of any new cause of action or defence. Order 18 of the High Court Rules is not a directive to the courts spontaneously to raise further issues where the issues have already been clearly pleaded and joined by the parties, nor is it an open invitation to the parties to withhold issues and only attempt to raise them after a trial run on the evidence." (Emphasis by the Court) I am further persuaded by the English case of Katleman and Others v. Hansel Properties Limited and Others (supra) where it was stated that there is a clear difference between allowing amendments to clarify issues in dispute and those that permit a distinct defence R17 to be raised for the first time. I am of the view that in the case before this Court, the amendment desired is not meant to clarify the issues in dispute, but to raise a distinct defence of fraud for the first time, which is frowned upon by the courts. Further, in the case of Zambia Consolidated Copper Mines Limited v. Chiles lie6, which is binding on this Court, the Supreme Court held that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. In the present case, the Defendant has waited until after the Plaintiff testified before applying to this Court for leave to amend his Defence, thereby introducing the allegation of fraud too late in the day to the prejudice of the Plaintiff. For the aforestated reasons, I am inclined to refuse the application for leave to amend Defence and dismiss it accordingly, with costs to the Plaintiff, to be agreed or taxed in default of agreement. Leave to appeal is granted. Delivered at Lusaka this 12th day of October, 2020 DR. W. S. MWEN JUDGE R17 to be raised for the first time. I am of the view that in the case before this Court, the amendment desired is not meant to clarify the issues in dispute, but to raise a distinct defence of fraud for the first time, which is frowned upon by the courts. Further, in the case of Zambia Consolidated Copper Mines Limited v. Chileshe6, which is binding on this Court, the Supreme Court held that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. In the present case, the Defendant has waited until after the Plaintiff testified before applying to this Court for leave to amend his Defence, thereby introducing the allegation of fraud too late in the day to the prejudice of the Plaintiff. For the aforestated reasons, I am inclined to refuse the application for leave to amend Defence and dismiss it accordingly, with costs to the Plaintiff, to be agreed or taxed in default of agreement. Leave to appeal is granted. Delivered at Lusaka this 1211 day of October, 2020 DR. W. S. MWENDA JUDGE