Eureka Construction Ltd v Attorney General [2006] ZMSC 35 (29 March 2006)

IN THE SUPREME COURT OF ZAMBIA. SCZ JUDGMENT NO. 16 OF 2006 HOLDEN AT NDOLA AND LUSAKA APPEAL NO. 133 OF 2003 (190) (CIVIL JURISDICTION) BETWEEN: EUREKA CONSTRUCTION LTD AND ATTORNEY GENERAL CORAM: SAKALA, CJ., CHIRWA, AG. DCJ., MUSHABATI, JS 6th December, 2005 and 29th March, 2006 For the Appellant: Mr. Chifumu K. Banda SC., ofChifumu Banda and Associates For the Respondent: Mr. Joseph Jalasi, Principal State Advocate JUDGMENT Sakala, CJ., delivered the judgment of the Court. Cases referred to: 1. The Attorney-General v Marcus Kampumba Achiume (1983) ZR 1 2. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) 3. 4. 5. ZR.172 Khalid Mohamed v The Attorney-General (1982) ZR. 49 BOZ v Chibote Meat Corporation, SCZ judgment No. 19 of 1999 Pan Electronics Limited and Savvas Panayiotides and Others v Andreas Miltiadous and Others (1988/1989) ZR. 19 • , (191) 6. Van Boxtel v Kearney (1987) ZR. 63 Perry v Clissold (1907) AC 73 7. When we heard this appeal, Mr. M. Nyirenda ofKafunda and Company, informed the Court that Mr. Banda, Cooosel for the Appellant, had telephoned him asking him to attend Court on his behalf and to ask the Court to determine the appeal on the basis of the heads of argument as he was unable to attend the Court. Mr. Nyirenda also informed the Court that Mr. Jalasi for the Respondent had asked him to inform the Court to determine the appeal on the basis of the heads of argument in response. This matter is, therefore, being determined on the basis of the heads of argument without oral submissions. This is an appeal against part of the judgment of the High Court dismissing the Appellant's claim for possession of stands Nos. 1756, 2132, 3718, 4080 and 4268, situate at Kitwe. There is also a cross-appeal by the > Respondent that the High Court judgment, t¥ s~yt ct of the appeal, be varie_d to the extent and in the manner and upon the grounos set out in the Notice of the Respondent's cross-appeal. At the outset, it must be mentioned that initially, the Appellant had instituted three separate actions against the Respondent. By consent of the parties, the three actions were consolidated into one, under cause No. (192) 1996/HP/2179. In the consolidated cause, the Appellant claimed possession of eight stands numbered 1756, 2132, 3718, 3972, 3976A, 3976B, 4080 and 4268, all situate in Kitwe and currently in occupation and possession of the Respondent. The Appellant also claimed mesne profits and interest for the use and occupation of the properties from the 10th of January, 1976 until delivery of the possession. The salient facts were not in serious dispute. Sometime in 1976, the Special Investigations Team for Economy and Trade (SITET) found Messrs G. Di Pasquale, P. Sciascia, L. Giordani and Autoquip Ltd. to have externalized money in contravention of the Foreign Exchange Control Act and its Regulations. The three accused persons were Directors of the Appellant Company, while Autoquip Ltd was a>subsidiary company of the Appellant. ~ They were fined a total sum of K804,'$0J??, being treble the sum of K.268,250.00 which was externalized. According to the Appellant's case, as can be ascertained from the documentary and oral evidence, in settlement of a fine, the accused made various cash payments totaling Kl 68,000 and purported to pay the balance by (193) letting the Appellant's eight properties to the Respondent. But instead of leasing the properties, the Respondent accommodated its employees and subsequently refused to surrender the properties to the Appellant even after the fine had apparently been redeemed through unpaid rentals. The Appellant contended that there was no agreement between either the accused or the Respondent and itself to surrender the properties to the Respondent in full settlement of the fine and that the accused Directors and the subsidiary company were distinct and separate from the Appellant company and their actions could not be attributed to the Appellant company. In the Statement of Claim, the Appellant pleaded that the Respondent wrongly entered the properties on 10th January 1976 and have wrongfully taken possession and have thereby trespassed. > A The Respondent's case was that the~ A~p~llant, its subsidiary and the Directors~ were involved in fraudulent externalization of funds. They were fined. They opted for a negotiated settlement. They surrendered the properties under dispute to the Respondent in full and final settlement of the fine. However, due to administrative delays, the Title Deeds have remained in the Appellant company's name. (194) In their amended defence to the Statement of Claim, the Respondent, among other things, pleaded that the Appellant's Statement of Claim did not disclose any cause of action as the Appellant's cause of action was statute barred. In support of the consolidated claim, the Appellant called two witnesses. Their combined evidence is that the eight stands are still held on title by the Appellant Company; and that they were wrongfully taken by the Respondent on 10th January 1976. In his evidence, PWl, the Appellant company's Manager, testified that in order to have Mr. Dipasquale, one of the Directors, who had been detained released, and because it was not able to pay the fine in full, it was agreed with ~ SITET that the eight properties be given to jhe r;ppondent to cover the balance of the fine. Later in his evidence, PWI, changed and told the Court that the Appellant did not give the eight stands to the Respondent; but that the properties were being held by the Respondent as security for the release of Mr. Dipasquale. (195) PW2, the former Operations Manager, testified that the Directors of the Appellant Company were not authorized to surrender the stands to the Respondent. She was aware that Messrs A. E. Clarke & Co. of Kitwe were the Appellants advocates: She denied that the Appellant gave instructions to its advocates to surrender the properties to the state. The witness called on behalf of the Respondent confirmed that the Appellants lawyers agreed to a negotiated settlement under which they were to pay a fine and surrender certain houses. The learned trial Judge considered the oral and documentary evidence on record as well as the submissions on behalf of the parties. The Court observed that in the submissions reference was made to eight properties as being the > > properties in controversy upon which the :(>rQ.~~dings were based, while the defendant's oral testimony suggested tha,t only five properties were involved. ' On the basis of this observation, the Court found that stands Nos. 3972, 3976A and 3976B, Kitwe were not in contention because there was no evidence on behalf of the Respondent to rebut the claim for repossession of these houses. The Court ordered the surrender of the three houses back to the Appellant; J (196) pointing out that their occupation was wrongful and that the Respondent was liable in damages in form of rentals to be assessed from 10th January 1976 to date of vacation of the houses. These findings and orders are the subject of the cross appeal. In dealing with the remaining five stands, the Court observed that it had been argued and pleaded on behalf of the Respondent that the dispute over the houses should not have been brought to Court because it was statute barred. But the Court found that it was unfortunate that the issue, which appeared to be a preliminary issue, was not argued at the beginning of the trial. Thus, the Court held that the Respondent, having not raised the issue at the very beginning of the trial, the Respondent was barred from raising it in the submission. This holding is also the subject of the cross-appeal. ~ After further addressing itself to the evidence and submissions, the Court rejected the evidence of PW2 in relation to the leasing of the properties. The Court found PW2 not a witness of truth as she almost misled the Court that the arrangement to lease the stands was in writing and that the three Directors (accused) were not authorized to surrender the stands to the Respondent. Yet, in (197) cross-examination, she admitted telling a lie that she was a member of the Board of the Appellant. The Court also found that PWl was not a truthful witness as he was evasive and appeared not to know why he was in the witness box. The Court found as a fact that Messrs A. E. Clarke & Company acted for the three accused Directors and Autoquip Ltd. The Court further found that, by letter dated 4th March, 1976, Messrs A. E. Clarke & Company informed the Minister of Finance and National Planning that they had been instructed by the three Directors and Autoquip Ltd in connection with an investigation carried out in their affairs by SITET; that their clients admitted externalizing funds without permission; that in settlement of the fine, they were instructed to make an offer in full and final settlement of a cash payment of Kl 68,000; that in addition to cash, their clients would transfer to whom the Minister may direct five plots; and ,.., that by letter dated 11 th June, 1976, Messrs A. E~·: ~larke and Co. undertook to prepare the necessary deeds of surrender to the Respondent. The Court noted that the accused Directors were not only Directors of the Appellant but also shareholders who decide~ to surrender the properties. (198) The Court also found that the stands had not been surrendered to the Respondent; that the omission did not affect the terms of the settlement; and that even now the properties could still be transferred by way of surrender. In conclusion, the Court dismiss~d the Appellant's clain1. Hence the appeal to this Court. The memorandum of appeal contained five grounds. These grounds of appeal are: (1) that the leaned trial Judge erred in law and fact in holding that the subject properties, namely, Stands Nos. 2123, 3718, 4080, 4268 and 1756, Kitwe, had been surrendered to the State by the Appellant Company without prior authorization by the Appellant Company; (2) that the learned trial Judge erred and misdirected himself in law and f?ct in holding that there had been a transfer of the subject properties to the state hy"·Way of surrender even in the ,,.-t absence of the necessary- company resolution and the Deeds of Surrender; (3) that the Court below erred and misdirected itself in law and fact in relying on the letter of Messrs. A. E. Clarke and Company purporting to propose the transfer to the State of the subject properties when the firm was not acting and had no instructions to act for the Appellant before the court in cause No. 1996/HP /2179 (199) nor in any cause in respect of the subject properties; (4) that the Court below was not entitled in law and fact and without evidence before it to hold that the accused before it were shareholders in the Appellant company and were capable of passing property in the subject properties to the State; and (5) that the learned trial Judge ought to have ruled that since the Title Deeds for the subject properties are still held by the Appellant the evidence that the accused persons agreed with the State only to collect the rentals for a period of 13 years from the subject properties in final settlement of the fine levied against the accused persons was truthful in any event it is the only plausible interpretation and understanding of the case. The Respondent's notice of the cross-appeal contains two grounds; namely, (1) that the learned trial Judge erred in law and fact when he held that JI Stand Numbers 3972, 3976A and 3976B w~e ~% in contention and held the Respondent liable in damages and interest as the Respondent did not lead .- evidence when in fact the correct legal position was that the entire action before the Court was statute barred; and (2) that the learned trial Judge erred in law when he held that the Respondent was barred from raising the pleaded defence of limitation of action under the provisions of Section 4(3) of the Limitation Act (200) of England applicable to Zambia by virtue of Law Reform (Limitation of Actions, etc.) Act, Chapter 72 of the Laws of Zambia, notwithstanding the fact that the defence was pleaded. Both parties relied on written heads of argument filed with the Court based on the grounds of appeal and on the grounds of the cross-appeal. The gist of the written heads of argument on ground one is that stands Nos. 2132, 3718, 4080, 4268 and 1756 belonged to the Appellant; that the Appellant held and still holds valid certificates of Title of those properties as against any other person; that the Appellant was no~ party to the alleged agreement between the accused Directors and the Respondent to settle a debt; that the Appellant could not be bound to \he agreement without authorization by > way of the Appellants Board of Directors ltes9)1,ltion; that the trial Judge misdirected itself that there was such a resolution; and that the Appellant did not commit any offence under the then Exchange Control Act. The summary of the arguments in ground two is that Messrs A. E. Clarke & Company's letters of 4th March and 11 th June, 1976, did not constitute a deed of transfer within the meaning of Sections 4 and 5 of the Lands and Deeds (201) Registry Act, Cap. 185 of the Laws of Zambia; that the lawyers' letters were not registrable and did not constitute a contract; and that the parties to the "negotiated settlement" did not include the Appellant. On ground three, the short argument was that there was no evidence that the three Directors and the subsidiary company acted on behalf of the Appellant when they violated the then Exchange Control Act. The summary of the arguments on ground four is that Messrs A. E. Clarke & Company's letter of 4 th March, 1976 did not specify the "company" referred to in that letter but the Appellant was simply assumed to be the "company"; that there was no evidence that the three Directors and the subsidiary company "owned" or had an interest in the properties; and that it was not correct for the ~ , .. trial Judge to read a shareholding capacity/pbiI3~~ the three Directors and the subsidiary company in the Appellant. The gist of the arguments in ground five is that the Appellant has Title Deeds and since 1976 they have not surrendered the properties; that this fact cannot be glossed over as the trial Judge did; that there was no evidence that the Commissioner of Lands was guilty of dereliction of duty; and that the (202) conclusion that the Commissioner omitted to secure government property was not supported. The summary of the response to ground one is that the findings of the trial ' Judge are very clear as the Court found PWs 1 and 2's evidence to be untruthful and unreliable; and that these findings on the authority of the cases of The Attorney -General v Marcus Kampumba Achiume < ), Wilson Masauso Zulu v Avondale Housing Project Limited <2> and Khalid Mohamed v The Attorney-General < 3> cannot be disturbed unless they are perverse. It was submitted that the Appellant lamentably failed to prove its case as the witnesses were found untruthful and not credible. It was further submitted that ~e doctrine of estoppel prevents the > Appellant from denying that Messrs A. E:" Cl~e and Company were not . A instructed to act for the Appellant; that the evidence was ovenvhelming that Messrs A. E. Clarke and Company were at all material times in possession of authority apparent or otherwise to act for the Appellant; and that whichever way one chooses to look at it, Messrs A. E. Clarke and Company held out to have apparent authority to act for the Appellant. (203) The summary of the response to ground two is that the Appellant was attempting to seek a remedy relying on its own default of failing to transfer the properties because of the absence of a Board resolution and a deed of surrender; that the Appellants are estoppel from relying on their own default and from denying that Messrs A. E. Clarke & Company had authority to act for them; that the uncontroveted evidence of the Respondent established that the three accused Directors were shareholders in Autoquip and the Appellants are estoppel from denying that Messrs A. E. Clarke & Company were not acting for them because of the absence of a Board Resolution or deed of surrender; that the legal position was that the beneficial owners, especially the shareholders, enjoy, as a matter of right, overriding authority over a company's affairs; and that theirs is a controlling voice over the wishes of more Directors and nominees. The case of BOZ v Chibote Meat Corporation < 4>, the case of Pan Electronics Limited Miltiadous and Others < and Savv·as Panayiotides and Others v Anstre~~ > and the case of Van Boxtel v Kearney <6 > were cited in support of the legal position of shareholders as a controlling voice over the wishes of mere Directors. On ground three, the Respondents relied on their submissions in ground one and two. (204) On ground four, the Respondents also relied on submissions on grounds one and two; but for emphasis it was pointed out that the trial Judge's finding that the three accused Directors were shareholders was based on the evidence of RWl which was not disputed, while that of PWs 1 and 2 was held to be untruthful and unreliable. The gist of the response to ground five is that there was no evidence of a 13 years lease at the end of which the Respondent was to give up possession of the eight properties in dispute as PW2 on the point turned out to have been telling lies; and that no cause has been shown to warrant an interference of the lower Court's finding of fact. We have considered the documentary evidence on record, the judgment of the trial Court as well as the written !reads of argument by both Counsel on behalf of the parties. The fact that the three accused Directors and the subsidiary company had contravened the provisions of the then Exchange Control Act was common cause. It was also common cause that they were fined treble the amount of (205) K268,250.00 externalized; bringing the total fine to K804,750. It was not in dispute that they paid only Kl68,000.00. The question for determination on grounds one and two is how the balance of the fine was settled? The case for the Respondent is that SITET was offered the properties in issue in lieu of the fine for the offences committed under the Exchange Control Act. In support of their case, the Respondent produced a letter from Messrs A. E. Clarke and Company, a law firm based in Kitwe. This letter is dated 4th March, 1976, reference KH/AR. It was addressed to the then Minister of Finance and National Planning. The opening two paragraphs of the letter read: "We have been instructed by Autoquip Limited, Mr. G. Di Pasquale, Mr. P. Sciascia and Mr. L. yiordani in connection with an investigation carried out into their affairs by the Special Investigation Team, Economy and Trade (SITET), 1\tini&tfN of Home Affairs. Our clients admit that on various dates between the 1st January 1972 and the date of the commencement of the investigations into them caused or admitted (to causo)? To be made outside Zambia without the permission of the Minister under the Exchange Control Act and Regulations totaling K268,250." We have no doubt in our minds that from the two paragraphs of the letter, Messrs A. E. Clarke and Company, a law firm, was acting for the three accused (206) Directors and the subsidiary company. We also accept that the three accused Directors and the subsidiary company admitted contravening the Exchange Control Act. In the third paragraph of the same letter of 4th March, 1976, the advocates had this to say on behalf of their clients: "In settlement of a proposed fine at treble the basic amount, i.e. K804,750, we are instructed to make the following offer in full and final settlement of the same, to be treated as an agreed fine under Section 6A(1) of the Act and sub-section 1,2,3, and 4 of the Exchange Control Regulations, Cap. 593, of the Laws of Zambia. Particular of off er A cash payment ofK168,000." From this paragraph, we are satisfied that there was a settlement of an offer in full and final on behalf of the three accused Directors and the subsidiary company. The fourth paragraph is critical to the whole appeal. The paragraph reads: A I ~·:Jr "In addition to the cash our clients will transfer to whom the Minister may direct the following leasehold properties owned by our clients or by the company (meaning the paintift) in which they have an interest. All the said properties will be transferred free from mortgage and rental arrears thereof will accrue to the flats from the 1st April, 1976 notwithstanding that final transfer of title may not have taken place (insertion in brackets mine). ! (207) Gross annual rental value K 3,600 28,000 21,000 3,600 3,600" Plot subject Plot 2132, Kitwe Plot 3718, Kitwe Plot 4080, Kitwe Plo.t 4268, Kitwe Plot 1756, Kitwe From this paragraph, we are satisfied that the question of a lease between the parties did not arise. What followed after receipt of the letter, according to the documentary evidence, is that the Minister accepted the offer and on 23rd March, 1976, the Minister instructed the Commissioner of Lands to attend to the legal formalities for the surrender of the stands to the Government. The Commissioner of Lands then wrote Messrs A. E. Clarke & Company. The advocates responded as follows: "11th June 1976 Lands Department, P. O. Box 69, LUSAKA Dear Sirs, Surrender of Stands Nos 2132, 3718, 4080, 4268 and 1756, Kitwe Thank you for your letter of the 3rd June and we are pleased to hear from you. What you state is in fact correct and we will prepare the necessary deeds of surrender to the State as soon as all the certificates of title are in our possession. Yours faithfully A. E. Clarke & Co." (208) In our considered opinion, on the documentary evidence on record, the arguments of authorization by the Appellant company and the question of a company resolution, as contended in grounds one and two, did not arise. We are satisfied that the properties in issue had, been surrendered to the State with the authorization of the Appellant Company. We are also satisfied that there was a transfer of the subject properties to the State by way of surrender. The issue of the necessary company resolution was a domestic one, nothing to do with the Respondent. Indeed, the Appellant are obliged to prepare the Deeds of Surrender. Grounds one and two have no merit. They are dismissed. In ground three, the Appellant argued that the trial Court erred in relying on the letter of Messrs. A. E. Clarke & Company because the firm was not acting for them and had no instructions to act fur the Appellant in respect of the subject properties. We totally agree with the arguments and submissions on behalf of the Respondent that on the documentary evidence on record, the Appellant are estopped from denying that Messrs. A. E. Clarke and Company acted for them. Above all, the Appellant adduced no evidence that Messrs A. E. Clarke and (209) Company had no instructions to act for them. The Respondent's evidence, as per R W 1, was that the three accused Directors were the owners of Autoquip and the Appellant. This evidence was not contradicted. We accept it in toto. Ground three therefore falls away and it is dismissed. The arguments on ground four were that Messrs A. E. Clarke and Company's letter of 4th March, 1976 did not specify the "company" referred to in that letter; but that it was assumed that the three Directors and the subsidiary company owned the Appellant Company. The issue of whether the three accused Directors and the subsidiary company owned the Appellant Company has already been settled when discussing grounds one, two and also ground three. In our view, the evidence of RWl, which was the only credible evidence, clearly established that the three accused Directors and the subsidiary company owned the Appellant Company. The letter of 4th March, 1976 from Messrs. A. E. ~~ke was very clear. It stated: A "In addition to the cash our clients will transfer to whom the Minister may direct the following lease hold properties owned by our clients or by the company (meaning the plaintifO in which they have an interest. (underline ours) The Appellant was the Plaintiff in the Court below. We are satisfied that the Court below was on firm ground in holding that the accused before it were shareholders in the Appellant /Plaintiff Company and were capable of passing (210) property in the subject properties to the State. And they did pass title in the subject properties to the Respondent. Ground four also falls away. Ground five has already been dealt with when we accepted that there was no lease agreement. The fact that the Title Deeds are still with the Appellant ' does not change the fact that the properties were transferred. Ground five is also dismissed. In conclusion, the whole appeal is dismissed with costs to be taxed in default of agreement. We now tum to the cross-appeal. At the outset, we must point out that there were no heads of argument written or oral in response to the heads of argument in the cross-appeal. The first ground of the cross-appeal is against the finding that Stands Nos. 3972, 3976A and 3976B were not in contention; and that the Respondent was liable in damages and interest. The gist of the written heads of argument on the first ground of the cross-appeal is that the entire action was statute barred as the cause of action commenced in 1976 when the Appellant voluntarily gave up (211) possession and ownership of the eight properties; and that the Respondent pleaded the defence of the Statute of Limitation. Counsel cited Halsbury's Laws of England, Volume 28, 4th Edition at page 705 and the Limitation Act of 1939 applicable to Zambia by virtue of the Law Reform Act Cap. 72 of the Laws of Zambia which prescribes a normal limitation of a period of twelve years from the date on which the right of action accrued for actions for the recovery of land. Counsel pointed out that under Section 16 of the Limitation Act of 1939, after the prescribed period of twelve years has expired, the title of the person whose action has been barred is extinguished. On the effect of the extinction of title of the person whose right to sue has become statute barred, Counsel referred us to page 319 of the same Halsbury's Law of England where it is stated as follows: > > ' : " . ... the effect of barring a true owner's right is to make the possessor's title an absolute and such title, if proved can even be forced on a purchaser. Once the true owners title has been barred no subsequent acknowledgement can revive his right." ;•: /1 , rl This position, it was pointed out, was cited in the case of Perry vs Clisso)d <7>, It was submitted that in the instant case, the cause of action to recover the eight properties commenced on 10th January, 1976 when the (212) Respondent took over possession of the properties; that the Appellant's right extinguished on 1st January, 1988; and that the extinction of the Appellant's right to sue for the recovery of the land meant that title transfer to the Respondent, being the person in possession, is by operation of law. • It was contended that notwithstanding the fact that the Respondent did not lead any evidence on Stand Nos. 3972, 3976A and 3976B, the fact still remained that the action was statute barred and the Appellant's right to their ownership became extinguished on 1st January, 1988 and transferred to the Respondent. In the alternative, it was submitted on ground one of the cross appeal that the trial Judge erred when he held simply because the Respondent did not lead evidence on Stands Nos. 3972, 3976A and 3976B then judgment should be entered in favour of the Appellant. Couns~l referred the Court to the case of Khalid Mohamed v. The Attorney-General @.)/land the case of Wilson A ) in which cases this Court Masauso Zulu v Avondale Housing Project Ltd < has said that a Plaintiff must prove his case and if he fails to do so, the mere failure of the opponents' defence does not entitle him to judgment. It was submitted that it was incumbent on the trial Judge not to merely allow the (213) Appellant's claim on the basis that the Respondent had not led any evidence. On this ground, the Court was urged to allow the cross appeal. In dealing with the issue of the Statute of Limitation, the learned trial Judge had this to say:- , "In the submission of Mr. Jalasi, counsel for the defendant, it is argued that the dispute over the houses should not have been brought to court because it is statute barred under Section 4 (3) of the Limitation Act, 1939, an English Act very much applicable to this country. I also note from the pleadings that the defendant actually pleaded that the plaintiff's statement of claim did not disclose any cause of action as the claim was statute barred; this is to be found in paragraph 4 of the amended defence. The unfortunate part is that this issue, which appears to me to be preliminary issue was not argued at the beginning of the trial. The defendant, having not raised it at the very beginning of the trial is barred from raising it in the submissions." We are satisfied that the learned trial Judge misdirected himself in dealing with the issue under Section 4(3) of the ~imitation Act of 1939 . The defence of statute barred is a po{nt b/1aw. It can be raised as a .-t preliminary issue or at the end of the trial in the arguments. In the instant case, it was pleaded. Whether it was argued as a preliminary issue or not, it was immaterial, it did not have to be raised at the beginning of trial and if not, it was not fatal. The Respondent was not, therefore, barred from raising it in the (214) submissions. It was pleaded. It was raised in the submissions. The Court was duty bound to decide on it whether or not the whole action was statute barred. On the facts of this case, the, Appellant's cause of action, which commenced on 10th January 1976, was certainly statute barred. The first ground of the cross appeal therefore succeeds. I The alternative argument too on ground one must succeed. The learned trial Judge erred when he held that because the Respondent did not lead evidence on Stands Nos. 3972, 3976A and 3976B, then automatically judgment should be entered in favour of the Appellant. The first ground of the cross appeal is allowed. The foregoing arguments on ground o;e a1J/ resolve ground two of the , rl cross appeal which is that the trial Judge erred in law when he held that the Respondent was barred from raising the pleaded defence of limitation of action under the Limitation Act of England. We agree that the trial Judge erred. But we wish to stress that in terms of Order 18 Rule 11, a party may, by his pleadings, raise any point of law either as a preliminary issue or at trial. (215) The cross appeal based on ground two also succeeds. In the result, the cross appeal is allowed with costs to be taxed in default of agreement. ......... . -~ ............ . E. L. SAKALA CIDEF JUSTICE ........ -~-.......... ........ . D. K. CHIRWA AG. DEPUTY CHIEF JUSTICE C. S. MUSHABATI SUPREME COURT JUDGE