Fairtech Investments Limited v Rodrick Mulenga (APPEAL 226/2020) [2021] ZMCA 214 (23 February 2021)

I, IN THE COURT OF APPEAL OF ZAMBIA APPEAL 226/2020 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: 2 3 FEB 2~~1 FAIRTECH INVESTMENTS LIMITED APPELLANT AND RODRICK MULENGA RESPONDENT CORAM: Chisanga JP, Mulongoti and Siavwapa, JJA On 16th and 22nd February, 2021 For the appellant: Ms. C. Chibawe of Messrs. Ferd Jere & Co For the respondent: Mr. T. Shamakamba on brief for Mr. A. Kalikiti of MSK Advocates JUDGMENT MULONGOTI, JA delivered the Judgment of the Court. cases referred to: 1. Rosemary Bwalya, Attorney General and Commissioner of Lands v Mwanamuto Investments Limited (SCZ Judgment No. 8 of 2012) 2. Leopold Walford (Z) Limited v Unifreight (SCZ Judgment No. 23 of 1985) 3. Zambia Revenue Authority v Jayesh Shah (SCZ Judgment No. 10 of 2001) 4 . NFC Africa Mining Plc v Techno Zambia Limited (2009) ZR 236 5. The Republic of Botswana, Ministry of Works, Transport and Communications, Rinceau Design Consultants (sued as a fl.rm previously T/A KZ Architects v Mitre Limited ( 1995) ZR 113 (SC) 6. Henry M Kapoko v the People (2016/CC/023) 7. Access Bank Zambia Limited v Group Five / Zcon Business Park Joint Venture (suing as aft.rm) (SCZ/8/52/2014) 8. Standard Chartered Bank (Z) Plc v John M. C Banda (SCZ Appeal No. 94 of 2015) 9. Standard Chartered Bank Zambia Plc v Wisdom Chanda and Christopher Chanda (SCZ Judgment No. 18 of 2014) 10. Mubita Namabunga v Motor Holdings (Z) Ltd (1988 • 1989) Z. R. 188 (S. C.) 11. Collet v Van Zyl Brothers Limited (1966) ZR 65 (CA) 12. Standard Chartered Bank (Z) Plc v Willard Solomon Nthanga and others (SCZ Appeal No. 193 of 2016) Legislation referred to: 1. The High Court Act, Cap. 27 of the Laws of Zambia, sections 2, 13 2. The High Court Rules Cap. 27 of the Laws of Zambia, Orders VI rule 4 and VII rule 1(1)(a) Other works: 1. Elizabeth A Martin, Oxford Dictionary of Law, 5 t h edition, 2003 2 . P. V Baker and P. St J. Langan, Snell's Equity, 29t h edition, 1990 J2 1.0. Introduction 1.1 . This is an Appeal against the Ruling of his Lordship Musona, J which dismissed the appellant's interlocutory application to set aside the respondent's writ of summons for irregularity. 1.2. The court below held that though the respondent breached Order VII 1 rule ( 1) of the High Court Rules, Cap 27 of the Laws of Zambia (HCR) which requires that a plaintiff should endorse their physical, postal and electronic address, failure by the respondent to comply with the rule was curable as Order VII rule 1 ( 1) is a regulatory rule. 2. 0 . Background 2.1. At this stage, it is necessary to briefly state the background leading to the Appeal. 2.2. On 28th February, 2020, the respondent, Rodrick Mulenga, commenced an action in the High Court Commercial division against the appellant, Fairtech Investments Limited, by way of writ of summons and statement of claim. The respondent served the writ of summons and statement of claim on the appellant. Upon receipt of the court process, the appellant noticed that J3 writ of summons was not sealed and endorsed with the respondent's postal and electronic addresses. This prompted the appellant to take out an interlocutory application to challenge the regularity of the respondent's originating process. 2.3. The respondent opposed the application. His position was that the writ was sealed because it could not have been issued without the court sealing it. As regards the omission of his postal address, the respondent averred that he does not have a personal post office box, hence the omission. 2.4. The respondent also took the liberty to highlight that the skeleton arguments in support of the summons to set aside the writ of summons was not signed by the appellant. On that account, he beseeched the court below to expunge the arguments from the record. 2.5. The respondent also sought the indulgence of the court to proceed to hear the matter on its merits, failing which he would suffer prejudice because, according to him, the appellant had no defence to the action. J4 • 3.0. Considerations and Decision of the Court Below After hearing the parties, the court below found that it was mandatory for the respondent to endorse his postal, physical and electronic addresses on the writ of summons. The court found that the breach amounted to a breach of a regulatory rule, which, given its nature was curable as it did not go to the root of the case. In making its finding, the court below placed reliance on the cases of Leopold Walford (Z) Limited v Unifrieght2 and Zambia Revenue Authority v Jayesh Shah3 . 3 .1. The Court, thus, accepted the respondent's explanation that he did not provide his postal address because he did not have one. In exercising its discretion in favour of the respondent, the court stated that not having a postal address was a good and convincing reason for not endorsing it on the writ of summons. In that regard, the court below relied on the case of Rosemary Bwalya, Attorney General and Commissioner of Lands v Mwanamuto Investments Limited1 . 3 .2. The court below thus held that the respondent's writ of summons was not irregular and that the app ellant would not suffer any prejudice because the respondent's advocates JS endorsed their addresses on the writ thereby making it possible for the respondent to be accessed. 3.3. Further, the court below found that the appellant was also in breach of a regulatory rule because it did not sign the skeleton arguments in support of the summons to set aside the respondent's writ of summons. Based on that fact, the court below applied the maxim 'he who comes to equity must come with clean hands', and held that the appellant did not come to court with clean hands. 3.4. The court below then dismissed the appellant's interlocutory application with costs to the respondent, to be taxed in default of agreement. 4 .0. The Appeal 4.1. Dissatisfied with the Ruling of the High Court, the appellant appealed to this Court on four (4) grounds. 4 .2. The four grounds of appeal are couched as follows: l. "That the court below erred in law and/act when it held that the respondent explanation of not having a postal address was a good and sufficient reason without considering other factors that made the writ irregular; J6 2. The trial court below erred in law and fact when it extended the explanation rendered by the respondent on the absence of the postal address to justify the absence of electronic address; 3 . That the trial Court erred in law and fact when it held that the appellant did not come to equity with clean hands on the failure to sign on skeleton arguments; and 4. The trial court erred in law and fact when it dismissed the appellant's application and awarded costs to the respondent despite finding that the respondent had breached a mandatory rule." 5.0. The Arguments 5.1 . On 12th November, 2020, the appellant's counsel filed heads of argument in support of the appeal. Grounds one and two were argued jointly. Similarly, grounds three and four were argued simultaneously. 5.2 . In support of grounds one and two, it was submitted that it was a mandatory requirement for the respondent to ensure that his physical, postal and electronic addresses were clearly endorsed on the writ of summons. In that regard, counsel referred us to the provisions of Order VII rule 1 (1) HCR) which states that: "(1) The advocate of a plaintiff suing by an advocate shall endorse upon the writ of summons: (a) Physical, postal and electronic address of the plaintiff; J7 (b) His own name or firm and his own place of business and postal, physical and electronic address thereof; ... " 5.3. Additionally, that Order VI rule 7 HCR states "every writ of summons shall be sealed by the proper officer and shall thereupon be deemed to be issued". 5.4. Counsel also cited the case of Leopold Walford (Z) Limited v Unifreight2 where the Supreme Court stated that: "Order VII rule l of the High Court Rules is clear in its terms and requires not only that the address of the plaintiff's advocates shall be endorsed on the writ, but also that the address of the plaintiff shall similarly be endorsed thereon". 5.5. In view of the foregoing authorities, it was submitted that the lower court erred in law and fact when it accepted the respondent's explanation for failure to comply with the rules without addressing its mind to the statutory requirement to provide his postal and electronic addresses. Furthermore that, a writ of summons cannot be considered to have been issued unless it has been sealed by the proper officer. 5.6. It was the further submission of counsel that the respondent was mandated to follow the rules of court as they are intended to assist in the proper and orderly administration of justice and J8 as such they must be strictly followed. The case of NFC Africa Mining Pie v Techno Zambia Limited4 was cited as authority for that argument. 5.7. As regards grounds three and four, counsel contended that the lower court's order condemning the appellant in costs for omitting to sign their skeleton arguments was an error of law and fact. It was argued that the failure to sign the skeleton arguments was not fatal and did not imply that counsel had not come to court with clean hands to warrant a dismissal of the appellant's application with costs. Instead, as guided in the case of Zambia Revenue Authority v Jayesh Shah3 , where a rule is regulatory and directory, a defect arising from a breach of such a rule is curable and not fatal. The rule in question is different from the mandatory rule concerning endorsement of addresses that the respondent was obliged to comply with. The appellant was thus at pains to understand why it was condemned in costs for omitting to sign skeleton arguments. 5.8. The appellant's counsel prayed that the appeal b e allowed and the ruling of the High Court set aside. J9 e 5.9. In response, the respondent's counsel filed heads of argument on 12th February, 2021. 5.10. In response to grounds one and two it is submitted that the omission to seal the court process cannot be attributed to the respondent because sealing of court process 1s done administratively by a court officer. In that regard, we were referred to Order VII rule 7 HCR which states that the duty is carried out by a proper officer, who is identifiable, by reference to section 2 of the High Court Act. That under the provision, the proper officer is either the Assistant Registrar or the Deputy Assistant Registrar. As the defect was administrative and procedural, it was curable by simply taking the documents back to the High Court for the proper officer to affix the seal. 5 . 11. Relying on the cases of The Republic of Bostwana, Ministry of Works, Transport and Communications, Rinceau Design Consultants (sued as a firm previously T / A KZ Architects v Mitre Limited5 and Leopold Walford v Unifreight2 , it was submitted that the breach was regulatory and curable and did not warrant the setting aside of the writ of summons and statement of claim. JlO 5.12. It was also submitted that pursuant to Orders 2/ 1 and 2/ 1/6 of the Rules of the Supreme Court of England, 1999 edition (RSC) , the failure ought to have been treated as an irregularity that would not nullify the proceedings. 5.13. Still on grounds one and two , it was submitted that Article 118(2)(e) of the Constitution enjoins the courts to act in the interest of justice, without undue regard to procedural technicalities. Moreover, that cases should be heard on their substance and merit. To buttress this line of argument counsel cited the cases of Henry M. Kapoko v the People6 and Access Bank Zambia Limited v Group Five / Zcon Business Park Joint Venture (suing as a firm,7 . 5.14. Additionally that, the lower court properly applied its discretionary power conferred on it by section 13 of the High Court Act when it found that the omission to include the respondent's postal and electronic addresses was curable and not fatal . Counsel added that it is common in Zambia to find individuals without postal and electronic addresses. 5.15. It was the further submission of counsel that the appellant also breached the rules of court by omitting to sign the skeleton Jll arguments in support of the application to set aside the respondents writ of summons. Hence, the court was on firm ground when it applied the equitable maxim, 'he who comes to equity must come with clean hands' as section 13 of the High Court Act enjoins the court to administer law and equity concurrently. 5.16. With regard to costs, it was argued that the court below exercised judicial discretion when it awarded costs to the respondent. This is because costs are in the discretion of the court. 6. 0. The Hearing 6.1. At the hearing of the appeal, Ms. Chibawe, who appeared for the appellant, placed reliance on the appellants heads of argument which she augmented viva voce. 6 .2. She reiterated that the gist of the appeal is that the respondent's writ of summons was d efective because it did not indicate the r e spondent's postal and electronic addresses, and was not sealed by the court. J12 6 .3. To support her assertion, she cited the case of Standard Chartered Bank (Z) Pie v John M. C Banda8 in which the Suprem e Court h eld that the rules of court ought to be complied with and any party who breaches them does so at his or her own peril. However, if an irregularity can be cured without undue prejudice then it is desirable that such irregularity be put right, subject to an order as of costs, against the erring party. 6.4. Additionally, we were r eferred to the case of Standard Chartered Bank v Wisdom Chanda and another9 in which the Suprem e Court took the view that an erring party must make an application to rectify an irregularity and the court cannot proceed as if the defect never existed. 6 .5. In response , Mr. Shamakamba who appeared on behalf of the respondent informed the Court that his instructions were to entirely rely on the r espondent's hea ds of argument. 7 .0 . Considerations and decision on appeal 7 . 1. As regards grounds one and two, on the writ of summons not being sealed and the respondent's postal and electronic addresses not being endorsed thereon, Order VI rule (4)(a) HCR J13 requires originating process to be sealed. It provides that the proper officer shall: "seal, with the official seal, the writs of summons and the statement of claim where such statement of claim is on a separate sheet." 7.2. It is clear that the responsibility to seal the writ of summons lay on court officials and not the respondent. As canvassed by the respondent's counsel, at paragraph 5.10, this defect is curable. 7.3. Concerning the endorsement of the postal and electronic addresses on the writ of summons and statement of claim, the rules are clear that the documents must be endorsed with the postal and electronic addresses per Order VII rule 1 HCR as stated at paragraph 5.2. 7.4. There is no dispute between the parties that the writ of summons and statement of claim filed by the respondent in the High Court was not endorsed with the respondent's postal and electronic address. As such the respondent was in breach of the rules. 7 .5. The court below considered the respondent's explanation that he did not have a postal address as a good and sufficient reason J14 .. for the omission and did not address the issue of the electronic address. This was erroneous. We are fortified by the pronouncement of the Supreme Court in Standard Chartered Bank v Wisdom Chanda9 in which the court stated as follows : " ... We have stated in a plethora of cases that, any reason, no matter how well articulated, cannot of its own, cure a defect. The party concerned must take out an appropriate application seeking to cure a defect; and that the court has no mandate to choose to ignore the effect and, of its own motion, proceed as if the defect never existed." 7.6. In that case, the Supreme Court asked the appellant's counsel whether the Court could make an order to amend the writ so as to comply with the rules in the absence of an application. The Supreme Court said that it had inherent power to make such an order. 7.7. In the present case, we note that the respondent's advocates did not make a formal application for an amendment. However, the respondent's submission to the effect that the breach is curable somehow demonstrates the respondent's willingness to cure the defect. JlS • 7.8. We are alive to the appellant's submission that the respondent's omission was a breach of a mandatory rule and thus fatal. This is because the wording of the rules uses the word "shall". 7. 9 . We are of the considered view that the use of the word "shall" does not automatically make the rule mandatory. In interpreting the import of the use of the word shall, we are guided by the decision of the Supreme Court in the case of Mubita Namabunga v Motor Holdings (Z) Ltd10 that: "we do not accept that the use of the word "shall" automatically makes the rule mandatory. In all such cases it is for the court to construe the intention and effect of a rule, and having regard to that construction, whether or not such rule is to be regarded as mandatory or regulatory." 7.10. This was the approach earlier taken in the case of Leopold Walford v Unifreight2 in which the Supreme Court set the Order of the High Court to set aside the writ of summons aside for irregularity for omitting the plaintiffs address. The Supreme Court took a similar approach in several other subsequent cases including Access Bank (Z) Limited v Group Five / ZCON7 , and Standard Chartered Bank v John M. C Banda8 in which the plaintiffs electronic mail address was omitted. J16 7 . 11. Adverting to the present case, we are of the considered view that the respondent's omission to endorse the writ of summons with his postal and electronic address was not fatal as the defect is curable. Much as the explanation for failure to endorse the postal address could be valid, the respondent should have at least endorsed his electronic address. We find merit in grounds one and two. We order the respondent to cure the defects about lack of the seal by submitting the writ for sealing after endorsing the electronic address within 21 days from the date of this Judgment. 7.12. As regards ground three on the equitable maxim 'he who comes to equity must come with clean hands', we hold that the maxim was misapplied. While section 13 of the High Court Act confers power on High Court Judges to administer law and equity concurrently, there was no equitable relief being sought to have warranted the court below to invoke the maxim. According to Oxford Dictionary of Law, 5 th edition at page 178, equitable remedies are defined to mean remedies that were granted by equity to redress a wrong. The main remedies b eing specific performance, rescission, cancellation, rectification, J17 account, injunction, and appointment of a receiver. Similar sentiments are echoed by the learned authors of Snell's Equity, 29th edition at page 582 concerning the remedies that equity evolved. Given the scope of the application of equitable remedies, although not exhaustive, the court erred to stretch the failure by the appellant to sign skeleton arguments into the realm of equity so as to apply the maxim in question. 7.13. In any case, the Court was asked to expunge the skeleton arguments from the record which it should have done without resorting to equity and letting the offending documents to grace the record. 7 . 14. Concerning the question of costs, authorities abound that the costs are in the discretion of the court and that the discretion ought to be exercised judiciously. The appellant's application in the court below had merit. The respondent was in breach of the rules, both parties and the court were alive to that fact. It was thus not prudent for the court below to have condemned the appellant in costs. 7.15. For that reason, we hold that the court below did not exercise its discretion judiciously. This warrants this Court to interfere J18 with the award of costs. We are fortified by th e decision of the Supreme Court in Collet v Van Zyl Brothers Limited11 , and more recently in the case of Standard Chartered Bank (Z) Pie v Willard Solomon -Nthanga and others 12 . We find merit in ground four and set aside the costs order in the court below. 7.16. The appeal is allowed to the extent indicated above. Each party to bear own costs. F. M. CHISANGA JUDGE PRESIDENT COURT OF APPEAL JUDGE I M. J. SIAVWAPA COURT OF APPEAL JUDGE J19