First National Bank Zambia Limited v Pro-Fab Zambia Limited and Ors (2016/HP/0047) [2017] ZMHC 564 (31 August 2017)

IN THE HIGH COURT FOR ZAMBIA 2016/HP/0047 AT TH E PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Commercial Registry) BETWEEN: FIRST f ATIONAL BANK ZAMBIA LIMITED AND I PRO-FAB ZAMBIA LIMITED ALEXANDER ZIMBA MICAHEL ZULU WINNF, DAH CHITONDO I APPLICANT 1 st RESPONDENT 2 n d RESPONDENT 3 r d RESPONDENT 4 t h RESPONDENT e Honourable Justice B . G. Lungu on the 8th day of February, h b.mbers . . I For the A iplzcant For the R spondents: I I Mr. Moonga, I n - house Counsel Mr. E Khosa, Messrs Nganga Yalenga & Associates RULING CASES REFERRED TO; 1. 2 . Com'fi1onwealth Development Corporation vs. Central African Power Corpff rafion ( 1968) Z . R 70; Michq el Ch ilufya Sata v. Chanda Chiimba m Zambia National Broad casting Corporation, Muvi TV Li mited, Mobi TV International Li mited; Rl I Page \ 3 . Nida Properties Limited vs. Omnia Fe rtilizer Limited, Appeal No. 164 of 2 01 3. LEGISLATION AND OTHER WORKS REFERRED TO: 1. Section 10, High Court Act, Chapter 27 of the Laws of Zambia; 2 . Order 28, Rule lA, Rules of the Supreme Court, 1965 (1999 edition), the W hite Book; 3. Ord er LUI, Rule 1 O, High Court Rules, High Court Act , Chapt er 27 of the Laws of Zambi a This i an application on the part of the Applicant for an order that the 4 tn Respondent's Further Affidavit, 2 nd Further Affidavit and SkeletQn Arguments be expunged from the record. The a lit:ation was made by way of Summons, filed together with avit in Support, sworn by Theophilus Tukwayo Gausi, and ~ rguments, all of which were filed on 25th November, 2016. In ord r to clothe this application with perspective, I find it necess , at this juncture, to pen the chronology in which docum , ts were filed as between the Applicant and 4 th Respondent: 1. 3 rd February, 2016, the Applicant commenced roceedings against the Respondent by way of Originating u mons and a supporting Affidavit; R2 l Page 11. On 4 th April, 2016, the 4 th Respondent filed her Affidavit in Opposition to the Originating Summons; 111. On 2 nd June, 20 16 the 4 th Respondent filed a Further Affidavit in Opposition to the Originating Summons; 1v. On 7 th June, 2016, the Applicant file an Affidavit in Reply to the 4 th Respondent's Affidavit in Opposition to the Originating Summons; and v. On 8 th September, 2016 the 4 th Respondent filed a 2nd I Further Affidavit in Opposition to the Originating Summons together with Skeleton Arguments of even date It is t~ :tling of the 4 th Respondent's Further Affidavit, 2°d Further Affidav ~d associated Skeleton Arguments that the Applicant In thei Skeleton Arguments, Counsel for the Applicant submit that ru le lA of the White Book prescribes the procedure for the of affidavit evidence in any cause or matter begun by origina ng summons. The procedure was articulated to commence 1davit in support of the originating summons, on the one hand; t be countered by an {opposing} affidavit on the other hand; which i turn was to be countered by an affidavit {in reply} from R3 I Page first hand. Moreover, that once the affidavit {in reply} was filed, no other affidavit could be received in evidence without leave of Court. The Applicant observed that the 4 th Respondent neither sought nor obtained leave of Court to file its supplementary affidavits in opposition and skeleton arguments. Consequently, it was contended that the said documents were irregularly before Court and ought to be expunged, with costs to the Applicant. I The 4th Respondent opposed the application to have its further affidavits and accompanying skeleton arguments expunged . The oppos11 ion was premised on an Affidavit in Opposition and Skeleton Argurrl nts filed on 7 th February, 2017. In opj sing the application, the 4th Respondent did not attempt to aving filed extra affidavits without leave of Court. Instead, a justific tion was tendered on the proposition that it was not a l mandl ory requirem ent for leave of Court to be obtained before an excess n ~ mber of affidavits could be filed into Court. The propos p on was anchored on the case of Commonwealth Development Corpor ~ion vs. Central African Power Corporation (1968) Z. R 701 , where the Higli Court held that "Affidavits in excess of the number normally submi~Jd under the High Court Rules and Practice may be admitted into evidenc in the discretion of the Judge especially when neither side objects their inclusion. " R4 I Page Given the holding in the Commonwealth Development Corporation, Counsel for the 4 th Respondent beseeched the Court to exercise its discretion to admit the supplementary affidavits and skeleton arguments in question in order to achieve justice. Aside the appeal to the Court to exercise its discretion in favour of its client, Counsel for the 4 th Respondent, in a rather glib manner, attemp ted to introduce evidence in the Skeleton Arguments to show that the Applicant was without clean hands. I will not consider that line of argument as there is nothing in the Affidavit in Opposition to this aB~ lication to sup ports that contention. \ I now f ove to consider the law governing the reception of affidavit evidence in the High Court in cases begun by originating summons. In thi \ regard, I noticed that the Applicant placed significant relianc on the White Book to aid it in identifying the procedure to be ado ted. This compelled me to journey into the erudition of the status f the White Book on High Court practice and procedure. I recalled t~at Section 10 of the High Court Act clearly makes reliance Olll the practice and procedure contained in the White Book a defaul reference in circumstances where our rules are deficient. I Section '0 ( 1) reads as follows: "The Jurl I diction vested in the Court shall, as regards practice and procedur bp exercised in the manner provided by this Act, ... , and in RS I Page d efau lt the reof in substantial conformity with the Supreme Court Prac~ice, 1 9 99 (White Book) of England ... " My Learned brother, Justice Dr Patrick Matibini, SC (as he then was), had occasion to explicate the use of section 10 ( 1) of the High Court Act in the case of Michael Chilufya Sata v. Chanda Chiimba III Zambia Na tional Broadcasting Corporation, Muvi TV Limit ed, Mobi TV International Li mited2 , where he held that "The Rules {of the White Book} (!.re t o be re sorted to, only whe n it is necessary to fill a lacuna or gap irt our own rules of procedure." I am persuaded by this interpretation of section 10 ( 1) of the High Court and adopt it. Given the interpretation of section 10, I thoroughly examined the High ourt Act and attendant Rules, which examination revealed that er~ app eared to be no comprehensive procedure expressly ~h erein. The absence of granular prescription exposes our o lacuna, thereby giving way to the use of the default mech ism afforded by of the White Book. Consequently, I am ed by the Applicant to adopt the procedure articulated in , rule IA of the White Book to the extent that substantial confor ·tylwill r easonably permit. I f the foregoing, it is clear that in the ordinary scheme of In view practice \ in the High Court, where a case is commenced by an originat'I g summons, the affidavit evidence must flow from an affidavit in support to an affidavit 1n opposition, if any, to an R6 I Page affidavit in reply, if any. The affidavit in reply marks the close of reception of affidavit evidence except with the leave of Court. I adopt the principal that the reception of additional affidavit evidence must be preceded by the grant of leave of Court on the back of the case of Nida Properties Limited vs. Omnia Fertilizer Limit ed, Appeal No. 164 of 2 01 3 3 • In that case, the Supreme Court declined to fault the learned trial judge for ignoring the additional and ~ f ther affidavit filed by the plaintiff because no leave was obtained to permit the plaintiff to file the said affidavits. \ Coming\ to the Respondent's contention that the Court has a discretiqn to permit extra affidavits in the interest of justice, I hasten agree that such jurisdiction in fact exists. However, there of Court which exist to facilitate an application by a party who see s to move the court to exercise such jurisdiction. In the Commer ial Court, Rule 10 of Orde r LIII of the High Court Rules facilitate such interlocutory applications. A party c not of its own accord disregard the Rules of Court on the basis jthat the party considers that it is justified in so doing. That, in IltY view, would bring chaos to the Rules of practice and procedure~ s i e know them. R7 I Page For ~e foregoing reasons, I agree that the absence of leave of Court permitting the 4Lh Respondent to file the Further and 2 nd Further Affidavit renders the said Affidavits irregularly before Court. Consequently, the Affidavits in question are expunged from the record. Costs of this application are awarded to the Applicant, to be taxed in defa ult of agreement. Leave to appeal is granted. Dated this 31st day of August, 201 7 Lady Justice B. G . Lungu HIGH COURT R8 I Page