Henry Kamwale v Central Agri Commodities Limited (APPEAL NO. 294 OF 2022) [2023] ZMCA 337 (22 November 2023)

IN THE COURT OF APPE AL OF ZAMBIA APPEAL NO. 294 OF 2022 H OLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: HENRY KAMWALE AND PPELLANT CENTRAL AGRI COMMODITIES LIMITED RESPONDENT CORAM: Chashi, Ngulube and Patel, JJA ON: 15th and 22nd November 2023 For the Appellant: (1) L. M Chi/cu.ta, M essrs L. M Chilcuta Legal Practitioners (2) P. Gwaba, Messrs K eith Mweemba Advocates For the k espondents: S. Lungu, SC, Messrs Shamwana and Company JUDGMENT CHASHI, JA deliver ed the Judgment of the Court. Rules referred to: 1 . The High Court (Amendment) Rules, 2020- Statutory Instrument No. 58 of 2020. 2. The High Court Rules , Chapter 27 of the Laws of Zambia. 3. The Supreme Court Practice (White Book) 1999. 1.0 INTRODUCTION -J2- 1. 1 This appeal 1s against the Ruling of Honourable Mrs Justice K. E Mwenda-Zimba, delivered on 6 th September 2022. 1.2 In the said Ruling, the learned Judge dismissed the Appellant's (who is the defendant in the court below) application for amendment of his defence and counterclaim. 2.0 BACKGROUND 2.1 The Respondent (who is the plaintiff in the court below) , commenced an action by way of Writ of Summons on 14th April 2022, claiming specific performance of an agreement between the Respondent and the Appellant, in respect to the Appellant's separation from the Respondent and damages for breach of contract. 2.2 The Appellant entered appearance and settled his defence and counterclaim on 29 th April 2022. On 5 th May 2022, the Appellant filed into Court, his first amended defence and counterclaim without leave of the court. 2.3 The learned Judge , then set a scheduling conference for -J3- 6 th June 2022, at which it was agreed that trial was to be h eld on 2nd and 3rd August 2022. The Order of the court stated that there would be liberty to apply, until fourteen (14) days before trial. 2.4 On 29 th June 2022, the Appellant applied to join parties as defendants to the matter. None of the parties turned up at the h earing and as a result the matter was struck out. The application was subsequently restored and h eard on 28 th July 2022, and the ruling was delivered on 2 nd August 2022. That is the date on which trial was scheduled to commen ce. As a result, the date was automatically vacated. The learned Judge then ordered that the parties appear the following day for a status conference. 2.5 On 3rd August 2022 , both parties informed the court that they had n ot complied with the Order for directions. The time was extended for the parties to conduct further discovery, file and exchange witness statements and file any supplementary bundles of documents by 12 th August 2 022. Trial was then set for 23rd and 25th August 2022. -J4- 2.6 The learned Judge, as it appears a t page RS line 6 of the Ruling of 6Lh September 2022, stated to the parties that, she was not going to vacate the trial dates which had already been agreed upon. 2 .7 On 16Lh August 2022, seven (7) days before the date of trial, the Appellant made an application to amend his defence and counterclaim. The learned Judge made the following endorsement on the summons. "De nied - No jurisdiction. Order 19 Rule 2 (3) of SI 58 of 2 020 Signed .... 17/8/2022" 2. 8 The learned Judge was of the view that since trial was scheduled in less than fourteen (14) days, she had no juris diction to h ear the a pplication. She premised this on Order 19 / 3 / (3) of The High Court (Amendment) Rules, 2020 1 (S. I 58) . On that basis, she refused to entertain the application. -J S- 2. 9 When the matter came up for trial on 23rd August 2022, the learned Judge was informed that the Appellant had filed an application as well as an appeal to the Court of Appeal. The nature of the application was not disclosed. 2. 10 What followed then, was that, the learned Judge adjourned the matter to enable her have sight of the application and as such, the trial dates were once more vacated. 3.0 APPLICATION IN THE COURT BELOW 3.1 The application in the court b elow was made on 26 th August 2022, seeking an Order for leave to amend the d efen ce. It was made pursuant to Order 18 of The High Court Rules2 (HCR) as r ead with Order 25 / 5 and 20 / 8 / 4 of The Rules of the Supreme Court3 (RSC). 3 .2 According to the attendant affidavit, since filing the defence and counterclaim , the Appellant had since come to r e alize that the Respondent had introduced documents that ordinarily he did not have access to, rendering it important that he be given an opportunity to specifically plead against the said documents. -J6- 3.3 In opposing the application, the Respondent averred that the Respondent's documents do not introduce any new matters or facts which were not already before the court. 4 .0 DECISION OF THE COURT BELOW 4.1 The learned Judge in her introductory remarks 1n her Ruling of 6 th September 2023, stated that, the Ruling discussed among other things, considerations to be taken into account when dealing with an interlocutory application that leads to vacation of agreed dates for trial. That it further discusses the application of Order 19/3/(3) of SI 58. 4.2 In considering the application, the learned Judge had recourse to Order 18 HCR, under which the application was made. She then went on to consider the events in the matter, most of which have been captured in the background we have given. 4. 3 Reference was then made to Order 19 / 3 (3) and ( 4), SI 58 , which the learned Judge relied on in refusing the first application for amendment on 17th August 2022 which provides as follows: -J7- "(3) A party shall not lodge and a Judge shall not consider any interlocutory application fourteen days before commencement of trial (4) Subject to subrule (3), a Judge may, in the Judge's discretion, which decision shall not be subject of an interlocutory appeal, entertain an interlocutory application which with reasonable diligence, could not have been made before the time specified under subrule (3)." (the underlining is ours Jor emp hasis only and we s hall revert to that in due course) 4.4 The learned Judge then went on to make the following finding at page R7: "The present application has been made after the dates for trial were vacated as a result of the defendant's application to adjourn the trial. My reading of Order 19 Rule 3 (3) reveals that it was promulgated to assist the courts with case management and to ensure the litigants prosecute and defend their cases with diligence." 4.5 The learned Judge was of the view that, the application -JS- was not one which was fit to benefit from the discretion given to the Judges under Order 19 / 3 (4), SI 58. That the Appellant h ad not presented sufficient reason for failure to bring the application before the fourteen ( 14) days time limit lapsed. Tha t with reasona ble diligence required under Order 1 9 / 3 / ( 4) , the Appellant could have sought an amendment earlier, despite not having had the documents he claimed he did not have, which documents had n ot b een named. 4. 6 The learned Judge , in view of the af orestated dismissed the a pplication with costs to the Respondent. The learned Judge on an application by the Appellant stayed the proceedings and granted leave to the Appellant to a ppeal to this Court. 5.0 THE APPEAL 5.1 Dissa tisfied with the Ruling, the Appellant has appealed to this Court advan cing seven (7) grounds of appeal, as follows: -J9- (i) The learned High Court Judge erred in law and fac t in h e r Ruling of 6 th September 2022 by going beyond the scope of the nature of the application for leave to amend defence and counterclaim contrary to the principles of n atural justice. (ii) The learned High Court Judge erred in law and fact when she reopened the question of an a pplication being brought 14 days before the trial date in its ruling of 6 th September 2022, when the court was already functus officio on the subject matter, having allowed an a djournment for the defendant to renew the applic ation fo r leave to amend the defence and count erc laim by relying on the provisions of Order 19 rule 3 (4) of S. I No. 58 of 2020 in the renewed application. (iii) The learned High Court Judge erred in law and fact when she held that the application for leave to amend the pleadings has been filed so late in the day, contrary to the provisions of Order 18 -JlO- Rule 1 of the High Court Rules, Chapter 27 of Laws of Zambia and the evidence on record. (iv) The learned High Court Judge erred in law and fact when she held at RlO "the documents in the supplementary bundle of documents which was filed in court and only served on Appellant's advocates, after the date for compliance with the order for directions, was not relevant in advising how a pleading may sit on record on the ground that a supplementary bundle of documents is not a pleading and that pleadings respond to pleadings and that a bundle of documents only contains documents relied upon by a party's witness and that the same are not meant to detect what should be in the pleadings" contrary to settled law. (v) The learned High Court Judge further erred both in law and fact when it held at Rl 1 that "witness statements are supposed to be exchanged to avoid parties gaining advantage by structuring their evidence to answer to the other party's -Jll- evidence aft e r s eeing t he witness statement for the other side" contrary to trite principle of law against trial by ambush. (vi) The learned High Court Judge erred in law and fact when she distinguished the case of Celtic Freight (Z) Limited v Kashy International Limited Appeal No. 87 /2020 in preference to S. I No. 58 of 2020 (which she stated was enacted much later than the said case) even when she was already functus officio on the question of jurisdiction. (vii) The learned High Court Judge erred in law and fact when she made comments on the main matter at page R12 and stated the issues involved in the matter are not complicated and in the process pre-empted the matter on the matters to be determined on the merits. 5.2 We will not recapitula te th e h eads of argum ent for the obvious r eason th a t we d o n ot intend to deal with th e a ppeal on its m erits , but on a juris dictional at issue. The -Jl2- Appellant filed its h eads of argument on 13 th Decemb er 2022. 6.0 ARGUMENTS IN OPPOSITION 6 .1 The Respondent filed its heads of argument on 20th February 2 023. Our attention was drawn once again to Order 1 9 / 3 ( 4) SI 58, in particular our earlier underlined words "which decision s hall not be subject of an interlocutory appeal)) and submitted that, wh en the court exercises its discretion, the decision made by the court cannot be appealed. 6.2 It was submitted that the appeal is contrary to the provisions of the law, as the law which the learned Judge relied on does not allow for appeal. We were on that basis urged to dismiss the appeal . 7.0 CONSIDERATION AND DECISION 7 . 1 As earlier alluded to, we will deal with the jurisdiction issue, whose outcome will decide the fate of the appeal. We are of the view that this is an a ppropriate case for us to deal with the issue of whether the appeal is -Jl3 - competently before us, rather than deal with the merits of the appeal. 7 . 2 Indeed in dismissing the application to amend the defence and counterclaim, the learned Judge applied the provisions under Order 19/3(3) and (4) , SI 58 . Although the learned Judge granted the Appellant leave to appeal, we note and we are of the view that Order 19 / 3 ( 4) proscribes an interlocutory appeal on the decision of the Judge. We are therefore surprised that the learned Judge granted the Appellant leave to appeal to this Court. In that respect, this a ppeal is incompetently before u s and should accordingly be dismissed and remitted back to the same Judge for trial. 7.3 Despite the aforestated, in view of the learned Judge's introductory remarks on the application of Order 19 / 3 (3) and (4) , SI 58, we n eed to briefly give guidance on the application of this provision. 7.4 Prior to the enactment of SI 58, it was identified that one of t h e main delays in disposing of m a tters in our courts was attributed to amendment of pleadings under Order 18 HCR and Order 20 RSC, which could be made at any -J14- stage of the proceedings . This resulted in delays. In order to cure this mischief, Order 19 / 3 (3), (SI) 58 now provides a cap on the making of interlocutory applications. 7. 5 According to Order 19 / 3 (3) , a party should not lodge and a Judge should not consider any interlocutory application which is made fourteen ( 14) days before commencement of trial. However subrule (4) grants the Judge discretion to entertain an interlocutory application made fourteen (14) days before commencement of trial, if with reasonable diligence the application could not have been made before the fourteen (14) days time limit. 7. 6 What tha t entails is that, a Judge should not refuse to entertain an application simply because it has been made within the proscribed time, as was done earlier by the learned Judge when she made the endorsement on 17th August 2022. The Judge ought to hear the application and be satisfied that the application with reasonable diligence , could not have been made before the time specified , b efore entertaining or refusing the relief(s) s ought. -JlS- 7 . 7 Lastly as earlier alluded to, the decision made is not to be subjected to an interlocutory appeal. 8.0 CONCLUSION 8.1 As the appeal is incompetently before us, we accordingly dismiss the same with costs to the Respondent. Same are to b e paid forthwith and are to be taxed in default of agreement. J . CH HI COURT OF APPEAL JUDGE ~ P. C. M. NGULUBE COURT OF APPEAL JUDGE A. N. PATEL, SC COURT OF APPEAL JUDGE