Ian Murphy v Zambia Tourism Agency and Anor (CAZ APPEAL No. 035/2020) [2022] ZMCA 215 (31 May 2022)

IN THE COURT OF APPEAL OF ZAMBIA CAZ APPEAL No. 035/2020 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: IAN MURPHY AND APPELLANT ZAMBIA TOURISM AGENCY RESPONDENT NEW HORIZON PRINTING PRESS LIMITED THIRD PARTY CORAM: KONDOLO SC, CHISHIMBA AND NGULUBE, JJA 25th August, 2021 and 31 st May, 2022. For the Appellant : Mr. B. Mosho and Ms. Sitali of Messrs Mosho & Co. For the Respondent :~ Mr. Ndalameta of Messrs Musa Dudhia & Co. JUDGMENT KONDOLO SC JA delivered the Judgment of the Court. CASES REFERRED TO: 1. Re Daintrey Ex Parte Holt [1893] Q. B. 116 2. Shropshire District Council v Amos [1986] 1 WLR at page 3 3. Avonwick Holdings Limited v Webinvest Limited [2014] WLR (D) 4. Bradford & Bingley PLC v Rashid [2006] UKHL 37 5. Charles Kajimanga (Hon. Judge) v Martemus Chilemya - SCZ/50/2014 6. Beck v Value Capital Limited [1976] 2 All ER 113 7. Bellenden (formerly Satterthwaite) v Satterthwaite [1948) 1 All ER J 2 of 20 OTHER WORKS REFERRED TO: 1. A Practical Approach to Civil Procedure" [10th Edition] Oxford University Press 1. INTRODUCTION 1. 1. This Appeal is against the Ruling of Nkonde J in which he expunged documents from the Plaintiff's bundle of documents owing to the fact that the same were privileged. 1.2. The Plaintiff (Appellant) commenced an action against the Defendant (Respondent) for infringement of copyright relating to photographs taken by him at his own expense. As required by law, the Plaintiff filed witness statements and in contention was the witness statement made by Ruth S Mwenya. In her averments, she made reference to numerous documentation that emanated from settlement negotiations meetings held between the Zambia Reprographic Rights Society (ZARRSO), a copyright management organisation and the Parties. J 3 of 20 1. 3. During the course of proceedings in the High Court, the Defendant objected to the use of the above mentioned documents by the Plaintiff and requested the Court to expunge them from the record because they were privileged. 2. PROCEEDINGS IN THE HIGH COURT 2.1. According to the Respondent, the parties met on numerous occasions for the purpose of reaching a compromise and the Appellant then sought to use those discussions and resultant documents against the Respondent. The Respondent cited various authorities pointing to the fact that the statements and offers were made during the course of negotiations for settlement 2.2. The Appellant, on the other hand, argued that the documents in question were not marked "without prejudice" and the Respondent had not objected to their production during discovery. That the objection was only raised at the 11 th hour. It was further argued that the documents should not have been expunged because the Respondent had not denied liability and the only issue outstanding between the parties was to agree on the quantum. J 4 of 20 3. HIGH COURT DECISION 3. 1. After considering the evidence, the trial Judge referred to paragraphs 5 & 6 of the Plaintiff's Witness Statement and said it was clear that there was a dispute between the parties. 3.2. The Court further stated that the witness statement referred to meetings whose minutes and correspondence were found at pages 6 to 97 of the Plaintiffs Bundle of Documents. 3.3. At the end of it all, the Judge stated that he had perused the documents in question and found that they "emanated from a dispute between the parties" and he ordered that they be expunged for being "without prejudice". 4. THE APPEAL 4.1. Dissatisfied with the lower Court's Ruling, the Appellant has appealed on 4 grounds, namely; 1. The Honourable Court below erred in both law and fact when it ordered that the documents from page 6 to 97 be expunged from the Plaintiff's Bundle of Documents on account of being privileged without examining the said documents as to their nature since such claim of privilege J 5 of 20 had been challenged and for reason that had the Court examined the disputed documents accordingly it would have not held them to be privi.leged; 2. The Honourable Court below erred in both law and fact when, as opposed to examining the documents from page 6 to 97 of the Plaintiffs Bundle of Documents to determine whether they were privileged, it instead examined two[2] paragraphs from the Witness Statement of one Ruth S. Mwenya in reaching the conclusion that the disputed documents from the Bundle of Documents were privileged; 3. The Honourable Court below erred in both law and fact when at the 11 th hour it entertained and subsequently granted the Respondent's application to expunge the disputed documents in the Plaintiffs Bundle of Documents notwithstanding that the said Respondent did not object to the production of the documents during J 6 of 20 discovery; nor did it object to the admission of the documents as part of the Plaintiffs evidence; nor did object to the Plaintiffs reference to the documents when he gave his testimony; 4. The Honourable Court below erred in both law and fact when it failed to apply the principle expounded in Bradford & Bingley PLC v Rashid as cited page R9 of the Ruling appealed against to the effect that in determining without prejudice communications, "there ought to be a real dispute capable of settlement in the sense of compromise rather than in the sense of simple payment of satisfaction' whereas the latter was the position in the case in casu, as liability was admitted by Respondentfrom the onset of the communications in question and the parties were merely engaged in negotiations as to the quantum of settlement. 5. APPELLANTS ARGUMENTS 5.1. Grounds 1,2 & 4 were argued together. In the first limb of the argument, the Appellant cited the case of Re Daintrey Ex Parte J 7 of 20 Holt (1l as referred to by the trial judge, where it basically stated that the "without prejudice" rule only applies where parties were in a dispute and terms are offered to settle it but, in order to do that, the trial court must necessarily be entitled to look at the document in question in order to determine whether the conditions for applying the 'without prejudice' rule applies. 5.2. The argument further emphasised the point by citing the case of Shropshire District Council v Amos !2l where it was said as follows; "If privilege is claimed, but challenged, the Court has to examine the document in question and determine its nature." 5.3. It was argued that the trial Judge neglected its responsibility to examine the disputed documents and its failure to do so was fatal to its decision to exclude the documents. 5.4. The second limb of the argument under these grounds was that the "without prejudice" rule does not apply where the only issue relates to the terms of settlement but there is no dispute on the question of liability. The case of Avonwick Holdings Limited v J 8 of 20 Webinvest Limited (3l was cited in this regard, as was the case of Bradford & Bingley PLC v Rashid (4l. 5.5. It was argued that a simple perusal of the disputed documents showed that the only dispute was with regard to the quantum and not the claim itself and it was only by looking at the documents that a court could satisfy itself as to whether or not to apply the without prejudice rule. 5.6. The Appellant submitted as follows and we quote; "For instance, at page 14, Clause 5[5] of the Plaintiffs Bundle of Documents [which is among the documents expunged] there is a clear statement to the effect that, "ZTB agreed that they had made some use of Mr. Murphy's works that they needed to compensate him for. They were willing to do so amicably however they opined that Mr. Murphy's claim for compensation ...... was exorbitant and not consistent with the prevailing market prices." 5.7. Under ground three on the fact that that the Respondent had not objected to the presence of the disputed documents in the J 9 of 20 Plaintiff's Bundle of Documents, the Appellant cited the book, A Practical Approach to Civil Procedure" [10th Edition] Oxford University Press as fallows; "Where parties agree on the bundles of documents to be used at any hearing . . . . . . all the documents in the agreed bundles are admissible as evidence of their contents unless the Court otherwise orders" Also cited was the case of Charles Kajimanga (Hon. Judge) v Martemus Chilemya (5), where the Supreme Court said as follows; "the above elaborate procedure of discovery and inspection of documents allows parties to know in advance which documents are with the opponent and to raise objections if necessary." 5.8. The Appellant submitted that the lower court should not have entertained the Respondent's objection because it was an ambush which came in the 11 th hour. 5.9. At the hearing Mr. Mosha on behalf of the Appellant submitted that the trial Judge's decision was made on the basis of a witness statement in which the word 'dispute' was used without J 10 of 20 examining the disputed documents. 6. RESPONDENT'S ARGUMENTS 6.1. On account of the position we have taken in this case we shall provide only a very brief summary of the Respondent's arguments. 6.2. With regard to the argument that the trial Judge did not examine the disputed documents, the Respondent referred us to the lower Court's Ruling at page 19 of the record of appeal, (Rl0, lines 8-14) where the trial Judge stated as follows; "Further perusal of the witness statement reveals that meetings were subsequently held, and correspondence exchanged. I must mention that it is the minutes of the said meetings as well as the resultant correspondence that the Defendant now wishes to have struck out of the plaintiffs bundle of documents for being 'without prejudice'. The said documents are found on pages 6 to 97 of the Plaintiffs bundle of documents. J 11 of 20 Having perused the documents in question, I .find that the same are without prejudice owing to the fact that they emanated from a dispute which the parties were trying to resolve." 6.3. The Respondent then turned to the second limb and argued that there is no merit in the Appellant's argument because the trial Court, at page 19 of the record of appeal, held that there was a genuine dispute between the parties. That when read in its entirety, the case cited by the Appellant (under a different citation) Shropshire District Council v Amos (supra), Parker W explained as follows; «First it shows that the rule depends partly on public policy, namely the need to facilitate compromise, and partly on implied agreement. Second, it shows that the rule covers not only documents which constitute offers but also documents which form part of discussions on offers i.e., negotiations." 6.4. Further, the Judge exercised his discretion when he decided that the documents should be expunged and as such, his J 12 of 20 decision could only be upset if he was wrong in principle and not because this Court merely felt that it would have exercised its discretion differently. That the trial Judge had not erred in principle and the case of Beck v Value Capital Limited (6l was cited on this point. 6.5. On the third limb and in response to the Kajimanga Case (supra) cited by the Appellant, the Respondent distinguished it from the matter before us in that the Court held that "an objection cannot be validly made after trial of the matter has closed" but had earlier stated that "further) the fact that the parties have deliberately ignored taking certain steps set out in the order for directions) does not take away a party's right to object to certain documents that are included in the bundle of documents." 6.6. That, in casu, the objection was raised timeously before close of the trial and there was, in any event, no agreed bundle of documents, but each party had filed its own bundle. 6.7. In response to ground 4, the Respondent submitted that firstly the trial Judge correctly exercised his discretion, secondly, according to the South Shropshire Case (supra) the "without J 13 of 20 prejudice" rule covers even mere negotiations aimed at resolving matters between parties. That the trial Judge's Ruling was in conformity with the case of Bradford & Bingley PLC v Rashid (supra) cited by the Appellant because the "without prejudice" rule simply applies to any genuine attempt at settlement such as zn casu. 6.8. At the hearing, Mr. Ndalameta, on behalf of the Respondents, submitted that the Appellant had not shown how examining the documents will lead to the appeal succeeding. That, in any event, the record of appeal was defective because the subject documents were missing from it as was the bundle of documents referred to, the Writ of Summons and the Statement of Claim. That the Appeal must fail for these reasons alone. 7. APPELLANT'S ARGUMENTS IN REPLY 7.1. In rejoinder, Mr. Mosha submitted that the issue of liability was not irrelevant. He pointed out that the authorities cited were to the effect that admissions made during the course discussions which were restricted to quantum and mode of payment were admissible. That questions of quantum were issues for assessment. J 14 of 20 7.2. Mrs. Sitali, also on behalf of the Appellant, submitted in reply and reiterated that once liability was admitted, the documents were admissible because the issues of mode of payment and quantum were matters for assessment. 7.3. With regard to the missing documents, she submitted that it was not for this court to examine the disputed document but only to determine whether the trial Judge erred by not examining, with particular consideration, the fact that he relied on the use of the word "dispute" contained in the witness statement of a lay person and bearing in mind that the legal context of "dispute" has its own meaning when it comes to 'without prejudice' documents or discussion. 8. DECISION OF THIS COURT 8.1. We have considered the record of appeal, the heads of arguments filed by the parties and we thank them for their viva voce submissions. We shall consider all four grounds of appeal as one. 8.2. In the case of Hope Bwalya v Blu Lifestyle CAZ/52/2018 this Court said as follows; J 15 of 20 "We refer to the provisions of Order 24/5/45 of the White Book which states that the 'without prejudice rule' governs the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish. The rule excludes all negotiations genuinely aimed at a settlement, whether oral or in writing, from being given in evidence. The Order further states as follows: 'The purpose of the rule is to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement. "Without prejudice" material will be admissible if the issue is whether or not negotiations resulted in an agreed settlement ... but in relation to any other issue an admission made in order to achieve a compromise should not be held against the maker of the admission or received in evidence ... but the general public policy that applies to protect genuine negotiations from being admissible in evidence is J 16 of 20 also extended by the Courts to protect those negotiations from being discoverable to third parties ... Any discussions between the parties for the purpose of resolving the dispute between them are not admissible, even if the words "without prejudice" or their equivalent are not expressly used .... It follows that documents containing such material are themselves privileged from production.' 8.3. The power of a judge to exclude a document under the without prejudice rule is discretionary. An appellate court can only interfere with the discretion exercised by a lower court where the judge misdirected himself in law, took into account irrelevant matters or failed to take into account relevant matters. 8.4. It therefore follows that this Court can only interfere with Nkonde J's decision to exclude the disputed documents if we find that his decision was wanting in the manner described in the preceding paragraph. In the case of Bellenden (formerly Satterthwaite) v Satterthwaite(7 ) , Asquith LJ said as follows; J 17 of 20 "We are here concerned with judicial discretion, and it is of the essence of such discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact plainly wrong, that an appellate body is entitled to interfere." 8.5. The gravamen of the Appellant's submissions is that the trial Judge erred because he decided to exclude documents which he did not actually examine. He challenged the trial Court's decision to exclude the documents purely on the strength of a witness statement which made reference to a dispute. 8.6. The Respondent on the other hand referred us to page 19 of the record of appeal, RlO, lines 8-14, which we repeat for the sake of convenience and where the trial Judge stated as follows; "Further perusal of the witness statement reveals that meetings were subsequently held, and correspondence exchanged. I must mention that it J 18 of 20 is the minutes of the said meetings as well as the resultant correspondence that the Defendant now wishes to have struck out of the plaintiffs bundle o.f documents for being 'without prejudice'. The said documents are found on pages 6 to 97 of the Plaintiffs bundle of documents. Having perused the documents in question, I find that the same are without prejudice owing to the fact that they emanated from a dispute which the parties were trying to resolve." (our emphasis) 8.7. The trial Judge not only stated that he had perused the documents but also described them and went further by indicating where they were located in the Plaintiff's bundle of documents. Therefore, the Appellant's argument that the trial Judge did not examine the disputed documents is misplaced. 8.8. As pointed out by Mr. Ndalameta, the documents referred to by the Appellant are not exhibited anywhere in the record of appeal and we agree that we can place no consideration on such documents. J 19 of 20 8. 9. Ms. Sitali's argued that the documents are unnecessary because it was the duty of this court, in this instance, to only determine the effect of the trial Judge having omitted to examine the said documents. Sadly, in view of our finding that the trial Judge did in fact examine the documents, this argument falls flat on its face. 8.10. The Appellant is asking this Court to interfere with the discretion of the lower Court when it decided to expunge the disputed documents. The only circumstances under which we can do so is by examining the said documents and determining from their contents whether, in so doing, the trial Judge misdirected himself in law, took into account irrelevant matters or failed to take into account relevant matters or in short, that his decision was plainly wrong. 9. CONCLUSION 9 .1. The failure by the Appellant to produce the disputed documents in the record of appeal is fatal to this appeal as we are in no position to fault the trial Judge for expunging the said documents. 9.2. This appeal fails with costs to the Respondent to be taxed in default of agreement .. J 20 of 20 M. M. KONDOLO SC COURT OF APPEAL JUDGE F . M. CHISHIMBA COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE ····-~ ·-··········