Chimanga Changa Limited v Chewe (Appeal No. 220 of 2021) [2023] ZMCA 243 (10 October 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 220 of 2021 BETWEEN: AND JOSEPH CHEWE Appellant Respondent Coram: Mchenga DJP, Banda-Bobo On 19 September 2023 and 10 October 2023 and Sharpe-Phiri, JJA For the Appellant: For the Respondent: Mr. J. Madaika of Messrs J & M Advocates Mr. K. Bota & Mrs S. M. Kalikeka Nyirenda & Company of Messrs William JUDGMENT SHARPE-PHIRI, JA, delivered the Judgment of the Court to: Legislation referred 1. Rules of the Supreme Court of England, 2. The High Court Rules Chapter 1999 Edition 27 of the Laws of Zambia (White Book) Cases referred to: 1. Attorney (1995) S. J (S. CJ General v Aboubacar Tall and Zambia Airways Corporation Limited 2. Bwalya and Attorney General and another v Mwanamuto Investments Limited (Appeal 41 of2008) [2012} ZMSC 16 (16 February 3. Zambia Seed Company Limited v West Co-op Haulage and Western 2012) Limited Province Co-operative Union SCZ/ 8/ 114/ 2013 4. Bio Construct GMBH v Winspear Limited and another (2002) WHC QBl J1 C I • 1.0 INTRODUCTION 1.1 This is an appeal against a ruling of Chanda, J delivered in the Kitwe High Court on the 8th of June 2021 in relation to an application to amend originating process. 1.2 The Appellant was the Plaintiff and the Respondent, the Defendant to as in the Court below. In this appeal, the parties will be referred Appellant and Respondent respectively. 2.0 BACKGROUND OF THE CASE 2 .1 The history of the matter is that Chimanga Changa, the Appellant herein commenced an action in the High Court in 2016 by way of writ of summons and statement of claim in 2016. The Appellant filed an amended writ of summons and statement of claim on 21 February 2017. By the amended writ of summons, the Appellant sought payment of the sum of K16,755,592.11 being in respect of monies owing by the Respondent to the Appellant pursuant to agreements between them of 12 December 2016, 24 March 2009 and 1 June 2012. 2.2 The Respondent filed his defence and counterclaim. Orders for directions were issued on 9 May 201 7 providing to the directions parties regarding the pleadings and settling of the trial date for 12 October 2017. The Reply to the defence and Defence to the counterclaim was filed on 14 June 2017. J2 ' f 2.3 Due to various interlocutory applications, the trial of the matter was rescheduled for hearing of trial on various dates namely: 20 February 2018; 3 May 2018; 28 February 2019; 10 May 2019; 21 March 2019 and 16 September 2019. On 23 September 2019, an application to amend the defence and counterclaim was brought which application was granted by consent of the parties. The trial of the matter was set down for hearing on 2 December 2019 but was repeatedly rescheduled to 4 December 2019, 20 March 2020; 31 March 2020; 5 August 2020; 3 September 2020; 10 November 2020 respectively. 2.4 The trial finally commenced on 11 November 2020. The Appellant's counsel Mr. Mazumba notified the Court that the Appellant would only be calling one witness in support of their case. PWl Amilananbam Ramesh, the Accountant and Chief Executive Officer of the Appellant was called and testified in support of the Appellant's claim. He was cross-examined and re-examined and concluded his testimony on the same day. The Appellant's counsel was to close the case but sought an adjournment to address one item with the business administrator. The matter was rescheduled to 18-19 January 2021 for continued trial. 2.5 The case could not continue on the 18th of January 2021 due to a covid exposure by the Respondent's counsel. The matter was adjourned to 17 February 2021. On the said date, the matter could not be heard on account of the Respondent's counsel. The trial was rescheduled to 28-30 June 2021. J3 I f 2.6 Before the trial could proceed further, the Appellant's counsel filed an application to amend the originating process on 7 April 2021. 3.0 APPLICATION TO AMEND ORIGINATING PROCESS 3.1 In support of the summons to amend process, the Appellant filed an affidavit deposed to by one Mando Mwitumwa, the Business Rescue Administrator of the Appellant. His evidence was that the Mine Workers Union had elected new leadership and that the current Secretary General is one George Mumba and there was need to amend the originating process to reflect the current Secretary General. The administrator also stated that there was a need to reflect the true figu res owing between the parties given that the Respondent had made some payments to the Appellant. 3.2 The deponent further contended that the originating process in the Court below was not elaborate and did not disclose in sufficient details the full facts relating to the claim. As such, there was a need to clarify and elaborate are the claim so that the issues in dispute clear and unambigu ous. 3.3 It was also submitted that although the trial in the matter had already commenced, only one witness had testified on behalf of the Appellant. It further stated that it was permissible and beneficial to all parties to amend the process to streamline the issues in contention and avoid lengthy argu ments about inconsequential matters. J4 I f 3.4 The deponent further submitted that the amendments were necessary to ensure that the pleadings present facts that are accurate as at present. He submitted that it was inappropriate to lead the Court into continued trial based on facts that have changed. He added that it was their duty to appraise the Court of any changes in circumstances. 3.5 It was further submitted that this was a proper case to allow an amendment of the process and that the Respondent would not be prejudiced The in any way by the proposed amendment. Respondent would also have an opportunity to amend its defence. It was also argued that the interest of Justice would be served if the amendment was allowed. 3. 6 The Respondent opposed the application by filing an affidavit in opposition dated 30 April 2021 sworn by one Joseph Chewe, the President of the Mine Workers Union of Zambia. The first question raised by the deponent is that if the Appellant was under business rescue, the Court ought to have been notified. It was also submitted that the Appellant had made one amendment previously and ought not to be permitted to amend process when a response is made. 3.7 It was submitted by the deponent that he was the substantive Secretary General when the action in the High Court was commenced but is now the President of the Union. As President, he had no objection with the proceedings running as they are. JS ' ' 3.8 Regarding the repayments made by the Respondent, the deponent stated that the payments had been made some time back and the witness on oath had correctly reflected this, so there was no need to effect amendment on this account. The deponent added that the Appellant was well aware of all the above averments earlier as they are ably represented by counsel. 3.9 It was further contended that as this 1s a 2016 matter, parties should not be allowed to delay the matter further. That the amendment at this stage is prejudicial to the interests of the parties, particularly that the Appellant is attempting to ride on the issues that arose during cross-examination to the Respondent's detriment. 3.10 It was further submitted by the deponent that by the proposed amendment, the Appellant is attempting to re-commence a fresh process based on the issues that arose in cross-examination. The deponent stated that all the purported facts were before in existence the commencement of the action, so there is no basis for amendments to be made at this stage. 3.11 The deponent stated that he had perused the proposed statement of claim and that the amendment represents 95% of the original statement of claim as having been changed. this That therefore would be a new case altogether and would seriously prejudice the Respondent especially in terms of time and resources to respond to the same; as well as legal fees paid for the work undertaken and yet to be done. J6 o I 3.12 It was further submitted that the proposed amendment come very late in the day and intends to completely amend the entire statement of claim, which is costly and prejudicial to the Respondent and should be denied. 3.13 The Appellant filed an affidavit in reply on 1 June 2021 sworn by the said Business Rescue Administrator. His evidence was that the Appellant company had only been placed under business rescue in late 2019 and the said decision had been the subject of Court proceedings. 3.14 The deponent added that the fact that the Appellant had already is not in itself amended its originating process a bar to subsequent amendments. It was also added that a Union is sued and sues in the name of its Secretary General and not it's President. 3.15 It was further submitted that the payments made by the Respondent have never been accounted for by way of adjustment of the claim which was necessary for the adjudicative That process. the parties ought not to continue with claims which are already settled. Further, that it is the duty of counsel to assist the Court streamline and simplify issues so that the Court's role is not unnecessarily complicated by convoluted facts. 3.16 It was also stated that the matter had been pending since 2016 and the delay in disposal of the matter was on account of the very many adjournments occasioned by both parties and not purely the Appellant. It was further argued that it would be unfair to deny the J7 Appellant the application solely on the basis that the matter has been pending for long because the time taken to dispose of the matter cannot be attributed purely to the Appellant. 3.17 The Appellant submitted further that the application for an amendment is not unduly late as portrayed by the Respondent. It was submitted that only one witness had testified in the High Court so far and the Appellant was yet to call its second witness and the Respondent is yet to call all its witnesses. Therefore, that the Respondent would have sufficient opportunity to address the issues contained in the proposed amendments, through cross-examination of the Appellant's witnesses or through its own. 3.18 It was submitted that the proposed amendments do not introduce a fresh claim because the reliefs sought speak to the same claim but the figu res have significantly reduced. The further contention is that the original statement of claim was too brief and not sufficiently elaborate and the Appellant has simply provided clarification of the claim. 3.19 The deponent further stated that the Respondent has failed to indicate what prejudice it will suffer outside costs. It was submitted that this is a proper case to grant an order for the amendment of the originating process. J8 4.0 DECISION OF THE TRIAL JUDGE 4.1 After considering the application, the proposed amendments sought, the evidence of the parties and the arguments by their respective counsel, the learned trial Judge observed that the Appellant sought to amend process because after commencement of the action, there has been some changes in the office and bearers to reflect the outstanding balance after payments made by the Defendant (Respondent). 4.2 The Judge held that since the amendment takes effect from the date of original issue of process, the name of the person that the Plaintiff (Appellant) wished to substitute did not have the capacity in which he is being sued in 2016. The Judge also found that the amount sought to be claimed now was not the amount that was outstanding in 2016 and therefore the amendments sought to be made to the writ of summons were not tenable as they do not seek to clarify anything that remained unclear in 2016. 4.3 Turning to the nature of the proposed amendments to be made to the statement of claim, the Judge was of the view that the proposed amendments, save for the first two paragraphs, seek to render redundant the rest of the averments and substitute them completely with new averments. The Judge held that, "although the proposed amendments talk about the nature of transaction and how it operated in minute detail, the Plaintiff seeks to recast this case in its entirety as pleaded as it introduces about 34 new paragraphs from the original eight (8) and spans seven (7) pages. And this is more so being J9 proposed when the Plaintiff's only witness has already testified and cross-examined . The new averments proposed in the to be introduced statement of claim, also speak to the issues that were canvassed in cross-examination of the Plaintiff's only witness". 4.4 The Judge went on to hold that the Plaintiffs (Appellant's) true intent in the application is to recast its case as its current pleadings are insufficient and the change of office bearers and payments made were only a smokes screen. The Court made this finding after closely reviewing the evidence of the Plaintiff (Appellant) in paragraph 6 of the affidavit in support wherein it stated that "the originating process as currently sits on the Court record is not elaborate and does not disclose in sufficient detail the.full/acts relating to the claim". The trial Judge also made reference to paragraph 1 7 and 18 of the affidavit in reply wherein the Plaintiff (Appellant) echoes the need to clarify its earlier claim. 4.5 The trial Judge also found that the Plaintiff (Appellant) had failed to indicate to the Court when it had become aware of the information it now wishes to include in the statement of claim and the reason for seeking the amendment late. The Judge held that this failure was fatal to the application as it denied the Court of the opportunity to assess whether or not the Plaintiff (Appellant) was an indolent litigant lacking due diligence and business acumen to who no equity should come to its aid. No reasons having been advanced, the trial Judge held that the Plaintiff (Appellant) had been indolent in this regard. JlO 4.6 Regarding the timeframe of the filing of the application, the Judge held that lateness in making the application is not only tied to time but stage of the proceedings. The Judge held that there had been an unexplained delay in making the application at the stage it had been made and it mattered not whether the Defendant (Respondent) had not yet called its witnesses. 4.7 The Judge also pointed out that the Plaintiff had not (Appellant) considered the resulting consequences of granting the application at this stage, which included losing out on the two to three days reserved for the trial and re-opening the pleadings with the Defendant being granted leave to amend its defence. 4.8 The Judge therefore held that, "this is a classic case of where an amendment should be refused on account of prejudice that may be occasioned to the Defendant (Respondent) beyond an atonement of a costs order. This is more so because, even the evidence so far on record will equally collapse as it would then not be based on the case as initially pleaded but will now be based on the proposed amendment. It is such resultant effect that it can reasonably be contended that the amendments sought are not in good faith especially that they talk about most of the issues arising from the cross-examination which if allowed would amount to an abuse of the Court process. This is so when viewed from a tactical advantage that the Plaintiff (Appellant) wishes to gain after having a trial run of the evidence it has in this matter". 4.9 The trial Judge added that case management is now Judge-driven, and therefore now the Court drives the process. In considering J11 . . prejudices, "the prejudice occasioned in the administration of justice is equally of paramount importance. This is because the scarce judicial resources ought to be proportionately shared among all the users of judicial services and no case shall be accorded more time at the expense of other deserving cases". 4.10 The Judge proceeded to state that the case was a backlog case which had already been accorded sufficient judicial time to be concluded and therefore the late application to seek an amendment to the writ of summons would be prejudicial to the administration of justice. 4.11 The Judge further stated that being cognizant of the function of pleadings, it cannot be said that such massive proposed amendments of recasting the Plaintiffs (Appellant's) case would not be prejudicial to the Defendant's (Respondent's) case and to the administration of justice beyond a costs order. The Judge held that "the prejudicial effects of allowing the amendments outweighs the justice of the case it seeks to attain". The Judge accordingly declined the application for leave to amend its originating process and ordered the Plaintiff (Appellant) to bear the costs of the application. 5.0 THE APPEAL 5.1 Being dissatisfied with the Ruling of the trial Judge, the Appellant brought this appeal before us by Notice of Appeal and Memorandum of Appeal on 16 June 2021 advancing six (6) grounds of appeal as follows: J12 . ' (i) The learned trial Judge erred in law and fact when he at page R13 of his Ruling, in applying the provisions of Order 28/8/2 RSC to the case before him, misdirected himself when he arrived at the conclusion that the amendments sought to be made 'do not seek to correct any error or to clarify anything that remained unclear in 2016.' (ii) The learned trial Judge erred in law and fact in refusing to grant the amendments on the basis that the clarifications sought to be introduced by the Plaintiff span seven (7) pages and therefore amount to a new claim, despite having already stated in the said Ruling at R 13 that the proposed amendments "talk about the nature of the transaction and how it operated in minute detail". (iii) The learned trial Judge erred in law and fact in refusing to grant the amendments on the basis that the proposed amendments speak to issues that were canvassed in cross-examination of the Plaintiff's witness. (iv) The learned trial Judge erred in law and fact when he refused to grant the proposed amendments on the basis that the application had come.'late, without taking into account the fact that so Jar, only one witness has testified in the matter, which cannot to be be considered irretrievably late in terms of the stage of the proceedings. J13 ' . (v) The learned trial Judge erred in law and fact when he overlooked the greater consideration of the justice of the case and instead magnified, augmented, amplified and relied on much lesser considerations, including the fact that the parties would lose out on three (3) days already reserved for trial, which said consideration do not supersede the greater interest of justice. (vi) The learned trial Judge erred in law and fact when he held that proposed amendments would cause the Defendant prejudice beyond costs when no such prejudice was revealed by the Defendant in its · affidavit in opposition and when in fact, the Defendant mainly sought for costs to be imposed on the Plaintiff forthwith if the amendment was allowed. 6.0 ARGUMENTS IN THE APPEAL 6.1 The Appellant filed its heads of argument on 17 September and the Respondent on 21 October 2021. These arguments have been duly considered, and although not being recast here, will be referred to where necessary. 7 .0 DECISION OF THIS COURT 7 .1 We have carefully reviewed the evidence on record, the Ruling sought to be impugned and the arguments of the respective parties. The six (6) grounds of appeal have been recast in paragraph 5.1 J14 ' ; above. Ground 1, 4, 5 and 6 will be addressed individually and grounds 2 and 3 together as they are related. 7.2 In the first ground of appeal, the Appellant maintains that the lower Court fell into grave error at paragraph 27 of page R13 by holding that the proposed amendments sought did not seek to correct any error or to clarify anything. The holding of the lower Court under scrutiny is at page 21 of the ROA, Volume 1, paragraph 27 and reads as follows: 'Since an amendment takes effect from the date of original issue of process, it follows that the name of the person the plaintiff wished to substitute, did not have the capacity in which he is being sued in 2016 and the amount sought to be claimed now was not the amount that was outstanding in 2016. To that extent, the amendments sought to be made to the writ of summons, are not tenable as they do not seek to correct any error or to clarify anything that remained unclear in 2016.' 7.3 The Appellant's contention is that this holding was a contradiction as the trial Judge had observed that the office bearers in the Respondent had changed and that there were payments made by the Respondent after the matter had commenced. It was therefore argued that contrary to the trial Court's opinion, the amendments sought to be made did in fact seek to correct errors and clarify uncertain facts. JlS 7.4 In response, the Respondent indicated that there had been a change in the figures and the capacity of the persons being sued after commencement of the proceedings, but that there was no error or anything unclear as of 2016 as claimed. Further, that the proposed amendments did not seek to clarify any uncertainty at that time as the capacity of the parties and figu res only changed after the action had been instituted. Also, that the person that the Appellant intended to substitute for the Respondent was not the Secretary General at the time of institution had no of the suit, and therefore capacity to be sued as such at the time. 7 .5 The parties have cited the provisions of Order 20 Rule 8 subrule of the Rules of the Supreme Court1 on the effect of amendments. The said Order provides that: 'An amendment duly made, with or without leave, takes effect, not from the date when the amendment is made, but from the date of the original document which it amends; and this rule applies to every successive amendment of whatever nature and at whatever stage the amendment is made. Thus, when an amendment is made to the writ, the amendment dates back to the date of the original issue of the writ and the action continues as though the amendment had been inserted from the beginning; 'the writ as amended becomes the origin of the action, and the claim thereon indorsed, for the is substituted claim originally indorsed' (per Collins M. R in Snead v Wotherton etc. [1904] 1 K. B. 295 at 297.' J16 7.6 The foregoing provision explains that an amendment takes effect from the date of the original document which it amends. Consequently, when an amendment is undertaken, it dates to the original issue of the writ. 7. 7 In this case, the Appellant sought to substitute the name of the Respondent for George Mumba, who was not, according to the Respondent, the Secretary General of the Mine Workers Union in 2016. As rightly stated by the trial Judge, amending process to substitute the name of the respondent representative to a person who was not the Secretary of the General at the commencement action and who did not have capacity at the time to defend the process is not tenable. 7.8 An application to substitute a party made pursuant to Order 15 Rule 6 subrule 1 7 of the RSC would have sufficed rather than seeking an amendment of the originating process. That notwithstanding, we agree with the Respondent that the Appellant would not be prejudiced in any way if the Respondent is not sub�tituted as the Mine Workers Union is sued in a representative capacity and would still be bound in any way. 7. 9 On the question of amendments to reflect the payments due to Appellant, we are of the view that it is not essential to amend the process to reflect amounts paid by a party after commencement of an action. This position can be clarified by a witness at trial. In any event, as rightly contended by the Respondent, payment of amounts J17 ' . made to the Appellant after the action has commenced is not prejudicial to the Appellant, the recipient of the amounts paid. 7 .10 Since George Mumba was not the Secretary General of the Respondent at the time the action was commenced and the figu res endorsed on the writ were the figu res at the time, the trial Judge was on firm ground when he concluded as he did at page R 13 of the ruling, that the amendments any sought did not seek to correct error or to clarify anything that remained unclear in 2016. Given the foregoing, we take the view that the Appellant's first ground of appeal is misconceived and fails accordingly. 7 .11 The second and third grounds of appeal asserts that the trial Judge erred in refusing to grant the order for amendment on the basis that the clarifications sought to be introduced span seven (7) pages and amounted to a new claim; and further that the proposed amendments speak to issues that were canvassed 1n cross­ examination of the Appellant's witness. 7-.12 The part of the Ruling of the trial Judge in controversy is shown at pages R13 to R14 thereof where the Judge stated that: 'Similarly, I have considered the nature of the proposed amendments to be made to the statement of claim. Ex facie, there are no errors intended to be cured in the said statement of claim as it stands. What is clear is that the proposed amendments except for the two (2) paragraphs, seek to render redundant the rest of the averments and substitute them with J18 ' . completely new averments. It is for this reason that State Counsel argued that they constitute a new claim. To that end, I am in agreement that although the proposed talk amendments about the nature of the transaction and how it operated in minute detail, the plaintiff seeks to recast this case in its entirety as pleaded, as it introduced about 34 new paragraphs from the original 8 and spans 7 pages. And this is more so being proposed when the plaintiff's only witness has already testified and cross-examined. The new averments proposed to be introduced in the statement of claim, also speak to the issues that were canvassed in cross-examination of the plaintiff's witness. Although there is no dispute as to the change of office bearers and post claim payments made, by its affidavit in support, the plaintiff is largely not satisfied with its case as currently pleaded when it was deposed to in paragraph 6 of the affidavit in support as fallows: '6. That further, the originating process as currently sits on the Court record is not elaborate and does not disclose in sufficient detail the full facts relating to the claim. There is therefore need to clarify and elaborate are the claim so that the issues in dispute clear and unambiguous. ' Again, in its affidavit in reply, it was reiterated as follows: '1 7. That the defendant claims that the plaintiff has amended 95% of its claim; however, a perusal of the J19 statement sought to be amended will show that it only has eight (8) with no very brief paragraphs explanations provides as to the basis of the claim. In short, the claim was too brief and was not sufficiently elaborated. 18. That all the plaintiff has done in the proposed amendment is to provide elucidation, elaboration, and clarification of the claim.' 7.13 The Appellant argued that there was no qualification on the length of an amendment to originating process and that this could be any length if it caused no injustice that to the other party and provided a costs order could mitigate any prejudice that may exist. It also canvassed that there is no law that prohibited an amendment of pleadings even if issues were tested in cross-examination. 7.14 It was also submitted by the Appellant that where an amendment sought does not constitute the addition of a new cause of action nor raise a different case, the amendment should be allowed. The Court's attention was drawn to the provisions of Order 20 Rules 5 of the RSC which provides that: 'An amendment (2) notwithstanding that the effect of the may be allowed under paragraph amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respec,t of which relief has already been claimed in the action by the party applying for leave to make the amendment. ' J20 7.15 The Respondent insisted that the nature of the amendments sought by the Appellant were such that it contained material that arose in cross-examination of the Appellant's witness and hence by the proposed amendments, the Appellant was attempting to cure the damage done, which would prejudice the Respondent and could not be atoned for by an award of costs. 7 .16 We have perused the endorsement and the particulars on the initial amended statement of claim shown at pages 32-33 of the Record of Appeal in relation to the Appellant's claim for K16, 755,592.1 1 being monies owing to the Plaintiff by the Defendant as per agreements dated 12 December 2006, 24 March 2009 and 1 June 2012. The proposed amended statement of claim at pages 716 to 722 of the Record of Appeal, volume 2 discloses the amended claim as K2,270,328.11 being the principal sum that remains outstanding and unpaid from total of K4,692, 786.11 as tabulated in paragraph 24 of the proposed statement of claim less the post-claim payment made by the Defendant in the sum of K2,422,458 as stated 1n paragraph 34 of the statement of claim. The new claim 1s substantially lower than the initial claim. 7 .1 7 Further, examining the evidence of the Appellant's witness in cross­ examination shown at pages 852 to 868 of the Record of Appeal, as against the proposed statement of claim at pages 716 to 721, as against the filed statement of claim at pages 32 and 33 of the record, shows that the proposed amendments seek to clarify matters canvassed 1n cross-examination particularly on issues of commission and markup. J21 7 .18 Reviewing the two statements of claim, it is that, as unmistakable rightly stated by the trial Judge that the Appellant endeavours to recast its claim in its entirety by the proposed We are amendments. of the view that the Judge was on firm ground in holding as he did that the intended amendments were a smokes screen of the real intent of the amendment which was a way of curing damage occasioned by the cross-examination of the witness. We therefore find that the second and third grounds of appeal have no merit. 7 .19 The Appellant asserts in the fourth ground of appeal that the trial for the Judge erred when he refused to grant the application amendment on the basis that the application had come late, without considering that only one witness had testified this and therefore could not be considered late in terms of the stage of the proceedings. 7 .20 The Court's attention was drawn to the provisions of Order 18 Rule 1 of the High Court Rules of Zambia2 which provide that: order 'The Court or Judge may, at any stage of the proceedings, any proceedings to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass or delay the fair trial of the suit, and for the purpose of determining, in the existing suit, the real question or questions in controversy between parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just.' J22 7 .21 It was the Appellant's contention that the above prov1s10n was unambiguous that an amendment to process can be made at any time, including where a witness has already testified and been cross-examined by the other party. It was argued that the law does not qualify the stage at which amendments can be made. 7. 22 Further reference of Attorney White Book3 and the cases and Zambia Airways Corporation General Tall v Aboubacar Limited1 and Bwalya and was made to Order 20 rule 8 subrule 9 of the Attorney General and another v Mwanamuto Investments Limited2• In the latter may case, the Court held that an amendment be granted if it at any stage of the proceedings is before judgment. 7 .23 It was the Appellant's contention that Courts are called upon to exercise their discretion in favour of granting an amendment, no matter how late in the proceedings the application to amend pleadings may arise, the same ought to be allowed provided judgment has not been delivered. It was averred that the trial Judge therefore erred in not allowing the application based on the application having come late. 7.24 The Respondent emphasized that although at any stage of the proceedings the Laws of Zambia under Order allow for amendments 18 of the HCR, the amendment is only_permissible if the applicant meets the criteria as set out in the case of Zambia Seed Company Limited v West Co-op Haulage Limited and Western Province Co-operative Union3• In that case, it was held that: J23 ' . . Although the pendulum weighs or tilts in favour of granting amendments, Courts of law are entitled to refused amendments in deserving cases. Trial Courts must examine the application for amendments very carefully in light of the affidavit evidence. In the process, the Courts should consider the peculiar facts of each case. In doing so, the Court is enjoined to take into account a number of principles or factors including: (a) the attitude of the parties in relation to the amendment; (b) the nature of the amendment sought in relation to the suit; (c) the question in controversy; (d) the time when the amendment is sought. may zn certain of the respondent Although the attitude instances be an important consideration, the attitude of the applicant is the major consideration. In this regard, the Court must be satisfied is brought bona fide or in good faith and not designed to abuse the Court process. In that the application dealing with the nature of the amendment, the Court should take into consideration the totality of the content of the amendment sought vis-a-vis the relief or reliefs sought in the matter. In consideration of the nature of the amendment sought, the Court should examine closely the real question in controversy in litigation. The time and stage of the case when the application for amendment is brought is also an important factor. And here, the Court should take into consideration whether the applicant brought the application if the application the proceedings; at the earliest opportunity in for amendment was delayed, the Court should be interested to know what caused the delay. If the reason for seeking the amendment is as a result of an J24 ' . important issue relevant to the applicant's case coming to the notice applicant's late, there should be a consideration also whether the applicant, as a person of due diligence and business acumen, ought to have procured the information earlier than the time he obtained it. And here, we are not restricting the words 'business acumen' to the usual meaning of buying and selling; rather it covers the business of searching for winning or exculpatory evidence. We do not think the Court should be prepared to grant an application if the applicant was indolent in the process of searching for the relevant evidence for the amendment. The Court will be in order to use the objective test to judge the business acumen of the applicant vis-a-vis indolent conduct. After all, equity does not assist the indolent. The final consideration is the justice is the of the case. Justice barometer on which the case revolved or rotates in the judicial process. It is the cynosure in the judicial process. The Court should, therefore, carefully consider the dictates of justice in dealing with any application to amend pleadings.' 7 .25 It was argued further by the Respondent that the time that an amendment is made as well as the nature of the amendment; whether the amendment was discoverable before trial, and whether an injustice will be caused to the other party, are factors for the Court's consideration when deciding the application. It was further submitted that the modern approach to deciding amendment applications is consideration whether there is good reason for the lateness and not whether the prejudice to the other party can be compensated for in costs. Counsel for the Respondent contended J25 that the Appellant had not advanced any good reasons for the lateness of the amendment application. 7.26 As correctly highligh ted by the Appellant, the law does not qualify the stage at which an amendment can be made. By virtue of Order 18 Rule 1 of the High Court Rules, allow an amendment of pleadings at any stage of the proceedings. a Court has the discretion to In exercising its discretion judiciously and ensuring that the ends of justice are met, the Court must consider when the application is brought and at what stage of the proceedings the action is at and if the application is brought late, whether the applicant has provided good valid reasons and strong justification for bringing a late amendment of process. It must also consider whether prejudice will be caused to the other party by the amendment. 7.27 The Appellant has argued that the Judge erred by finding that the application had come late, yet only one witness has testified. Counsel considers lateness only in the context of the stage of the proceedings rather than from the date when the action commenced in relation to the time when the application consequential delays this would cause to conclude was brought and the Our this_ matter. view is that the lateness refers to the fact that the action commenced in the High Court in 2016. Despite Orders for directions being issued and the trial scheduled on 12 for commencement October 201 7, the case was set down for trial on over 15 different dates but delayed on account of counsel representing the parties. J26 7.28 The Appellant's case was heard on 11 November 2020, and expected to close, save for an item to be verified by the administrator of the company. Instead of a clarification for conclusion of the case, the Appellant brought an application to amend on 7 April 2021. The Appellant's contention is that this amendment was not application brought late. A proposal for amendment to the originating process, brought almost 5 years after institution of the suit, closure of pleadings and commencement of the trial of the matter, cannot by any stretch of imagination, be considered timely. The application was brought unmistakably late, and it mattered not that only one witness had testified at the trial. The Appellant had only intended to call one witness as the Court was informed. 7.29 In this case, we take the view that the trial Judge was on firm ground in finding that the application to amend the originating process was brought late. Further, there were no real reasons advanced by the appellant for having brought the application for the amendment of the originating process so late in the day. We find that this ground has no merit and therefore fails. 7.30 In tl;le fifth ground of appeal, it is submitted Judge that the trial erred when he overlooked the greater consideration of the justice of the case and relied on much lesser considerations. The Appellant argued that the interest of justice of the should be the parameter grant or refusal of applications before a Court and Judges should not make decisions on lesser considerations than the interests of justice. The case of Zambia Seed Company Limited was referred to, where the Supreme Court in dealing with amending pleadings, J27 stated that the final consideration is the justice of the case. The argument is that Courts should carefully consider the dictates of justice in dealing with any application to amend pleadings. 7.31 The Appellant's contention is that the trial Judge dealt with the purported lateness of the application, the length of the proposed amendments and the loss of trial dates which were not barometers of the justice that should have swayed the Court to decide as it did. Counsel for the Appellant argued that the justice of the case required. that the amendment be allowed as the Appellant would be greatly prejudiced as the current pleadings do not reflect the true position of the amount claimed by the Appellant and neither is it a true-reflection of the current Secretary \leneral of the Mine Workers Union. 7.32 In response, the Respondent contended that that the issues the trial Judge considered were important factors that should have swayed the Court deciding as it did as the Court had a duty to balance the injuries to the party seeking to amend if refused as against the need for (inality in litigation and the injustice to the other. party if the amendment is allowed. It was further submitted that it is not in the public interest to expend the Court's time and attendant resources for the citizens over the same issue that could have been done earlier. 7.33 In relation to amendments to pleadings, we were referred to the case of Bio Construct GMBH v Winspear Limited and another4 where it was held that: J28 'The Court must, taking into account the overriding objectives balance the injuries to the party seeking to amend if it is refused permission, against the need for .finality in litigation and the injustice to the other parties if the and other litigants, amendment is permitted. There is a heavy burden on the party seeking a late amendment to justify the lateness of the application and to show the strength of the new cases and why justice requires him to be able to pursue it. The principles apply with even greater rigour to an amendment and made after trial in the course of an appeal . . (a) Whether to allow an amendment is a matter for the discretion of the Court. In exercising that discretion, the overriding objective is of greatest importance. Applications always involve the Court striking a balance between injustice to the applicant if the amendment is refused and injustice to the opposing party and other litigants in general, if the amendment is permitted; (b) Where a very late application to amend is made, the correct approach ought in is not that the amendments general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other Court users requires him to be able to pursue it. The risk to a trial date may mean lateness of the application to amend will itself cause the J29 balance to be located heavily against the grant of permission. (c) A very late amendment is one made when the trial date has been fixed and where permitting the amendment would cause the trial date to be lost. Parties and the Court have a legitimate expectation that trial be .fixtures will kept; (d) Lateness is not an absolute, but a relative concept. It depends on a review of the. nature of the proposed amendment, the quality for its timing, of the .explanation and a fair appreciation in terms of of the consequences work wasted and consequential work to be done; (e) Gone are the days when it was sufficient for the amending party to argue that no prejudice has been In the modem era, it is more suffered, save as to costs. readily recognized that the payment of costs may not be adequate compensation. {fJ It is incumbent on a party seeking the indulgence of the Court to be allowed to raise a late claim to provide a good explanation for delay; (g) A much stricter view is taken nowadays concerning a non-compliance with the Civil Procedure Rules and directions of the Court. The achievement of justice means J30 something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations. 7 .34 The foregoing authority illustrates that the question of whether to allow an amendment is for the discretion of the Court. The Courts have propounded that there are now so many more considerations in deciding an application for leave to amend process. These include: i). Striking a balance between the interests of the two parties; ii). Considering the timing of the application. If late, the reasons · for the delay. iii). The nature of the proposed amendments, fair appreciation of the work done and consequences of further work to be done as a result of the proposed amendments. 7.35 Being guided by the authorities above, ,we are of the view that the Judge did not fail to consider the justice of the case when he declined to grant the application to amend. Justice entails striking a balance between the interests of both parties and convincing a Court as to why justice the to him and other Court users requires applicant to be able to pursue its application. The Appellant's view that the justice of the case entails granting the application in its favoµr is flawed. The justice of the case involved many other considerations including the interests of the Respondent and the administration of justice. This ground therefore fails. J31 7 .36 The sixth ground of appeal argues that the Judge erretP when he held that the proposed amendments would cause the Defendant prejudice beyond costs when no such prejudice by the was revealed Defendant in the affidavit in opposition and when in fact the Defendant mainly sought for costs to be imposed if the amendment was allowed. The Appellant contended did not that the Respondent show any evidence of prejudice or injustice that it would suffer as a result of the proposed amendment. Counsel argued that since no prejudice was identified, the the trial Judge ought to have allowed amendment especially as an award of costs to the affected party would be sufficient. 7.37 The Respondent drew our attention to page 729 of the record of appeal, where it was indicated that the Respondent prejudiced if the amendment is allowed. would be It was argued that the of Appellant intends to launder their case by having had the benefit the cross-examination of their witness. This would be detrimental to the Respondent. It was submitted that a party is not permitted to use amendments to address issues that arose in cross­ examination to suit their case. 7 .38 In the Bio Construct case cited above, the Court guided that in that payment of costs may it is more readily modern era, recognized not be adequate compensation. The Appellant's argument that the Judge was wrong in concluding that the Respondent would be prejudiced by an amendment to the originating process being brought so late, without the Respondent revealing the prejudice it would suffer is misguided. We are of the view that when litigation is J32 protracted, it does undeniably prejudice the parties involved. This ground of appeal fails accordingly. 7 .39 The above notwithstanding, reviewing the issues canvassed in this appeal, we are of the view that the issue for consideration is whether an amendment of the pleadings is necessary to determine the issues in controversy Court in the case of Zambia Seed Company Limited v West Co­ between the parties as propounded by the Supreme op �aulage Limited and Western Province Union. Co-operative 7 .40 Reviewing the reasons cited by the Appellant for the amendment, which were: to correct the names of the parties; to rectify the amounts owing in view of the payments made by the Respondent to the Appellant; and to clarify the pleadings which were not elaborate and did not disclose in sufficient detail the full facts of the claim. From the extensive proposed amendments, it appears that the main intention of the amendment was to enable the Appellant to clarify its claim. It is improper for the Appellant's counsel to try to correct its pleadings after its primary witness had testified. We are not satisfied that the application was brought in good faith and in an effort to assist the Court to determine the real issues in controversy between the parties. It is evident, as suggested by the Respondent that the Appellant was trying to correct the damage done during cross-examination of its witness. 7.41 The Appellant and his counsel must bear the responsibility of not preparing its pleadings with more diligence such that the Appellant's witness could not refer to matters not properly pleaded. J33 There was no explanation on what caused the delay in bringing the application before the Court. As the Supreme Court have guided in the Zambia Seed Company case, the Court should not be prepared to grant an application if there was indolent conduct on the part of the applicant. 7.42 Their Lordships also aptly guided in that case that the final consideration in dealing with any application to amend pleadings is the dictates of justice. From the foregoing, we are not satisfied that the Appellant has demonstrated for an that the application ame,ndment was brought in good faith and that without the amendment of pleadings, the real issues in controversy between the parties could not be determined. 7.43 For these reasons, we find that this appeal has no merit, and we dismiss the appeal accordingly wit1:1 costs to the Respondent, to be taxed in default of agreement. ,, l I C. F. R. Mc e a DEPUTY JUDGE PRES DE'\VT A. M. Banda-Bobo � COURT OF APPEAL JUDGE " );, rca. :N:X. Sharpe-Pi(h.i COURT OF APPEAL JUDGE J34