Kasama Chambers (Appealing as a Firm) v Suba, Tafeni & Associates (Responding as a Firm) (APPEAL NO. 275/2022) [2024] ZMCA 100 (3 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 275/2022 HOLDEN AT LUSAKA (CIVIL JURISDICTION) 0 3 MAY 2024 BETWEEN: KASAMA CHAMBERS (Appealing as a Firm) APPELLANT AND SUBA, TAFENI & ASSOCIATES RESPONDENT (Responding as a Firm) CORAM: CHASHI, MAKUNGU AND SICHINGA, JJA ON: 27t h March and 3 rd May 2024 For the Appellant : B . Nhoni, Messrs Kasama Chambers For the Respondent : NI A JUDGMENT CHASHI JA delivered th e Judgm en t of th e Cou rt . Cases referred to: 1. Philip Mutantika and Mulyata Sheal v Kenneth Chipungu - SCZ Judgment No. 13 of 2014 2. Attorney General v Million Juma (1984) ZR, 1 3. Zambia Telecommunications Company Limited v Aaron Mweene Mulwanda and Paul Ngandwe (2012) Vol 1 ZR, 4. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR, 172 J2 5. General Nursing Council of Zambia v lng'utu Milambo Mbangweta (2008) Vol 2 ZR, l 05 6. YB and F Transport Limited v Supersonic Motors Limited - SCZ Judgment No. 3 of 2000 7. Chimanga Changa Limited v Chipango Ngombe - SCZ Judgment No. 5 of 2010 Rules referred to: 1. The High Court (Amendment) Rules, Statutory Instrument No. 58 of 2020 2. The Rules of the Supreme Court, (Whitebook) 1999 1.0 INTRODUCTION 1.1 This is an appeal against the Ruling of Honourable Mr. Justice C. Zulu, delivered on 8 th July 2022. In the Ruling, the learned Judge dismissed the Appellant's preliminary objection to expunge the Respondent's witness statement and scheduling conference brief from the record. 2.0 BACKGROUND 2.1 The context of this appeal is that on 10th November 2021, the Respondent (plaintiff in the court below) commenced an action against the Appellant (defendant in the court below) by way of writ of summons and statement of J3 claim. Th e Appellant resp onded by entering appearance a nd filing its defence on 23r d November 20 2 1. 2.2 On 16t h December 2021, the learned Judge issued an Order fo r Directions. Item 5 of th e Order is relevant t o this case a nd reads as follows: "Seven (07) days before the Scheduling Conference, the Parties shall comply with Order X1X rule 2(2) of the High Court (Amendment) Rules, Statutory Instrument No. 58 of 2020, relating to the filing of the following: (a)A concise summary of the facts, including the agreed facts and admissions; (b) A concise summary of the issues and the law to be relied on by each party, including the rights and interests of the party; (c) Witness statements which shall contain all the facts relevant to the claim, as the case may be and shall make reference to the documents relied upon in the bundle of documents; and J4 (d)Expert reports, if any" 2.3 The Appellant submitted its summary of facts, agreed facts, admissions, and issues to be determined on 2nd February 2022 . The Appellant also filed the Defendant's witness statements on the same date . 2.4 On 8 th February 2022, just two days before the scheduling conference, the Respondent submitted the Plaintiffs witness statement. However, on 14th February 2022, the Respondent withdrew the previously submitted witness statement filed on 8 th February 2022. On 16th May 2022, the Respondent refiled the witness statement and a scheduling conference brief. 2.5 On 8 th June 2022, the Appellant filed a notice of intention to raise a preliminary issue pursuant to Order 14A/ 1 of The Rules of the Supreme Court (RSC) 2 as read with Order 33 rule 7 on the following grounds: 1. That the Respondent wantonly disobeyed the Court's Order for Directions by not filing the summary of facts within the time which was prescribed by the court. J5 2. That the Respondent has breached Order 38 Rule 2A ( 10) of the Rules of the Supreme Court (White book) 1999 Edition by filing a witness statement and summary of facts without the leave of the court. 2.6 The Appellant made the argument that the witness statement filed on 8 th February 2022, was filed only two days before the scheduling conference instead of the seven days directed by the court. Additionally, it claimed that the witness statement and summary of facts filed on 16th May 2022, were done without leave of court, making them irregular and incompetent before the court. 2.7 The Appellant also contended that the refiled witness statement did not comply with the correct format and rules of drafting witness statements, as the Respondent's refiled statement did not r efer to the documents in the bundle of documents. As a result, the Appellant believed that the refiled witness statement and scheduling conference brief ought to have been expunged from the record. 2.8 At the hearing of the Appellant's application, the Respondent claimed that it had obtained leave from the J6 court to file t h e witness statement and the scheduling conference b r ief out of tim e. The Respondent further argued that if the Appellant had con du cted a search on record, it would have discovered that leave was obtained. 2 .9 In rep ly, the Appellan ts argued that if the Respondent had filed an opposing affidavit to the preliminary obj ection , as mandated by Order 30 Rule 3A (3) of The High Court (Amendment) Rules 1 , addr essing the issue of leave, it would h ave enabled the Appellants to withdraw their prelimin ary objection. 3.0 RULING OF THE COURT BELOW 3. 1 After reviewin g the application to raise a preliminary objection and hearing arguments from both sides, the learned Judge deemed the objection unnecessary. This was because the Respondent was granted leave to file their witness statement and scheduling brief out of time . 3.2 According to the learned Judge , had the Appellant exercised reasonable cau tion to confirm whether or not the Respondent had been granted permission, there would have been no need to file the objection. However, J7 their lack of caution resulted in the loss of time for both the court and the Respondent. The learned Judge was, therefore, of the view that the consequence of the Appellant's laxity must be borne by them. The application was accordingly dismissed with costs. 4.0 THE APPEAL 4 . 1 Dissatisfied with the Ruling of the lower court, the Appellant has appealed to this Court, advancing three (3) grounds of appeal as follows: 1. That the Honourable Judge in the court below erred in law and fact when, in his ruling, he only considered the Respondent's submissions in reply and completely ignored or failed to consider the point of law raised by the Appellant in reply pertaining to Order 30A Rule 3 of the High Court (Amendment) Act, 2020 contained in Statutory Instrument No/ 58 of 2020. 2. That the Honourable Judge in the court below erred in law and fact when, in his ruling, he awarded costs to the Respondent, apparently J8 being oblivious to the fact that the Respondent was at fault by having breached Order 30A Rule 3 of the High Court (Amendment) Act, 2020 when the Respondent decided to respond to the Appellant's preliminary issues viva voce instead of filing the response in court before the hearing date. 3. That the Honourable Judge in the court below erred in law and fact when he failed to recognize the fact that the Respondent's failure to file a response to the preliminary issues as per Order 30A Rule 3 of the High Court (Amendment) Act, 2020 prevented the Appellant from withdrawing the preliminary issues. 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 Mr. Nhoni, Counsel for the Appellant, relied on the filed heads of argument dated 21 st November 2022. In support of ground one, Counsel argued that the Respondent failed to follow the proper procedure in responding to the Appellant's application to raise a preliminary issue. J9 Instead of filing an affidavit in opposition with skeleton arguments, as required by Order 30 Rule 3A (3) of The High Court (Amendment) Rules 1 , the Respondent chose to submit viva voce, completely disregarding the legal procedure. 5.2 It was argued that the need to submit an affidavit in opposition and skeleton arguments is compulsory. The Respondent had no choice but to comply, particularly since it was served with the application in due time. In that regard, the cases of Philip Mutantika and Mulyata Sheal v Kenneth Chipungu 1 and Attorney General v Million Juma2 were cited to differentiate between mandatory and directory provisions. 5.3 It was contended that the learned Judge did not take into account the Appellant's submission on the point of law raised, and furthermore, there was no attempt by the Judge to discuss it. According to Counsel, the lack of consideration and discussion fell short of what could be considered a fair and just ruling or judgment. 5.4 Counsel referred to the cases of Zambia JlO Telecommunications Company Limited v Mulwanda and Others3 and Wilson Masauso Zulu v Avondale Housing Project Limited4 to support the position that courts have a duty to a djudicate upon every aspect of the suit between the parties. This is to ensure that every matter in controver sy is determined in finality. 5.5 In support of ground two, Counsel referred to the case of General Nursing Council of Zambia v Ing'utu Milambo Mbangweta5 and submitted that costs are awarded at the discretion of the court and ordinarily follow the event. However, the court has the power to deviate from this general rule and make a different type of costs order. The case of YB and F Transport Limited v Supersonic Motors Limited6 was cited to support the position that a successful p arty should not be deprived of costs unless their conduct or actions are found wanting. 5 .6 It was argued that the Respondent failed to comply with the legal procedure in Order 30 Rule 3A (3) of The High Court (Amendment) Rules 1 . As a result, the lower court Jll s h ould have fou nd the Respondent's condu ct wanting and shou ld not have awarded costs to th em. 5 . 7 Grou nd th ree was based on t h e legal pr inciple that civil litigation does not involve any element of su rprise. It was argued that Order 30 Rule 3A (3) of The High Court (Amendment) Rules 1 was intended to eliminate surprise so the other party could respond to the affidavit in opposition. 5.8 In the present case, the Respondent, after obtaining leave ex parte, did not serve the Appellant the Order granting leave. According to the Appellant, the Respondent should have filed an affidavit in opposition, exhibiting the ex parte Order granted by the court. The Appellant cited the case of Chimanga Changa Limited v Chipango Ngombe7 to support the position that rules of the court require that parties to a dispute must be served with any court process. The rationale behind this requ irement is th e common law principle of audi alteram partem, meaning "listen to the oth er s ide. " 6.0 ARGUMENTS OPPOSING THE APPEAL Jl2 6.1 The Respondent was absent during the hearing of the appeal, and also failed to file their heads of argument. Upon being satisfied that the Respondent had been duly served with the notice of hearing and in the absence of any reasons provided for their nonattendance, we proceeded to hear the appeal. 7.0 ANALYSIS AND DECISION OF THE COURT 7. 1 We have carefully perused the record and considered the arguments advanced by the Appellant. We have also considered the impugned Ruling. 7 .2 Upon reviewing the record, it becomes evident that the issue of obtaining leave to file the plaintiffs witness statement and scheduling conference brief out of time does not pose significant concern. However, the crux of the issue relates to the consequences stemming from the Respondent's failure to file an affidavit in opposition to the preliminary objection, as mandated by Order 30 Rule 3A (3) of The High Court (Amendment) Rules 1 • J13 7 .3 Order 30 Rule 3A (3) of The High Court (Amendment) Rules 1 provides as follows: "On receipt of the affidavit in support of the application, skeleton arguments and list of authorities, the respondent shall file an affidavit in opposition with skeleton arguments and list of authorities" 7.4 The Appellant has posited that if the Respondent had filed an affidavit in opposition to the preliminary objection, it would have satisfied their concerns and the Appellant would have retracted the objection. Furthermore, the Appellant is of the op1n10n that its condemnation in costs was unwarranted, as a direct result of the Respondent's failure to file the requisite affidavit as stipulated by Order 30 Rule 3A (3) of The High Court (Amendment) Rules 1 • 7 .5 Upon scrutinizing the events preceding the raising of the preliminary objection, it is ou r considered view that following the receipt of the refiled witness statement and scheduling conference brief on 16th May 2022, and with the intention to contest the manner in which these documents were filed, it became incumbent upon the Jl4 Appellant to ascertain whether the Respondent had obtained leave to file them outside the designated time frame before lodging their preliminary objection. 7 .6 Despite the Respondent's failure to adhere to the court's specified time frame, the Appellant could not merely presume that the Respondent had not obtained permission to file the documents beyond the prescribed period. 7.7 We concur with the learned Judge's assessment that, although the Appellant was not formally served with the ex parte Order, it should have conducted a diligent search at the Registry to ascertain whether leave had been granted to file the documents outside the stipulated time frame. Had the search revealed the absence of such permission, the Appellant would then have been entitled to lodge the preliminary objection. Therefore, the invocation of the provisions of Order 30 Rule 3A (3) of The High Court (Amendment) Rules 1 was unwarranted, and the lower court should not be held responsible for the Appellant's oversight. 7 .8 The actions of the Appellant resulted 1n a delay in the J15 h earing of th e main m atter and wasted valu able court time. Consequently, the learned Judge's decision to imp ose costs on the Appellant was justified. We find no valid grounds to intervene with the Ruling of the lower cou rt. 8.0 CONCLUSION 8 .1 In sum, the appeal is un ·torious and is accordingly J. CHASHI COURT OF APPEAL JUDGE ..•...••.... ~ •••................... C. K. MAKUN COURT OF APPEAL JUDGE