Lewis Chisanga Mosho v Shoprite Holdings Limited and Shoprite Checkers (PTY) Limited (APPEAL NO. 212/2022) [2023] ZMCA 339 (22 November 2023)

I N THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEALNO.212/2022 BETWEEN: LEWIS CHISANGA MOSH AND -, 2 2 NOV 2U23 \ __ _ i . l:...n, l, '<. T EL LANT SHOPRITE HOLDINGS LIMITED SHOPRITE CHECKERS (PTY) LIMITED 1 ST RESPONDENT 2ND RESPONDENT CORAM: CHASHI, NGULUBE AND PATEL SC, JJA . On 15th and 22nd November, 2023. For the Appellant: (1) Captain I. M. Chooka (retired) - Messrs. Milimo Chooka & A ssociates (2) Mr. P. Chola - Messrs. Lewis Nathan Advocates For the Respondents: Mr. W. Nyirenda, SC & Mr. K . B otha - Messrs. William Nyirenda & Co. JUDGME N T NGULUBE JA, delivered the Judgment of the Court. Cases referred to: 1. Chatsworth Investments Limited vs Cussins (Contractors) Limited f l 969} All ER, 143 2. 3. Brick.field Properties Limited vs Newton /1971] 3 All ER) 328 Zambia Seed Company Limited vs West Co-op Haulage Limited & Another SCZ/ 8/ 11I 2013 4. Bio Construct GMBH vs Winspear Limited & Another (2020) EWHC QBl 5. 6. Brown vs Innovatorone /2012] EWHC 1321 (Comm) CIP Properties (AIPT) Limited vs Gallif ord Try Infrastructure Limited (No. 3) /2 015} EWHC 1345 (TCC) 7. Daniel Mwale vs Njolomole Mtonga & The Attorney General - Selected Judgment No. 25 of 201 5 8. Hilton vs Sutton Steam Laundry /1946] KB 68 9. ZCCM vs Joseph David Chileshe SCZ Judgment No. 2 1 of 2002 Rules referred to: 1. Rules of the Supreme Court of England 1965 (White Book) 1999 Edition 1.0 INTRODUCTION 1. 1 This is the appellant's appeal, from a Ruling of Honourable Justice S . M. Wa njelani, High Court Judge-Genera l Division , which was delivered on 6 th July, 20 22, in which the Court dismissed the cla ims introduced by the appella nt in th e a m ended Writ if Summons and Sta tem ent of Claim for being s tatute barred. -J2- 2.0 THE BACKGROUND 2.1 On 15th October, 2012, the appellant, who was the plaintiff in the lower Court, com menced an action by writ of summons and statement of claim , again st the respondents and Drug Enforcement Comm ission (defendants in th e lower Court) and claimed the following reliefs: i. For an order that the conduct of the defendants is unlawful reprisal against the plaintiff and violates the Public Interest Disclosure (Protection of Whistleblowers) Act No. 4 of 201 0 ; ii. For an order that the plaintiff is whistleblower and that the disclosure made by the plaintiff to the 3 rd defendant is a protected disc losure pursuant to the Public Interest Disclosure (Protection of Whistleblowers) Act No. 4 of 2010; iii. For an order that the plaintiff is protected under the Public Interest Disclosure (Protection of Whistleblowers) Act No. 4 of 2010 and that the Defendants should not harass the plaintiff in t he name of investigations; iv. For damages against the def end ants occasioned by the defendants' unlawful reprisal against t he plaintiff; v. For interim order staying the complaint submitted by the 1 st and 2nd defendants to the 3 rd defendants -J3- and any proceedings of the 3 rd defendant against the plaintiff until the statutory protection of the plaintiff is determined under the Public Interest Disclosure (Protection of Whistleblowers) Act No. 4 of 2010 vi. For any other relief the court may deem fit; and vii. Costs. 2.2 On 31 s t May, 2019, the appellant discontinued the action against DEC and on 2°d October, 2019, m a de an a pplication to a mend th e writ of summons and statement of claim. The lower Court granted the appellant leave to amend his pleadings and subsequently, the appellant filed the amended writ of summons and statement of claim on 20th July, 2020 . The reliefs in the amended pleadings were couched in the following terms: i. For an order that the conduct of the 1st and 2 nd defendants is unlawful reprisal against the plaintiff and violates the Public Interest Disclosure (Protection of Whistleblowers) Act No. 4 of 2010; ii. For an order that the plaintiff is a whistleblower and that the disclosure made by the plaintiff to the Drug Enforcement is protected disclosure pursuant to the Public Interest Disclosure (Protection of Whistleblowers) Act No. 4 of 2010; -J4- iii. Damages against the 1 st and 2 nd defendants occasioned by their unlawful reprisal against the plaintiff; iv. Damages for malicious falsehood; v. Damages for misrepresentation; vi. Consequential damages for misrepresentation; vii. Interest; viii. Costs; and ix. Any other relief the Court may deem fit. 2.3 On 29 th April, 2021 th e respondents filed a notice of intention to raise prelim inary issues for th e determination of the following questions- i. Whether or not the tortious claims of malicious intent, misrepresentation, detention, imprisonment and arrest raised by the plaintiff are statute barred; and ii. Whether or not the plaintif. I's claim of negligence under paragraph 19 of the plaintiffs amended statement of claim is statute barred. 2.4 The lower Court ruled that the tortious claims introduced by the appellant in the amended writ of summons and statement of claim were a lready statute barred as they accrued between 2003 and 2011. The lower Court was cognizant of the fact that amendments could be allowed even where the limitation period has lapsed but -JS- that no credible reason was advanced by the appellant to justify the delay in making the added claims. 3.0 THE APPEAL 3. 1 Disgruntled with the Ruling of the lower Court, the appellant appealed to this Court advancing two grounds of appeal couched as follows- 1. "The Court below erred in law and fact when it held that no credible reason was advanced to justify the delay in making the tortious claims, which were added to the Writ of Summons and Statement of Claim with leave of Court, and f or the Court to sustain them. " 2 . "The Court erred in law and fact when it proceeded to dismiss the tortious c laims for being statute barred." 4.0 THE APPELLANT' S CONTENTION 4.1 The parties filed heads of argument which they relied upon at th e hearing of the appeal. 4.2 In support of ground one, the appellant's advocates contended that the appellant had shown the intended amendments to the lower Court when he made the application. That therefore, the lower Court ought to have considered the reasons for the delay in -J6- bringing the added claims at the time the appellant made the application to amend the pleadings and not at the time the respondent raised the preliminary issue. 4.3 In making reference to Order 20/8/4(c) of the Rules of the Supreme Court, he argued that the lower Court had an opportunity to look at the added claims in the draft amended statement of claim at the time the appellant made the application to amend p leadings, but still a llowed the amendments. It was submitted that in any event, the appellant amended his pleadings as shown in the application to amend. 4.4 It was submitted that it was therefore an error for the lower Court to find that there were no credible reasons advanced to justify the delay in making the tortious claims as no such responsibility arose at the time the appellant made the application. That the appellant justified why he sought to add the tortious claims in his application to amend. 4.5 It was submitted in support of ground two that the tortious claims found their way in the writ of summons after the appellant sought leave from the lower Court. We were referred to Order 20 Ru le 2 and 5 of the Rules of the Supreme Court of England 1965 (White Book) 1999 Edition which provides that- -J7- "(2) Where an application to the Court for leave to make amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks just to do so. In this paragraph, "any relevant period of limitation" includes a time limited which applies to the proceedings in question by virtue of the Foreign Limitations Act, 1984. (5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the 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 respect of which relief has already been claimed in the action by the party applying for leave to make the amendment." 4. 6 We were referred to the case of Chatsworth Investments Limited vs Cussins (Contractors) Limited1 where Lord Denning MR held that an amendment should be allowed whenever it is just to do so, even though it may deprive the defendant a defence under the statute of limitations. 4.7 Further we were referred to the case of Brickfield Properties Limited vs Newton2 where it was held that an amendment should -J8- be allowed even if the effect would be to add or substitute a new cause of action in respect of which relief has already been claimed in the action. 4.8 It was submitted that the lower Court had jurisdiction to allow the tortious claims to be included to the action, as the amended claim arose out of the same, or substantially the same facts contained in the origin al writ of summons and statement of claim. We were urged to a llow the appeal so that the appellant can purse his claims in the lower Court. 5.0 THE RESPONDENT'S ARGUMENTS 5.1 In response to ground one, the respondent's counsel submitted that the Court's finding that the appellant did not give ajustifiable reason for the delay in making the application to a m end his pleadings was factual because the record did not reveal any such reason. It was submitted that it is mandatory at law to advance reasons for the delay in making amendments. To buttress this argument, we were referred to the cases of Zambia Seed Company Limited vs West Co-op Haulage Limited & Western Province Co-operative Union3 and Bio Construct GMBH vs Winspear Limited & Another. 4 -J9- 5.2 In relying on the cases of Brown vs Innovatorone PlcS and CIP Properties (AIPT) Limited vs Galliford Try Infrastructure Limited, 6 cou nsel argued that the modern approach to making amendments is no longer wh ether or not the amendments should be allowed but whether or not th ere is any good reason for the lateness of the amendment. It was argued that the appellant did not advance any good reason for the delay in making the amendment. Counsel submitted that exhibiting the proposed amendments in the affidavit in suppor t of the application and stating the reasons why one needs an amendment are therefore not sufficient to warrant the amendment. 5.3 In response to ground two, it was submitted that the fact that the claims a dded to the pleadings by the a ppellant are statute barred is not in dispute as he has also admitted this fact. We were referred to the case of Daniel Mwale vs Njolomole Mtonga & The Attorney General7 where the Supreme Court explained the rationale for the limitation period as follows- "The policy behind the limitation periods is to bar stale claims from being resurrected as it would be injustice to allow proceedings to hang over a potential Defendant's head indefinitely. This is particularly so -JlO- where witnesses' memories have faded, and the qualit y of justice likely to be compromised. " 5.4 It was submitted that there is no excuse that can be accorded to the appellant who is himself a legal practitioner, for failure to comply with statute. 5. 5 We were also ref erred to the case of Hilton vs Sutton Steam Laundry8 where it was stated that - "But the statute of limitation is not concerned with merits. Once the axe falls, it falls, and a defendant who is fortunate enough to have acquired the benefit of t he statute of limitation is entitled, of course, to insist on his strict rights. " 6 .0 HEARING OF THE APPEAL 6 .1 At the hearing of the appeal, both parties r elied on the heads of argument filed into Court and augm ented with oral submissions. Counsel for the appellant referred the Court to the case of ZCCM vs Joseph David Chileshe 8 and relied on the holding of th e Supreme Court that an a mendment can only be made where there are peculiar circumstances justifying the amendment. Counsel believes tha t this a uthority is on all fours with this cas e. -J11- 6.2 In reply, Counsel for the respondent submitted that the case of ZCCM vs Joseph David Chileshe (supra) 1s distinguishable from this case, because this appeal attempts to bring completely fresh causes of action which did not exist. It was submitted further that the appeal has not given any peculiar circumstances that would justify overturning the decision of the lower Court in not allowing the amendment for being statute barred. 6.3 Counsel submitted that, the Supreme Court of Zambia in the case of Daniel Mwale vs Njolomole Mtonga (supra) has given policy direction which is injustice being occasioned to the defendant if the statute of limitation is not strictly applied. Counsel argued that the a ppellant has admitted that his claims are statute barred but that the lower Court granted leave to amend. It was argued that, this does not waive the limitation period. That therefore the lower Court was on firm ground, as the statute of limitation is not concerned with merit. -J12- 7.0 ANALYSIS AND DECISION OF THIS COURT 7.1 We have considered the record of a ppeal, the parties' arguments a nd the ruling of the court below. The question that this appeal raises is wh ether the lower court was justified in dismissing the additional claims which were a dded by th e appellant in the amended writ of summons for being statute barred. 7.2 On 15 th October 2012, the appellant commenced an action in the lower Court against the respondents and the Drug Enforcem ent Commission DEC (defendants) for damages a llegedly occasioned by them for unlawful reprisal against the appellant, among oth er declaratory reliefs. Subsequently, the appellant discontinued the action against DEC a nd obtain ed leave to amend his pleadings to include damages for malicious falsehood, damages for misrepresentation, consequential damages for misrepresentation and special damages. 7.3 The appellant made t h e application to a m end on 2 nd October, 2019, seven years after commencing legal proceedings. It is therefore evident th at the amendment was made outside the limitation period of six years . -J13- 7.4 The Court's power to allow amendment of pleadings outside the limitation period is provided for in Order 20 Rule 5 (2) of the Rules of the Supreme Court. It provides that the Court may nevertheless grant an application to amend pleadings after expiry of th e relevant period in the circumstances mentioned 1n paragraphs (3), (4) and (5). These paragraphs relate to amendments corr ecting the name of a party, altering the ca pacity in which a party is sued and substitution of a new cause of action if the new cause of action arises out of the same facts , or substantially the same facts as the cause of a ction in respect of which relief h as already been claimed. 7 .5 In interpreting the provisions of Order 20 Rule 5, the Supreme Court of Zambia in the case of Zambia Consolidated Copper Mines Limited vs Joseph David Chileshe (supra) observed as follows- "On the totality of the authorities we have considered, we are of the firm view that although Order 20 rule 5 gives the court power to allow the plaintiff to amend his writ or any party to amend his pleadings, it does not provide a wide discretion and does not allow a general relaxation of the governing principle that any amendment after the expiry of the limitation period will -J14- not be allowed unless it is just to do so and it will be just to do so if there are peculiar circumstances which make the case an exceptional one. The application to amend the Writ and the Statement of Claim was made under Order 20 Rule 5 . By Paragraphs (1) and (2) of Rule 5, the amendments should relate to the circumstances mentioned in paragraphs (3) (4) and (5) of Rule 5. The onus is on the plaintiff to satisfy the Court that the application to amend relates to one or some or all the circumstances mentioned in paragraphs (3) (4) and (5)." 7 .6 Having looked at the amended writ and statem ent of claim, the paragraph which a ppears to be relevant to this a pplication is paragraph (5). It is therefore relevant to reprodu ce paragraph 5 which provides a s follows- "An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has been claimed in the action by the party applying for leave to make the amendment." 7 . 7 It is clear that for an amendment to be allowed under paragra ph (2) with respect to the circumstances mentioned in paragraph (5), the additional or substituted cause of action should arise out of -JlS- the same facts as the cause of action in respect of which, relief has been claimed in t h e action by the party applying for leave to make the amendment. 7 .8 The writ and statement of claim in respect of which the lower Court granted leave to amend was for declaratory orders under the Public Interest Disclosure (Protection of Whistleblowers) Act No. 4 of 2010 and damages for the respondents' alleged unlawful reprisal against the appellant. This claim allegedly occurred when the appellant reported the respondents' su spicious instructions which arose out of their lawyer-client relationship. Paragraph (5) envisions an amen dment which will add or substitute a cause of action from the one already filed provided it arises out of the same facts . 7.9 Further, we are guided by the case of Zambia Consolidated Copper Mines vs Joseph David Chileshe (supra) where the Supreme Court held- "Where an action is statute barred at the time of amendment of the statement of claim, the amendment can only be made if there are peculiar circumstances justifying the limitation period." -J16- 7 .10 From the a b ove au thority, the general rule is t h at the Court will not grant an a m endment after the limitation period unless there are peculiar circumstan ces. The Supreme Court of Zambia in the above case discu ssed at len gth as to wh at would amount to peculiar circumstances. 7.11 We have no evidence upon which we can make a finding that there are peculiar circumstan ces disclosed by the appellant in this case for us to h old t h at this case was a n exceptional one and that it would be just to allow the amendment. In fact, the appellant did not give any reason as to why he was unable to make the application to amend for 7 years. We are ably guided by the case of Zambia Seed Company Limited vs West Co-op Haulage Limited & Another (supra) wh ere the Supreme Court of Zambia stated the following- "The court should take into consideration whether t he applicant brought the application at the earliest opportunity in the proceedings. If the application for amendment was delayed, the court should be interested to know what caused the delay. If the reason fo r seeking the amendment is as a result of an important issue relevant to the applicant's case coming to the applicant's notice late, that should be a consideration in his favour." -J17- ,.., 7.12 Clearly, the reasons for the delay are also an important factor for the Court to consider in granting the application for an amendment and the appellant failed to furnish those reasons. 8 .0 CONCLUSION 8.1 For the foregoing reasons, the appeal is hereby dismissed for lack of merit. We order that this matter be sent back to the High Court for trial as per the appellant's initial claim. 8.2 Costs to the respondent and to be paid forthwith and are to be taxed in default of agreement. J. CH SHI COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE A. N. PATEL,SC COURT OF APPEAL JUDGE -J18-