Sandra Nanyambo Kameme Hamunjele v Sepiso Kameme (Sued as Administrator of the Estate of the late Sepiso Kameme) (APPEAL NO.175/2022; CAZ/8/54/2021) [2023] ZMCA 342 (24 November 2023)

IN THE COURT OF APPEAL OF Z HOLDEN AT NDOLA (Civil Jurisdiction) BIA APPEAL NO.175/2022 AND SEPISO KAMEME {Sued as Administrator of the Estate of the late Sepiso Kameme) RESPONDENT ZAMBIA NATIONAL COMMERCIAL BANK 2ND RESPONDENT Coram: Makungu, Chishimba and Muzenga, JJA On the 17th and 24th day of November, 2023 For the 1st appellant: Mr. G. H aakayithi of LM Chambers For the 1s t respondent: Mr. K. Kawana with Mr. Nkunika of Simeza Sangwa & A ssociates For the 2 nd respondent: Mrs. A. M walula of Ndemanga Mwalula A ssociates JUDGMENT Makungu JA, d elivered the Judgment of the Cou rt. Cases referred to: 1. Teddy Puta v. Ambindwire Friday SCZ Appeal No. 30/ 2015 2. Zambia Consolidated Copper Mines Limited v. Chileshe (2002) Z. R 86 3. Manharial Hartji Patel v. Surma Stationers Limited, Shashikanji Devraj Vaghela and Emmauel Mwansa SCZ Judgment No. 12 of 2009 4. William David Carlisle v. E. F H ervey Limited (1985) Z. R 179 SC 5. Chango Stanley Mukuma v David Kangwa SCZ Selected Judgment No. 11 of2015 6. Tildesley v. Harper (18 76) 10 CH. D 393 Legislation referred to: 1. The High Court Act, Chapter 27 of the Laws of Zambia 2. The Rules of the Supreme Court of England 1999 Edition (White Book) Other authorities referred to: 1. Bryan A. Gamer (2004) Black 's Law Dictionary 8th edition, Thomson West, USA. 1.0 INTRODUCTION This is an appeal against the extempore ruling of S. M. Wanjelani J, of the High Court dated 8 th February, 2021 dismissing the appellant's application to amend pleadings. We shall henceforth refer to the parties according to their designations in this court. 2.0 BACKGROUND TO THE APPEAL 2.1 On 17th July, 2013, the appellant commenced cause No. 2013/HP/1024 against the 1st respondent as 1st defendant and 2nd respondent as 2nd defendant by way of writ of summons and statement of claim seeking inter alia a declaration that the plaintiff is the rightful owner of Flat No. 2 Zanaco Flats, Great East Road, Lusaka and that the said property does not form part of the estate of late the Sepiso Vincent Kameme. -J2- 2.2 The Hon Mr. Justice I. T Chali (deceased) presided over the matter. Unfortunately, he died after trial but before he could pass judgment. Consequently, the case was re-allocated to the Hon . Justice S. M. Wanjelani. 2.3 On 4 th February, 2021 the appellant filed an application for leave to amend pleadings and served it upon the respondents. When the matter came up for commencement of trial on 8 th February, 2021, the appellant applied for an adjournment to give an opportunity to the respondents to respond to her application for leave to amend the pleadings. There was no objection from the respondents but they prayed for costs. 3.0 DECISION OF THE COURT BELOW 3.1 On the same date, the trial judge delivered an extempore ruling. The relevant parts thereof are as follows: "The record shows that the matter went through a full trial and was concluded on 13th November) 2015 and the parties were directed to file submissions after which judgment should have been delivered. This was not done) leading to my direction that the matter be heard de nova before me. -J3- In my view, hearing the matter de novo after a full trial does not extend to re-opening the pleadings as I am simply hearing what was heard and then proceeding to deliver a judgment. Further, this matter was adjourned on 2 1st September, 2020 a period of over 4 months and the plaintiff only made the applications 3 days before the scheduled trial. In addition, Messrs LM Chambers have had conduct of this matter from inception, and thus cannot allege to have come across something new that would necessitate the proposed amendments. In sum total, I am only going to hear this matter de novo based on the pleadings on record and not to re-open the pleadings. The application to amend pleadings is thus incompetently before me and it is dismissed. " 4.0 GROUNDS OF APPEAL 4.1 The appellant advanced three grounds of appeal framed as follows: 1. That the learned trial Judge erred in law and fact when she dismissed the appellant's application to amend pleadings on the basis that hearing a matter de novo after a full trial does not extend to re-opening the -J4- pleadings but entails that the court should only hear what was heard and then proceed to render ajudgment. 2. That the learned trial Judge misdirected herself in law and fact when she dismissed the appellant's application to amend pleadings and held that when hearing a matter de novo the parties are bound by the pleadings earlier filed into court. 3 . That the learned trial judge misdirected herself in law and fact when she dismissed the appellant's application to amend pleadings without regard to the merits and nature of the proposed amendments and the law that a party can amend its pleadings at any stage before trial is concluded. 5 .0 HEARING OF THE APPEAL 5. 1 Durin g t h e h earing of th e appeal, th e parties relied on th eir respective h eads of argument. 6.0 APPELLANT'S HEADS OF ARGUMENT 6 . 1 According th e a ppellant 's heads of argument filed on 8 th August, 20 22 , grounds 1 and 2 were argued together as they are r ela ted . -JS- 6.2 In argumg these two grounds, counsel for the appellant adverted to the definition of "trial de nova" from Black's Law Dictionary 9 th Edition at page 1445 where it is defined as follows: "Trial de novo is a new trial on the entire case that is on both questions of fact and issues of law-conducted as if there had been no trial in the first instance." 6 .3 Counsel submitted that the decision by the trial Judge to dismiss the application on the basis that h earing a matter de novo does not extend to re-opening the pleadings has no legal basis because the Supreme Court has in a plethora of cases guided on the meaning of fresh hearing. We were referred to the case of Teddy Puta v. Ambindwire Friday, 1 where the Supreme Court stated that: "A rehearing as we understand it, entails a repeat hearing: a resubmission of the evidence and a re-evaluation of that evidence. It presupposes that any trial judge assigned to rehear a matter is to begin to hear that matter afresh; on a clean slate, so to say. This the learned trial Judge did not do." -J6- 6.4 Therefore, the trial Judge fell in grave error when she held that hearing a matter de novo after a full trial does not extend to re-opening the pleadings. 6.5 In support of the 3 rd ground of appeal, counsel submitted that the law allows amendment of pleadings at any stage of the proceedings in the interest of justice and fair trial. To fortify his submission, he relied on Order 18 Rule 1 of the High Court Rules and Order 20 Rule 5 of the Rules of the Supreme Court (WhiteBook) . He also referred us to a nu mber of cases including Zambia Consolidated Copper Mines Limited v. Chileshe2 and Manharial Hartji Patel v . Surma Stationers Limited, Shashikanji Devraj Vaghela and Emmanuel Mwansa. 3 7.0 1st RESPONDENT'S HEADS OF ARGUMENT 7 .1 The 1st respondent relied on the heads of argument filed on 13th October, 2022 in which he gave us a schedule of the initial pleadings and the proposed amendments which we will not restate as we are not dealing with the merits or demerits of the dismissed application for leave to amend pleadings. He proceeded to argue ground 3 first. 7 .2 He submitted that the court below was on firm ground when it dismissed the appellant's application for leave to amend -J7- pleadings because allowing the appellant to amend her pleadings after hearing the evidence of the respondents will be prejudicial to the respondents. That it will allow the appellant to tailor its case in line with the respondent's eviden ce that was a dduced in th e court below. 7.3 At this juncture, we must state that most of the authorities referred to by the 1s t respondent's counsel talk about the circumstances under which an application for amendment of pleadings can be allowed or disallowed. We are of the view that those authorities are irrelevant to th e decision of the appeal and therefore we shall not mention them in this judgm ent. That is because we are n ot dealing with an application for leave to amend the pleadings which was in fact dismissed although not on its merits. 7. 4 Counsel referred u s to the case of William David Carlisle Wise v. E . F Hervey Limited4 where th e Supreme Court stated th at: "Pleadings serve the useful purpose of defining the issues off act and of law to be decided; they give each party distinct notice of the case intended to be set up by the other; and they provide brief summary of each party's case from -JS- which the nature of the claim and defence may be easily apprehended." 7.5 Counsel submitted that the amendments which the appellant intends to make leaves the 1st respondent and the court in the dark as to what exact relief is being sought. Thus the amendments ought not to be allowed as they will prejudice and delay the matter. 7 .6 The respondent argued grounds 1 and 2 together as follows; hearing the matter denovo does not entails the re-opening of pleadings. To support this argument, he cited some foreign cases which are not applicable. That hearing a matter denovo, does not give the parties liberty to recast their pleadings or an opportunity to improve its case. He submitted that the appellant seeks to amend its pleadings in order to improve its case after a full trial. This is prejudicial to the respondents as such an injustice cannot be atoned for by an order for costs. 7.7 We were urged to dismiss the appeal. 8.0 2 nd RESPONDENT'S HEADS OF ARGUMENT 8 .1 The 2 nd respondent's heads of arguments filed on 8 th November, 2022, the 1st and 2 nd grounds of appeal were argued together as follows: -J9- 8.2 That th e court below was on firm ground when it dismissed the appellant's application to amend pleadings upon ordering that the matter would be heard denovo. Counsel relied on the case of Teddy Puta v . Friday Ambindiwire supra and Chongo Stanley Mukuma v David Kangwa. 5 8.3 Counsel submitted that while the Supreme Court in its judgments above held that commencing a trial de novo is to recall witnesses to testify afresh, this does not however extend to amending the pleadings. 8.4 On the 3 rd groun d of appeal, the 2 nd respondent's counsel submitted that the proposed amendments are late in the day considering that trial in the matter had concluded before the late Judge Chali. Counsel relied on the case of Zambia Consolidated Copper Mines Limited v. Chileshe supra. On the discretion to allow amendment of pleadings after the expiry of the limitation period. That the same will not be allowed unless it is just to do so under exceptional circumstances. 8.5 Counsel contended that there is nothing exceptional about the appellant's case to warrant the amendments it seeks more so as the appellant only sought to bring its amendments in 2021 having commenced this matter in 2013. 8.6 Thus, counsel urged us to dismiss the entire appeal. -JlO- 9.0 APPELLANT'S HEADS OF ARGUMENT IN REPLY 9.1 In the arguments in reply filed on 16th December, 2022, the appellant started by replying to the respondents' arguments on ground 3. In this ground the appellant's grievance is the dismissal of th e application to amend pleadings without regard to the merits and nature of the proposed amendments and law that a party can amend its pleadings at any stage before trial is concluded. 9.2 Counsel submitted that contrary to the respondents' submissions that the application to amend came late in the day and that the amendments were prejudicial to the respondents, the lower court did not even consider the merits of the said application. The application was dismissed on the pre-determined position that pleadings cannot be re-opened since the matter had gone through a full trial before another judge. 9.3 On ground 1 and 2 of the appeal, counsel for the appellant repeated his earlier submissions. He submitted that since commencing a trial de n ovo means starting afresh it is inconceivable that one would argue that pleading should be separated from this principle. -Jll- 10.0 ANALYSIS AND DETERMINATION 10.1 We have considered the record of appeal and the arguments made by all the parties concerned. 10.2 The pertinent issue raised in grounds 1 and 2 is whether a Judge hearing a matter de nova could entertain an application to amend pleadings. We shall tackle these two grounds together. 10.3 The term "trial denovo" as defined by Black's Law Dictionary entails a new trial on the entire case where both questions of fact and issues of law are determined as if there had been no trial in the first instance. 10.4 In the case of Teddy Puta v. Ambindwire Friday1 referred to by both parties, the Supreme Court elucidated the meaning of a fresh trial (trial de novo). It simply means that a court shall preside over the trial as though the case was never heard. 10.5 In light of the preceding analysis, we hold that the trial Judge misdirected herself when she took the view that hearing a matter de novo after a full trial does not extend to re-opening of the pleadings but entails that the court should only hear the evidence and then proceed to render a judgment based on the pleadin gs on record. 10.6 For these reasons, we find merit in both grounds 1 and 2. -J12- 10.7 Turning to the 3 rd ground of appeal, counsel for the appellant contends that the law allows for amendment of pleadings at any stage of the proceedings in the interest of justice and fair trial. 10. 8 Order 18 Rule 1 of the High Court Rules provides as follows: "The Court or a Judge may, at any stage of the proceedings, order 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 the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seemjust." 10.9 Order 20 rule 5 (1) of the White Book provides that: "Subject to order 15 rules 6, 7 and 8 and the following provisions of this rule, the court may at any stage of the proceedings allow the plaintiff to -J13- amend his writ. Or any party to amend his pleadings on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct." 10.10 On this premise, we hold that the law allows parties to a suit to apply for amendment of any pleadings at any stage of the proceedings and where the proposed amendments will not prejudice the other side or cause any injustice to the other side, the court may allow such amendments on such terms as to costs or otherwise as may be just. 10.11 Bramwell L. J in the case of Tildesley v. Harper6 stated that: "My practice has always been to give leave to amend unless I have been satisfied that the party applying was action malaflde, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise. However, negligent or careless may have been the first omission, and however late, the proposed amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs." -J14- 10.12 We take the view that, the above-mentioned practice would be appropriate even in cases where trial starts de novo and it should be adopted by courts in this country. 10. 13 We therefore hold that the trial Judge should have in the interest of justice heard the application to amend the pleadings and determined it on its own merits. 10.14 On the aforestated grounds, we allow ground 3 as well. 11.0 CONCLUSION 11.1 All being said, the appeal is allowed and we remit the case to the lower Court for hearing of the appellant's application to amend the pleadings and trial by another Judge. 11.2 Under the circumstances, costs shall abide the outcome of the trial. C. KMAKUNGU COURT OF APPEAL JUDGE F. M CHISHIMBA K. ZENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -JlS-