Orbit Drilling Exploration Limited v Kabango Investments Limited and Anor (Appeal No. 55 of 2021; CAZ/08/447/2020) [2023] ZMCA 424 (15 February 2023)

1 - • IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 55 of 2021 Z /08/447 /2020 ~tl' ll~l,c vF ~uR1 'Jr " , - !IJ, 15 FEB 2023 - ,± .. --.... Mr'f~ . 50067, LU BETWEEN: ORBIT DRILLING EXPLORAmTJF-...;,.-r Appellant AND KABANGO INVESTMENTS LIMITED WILFRED MWANZA 1st Respondent 2nd Respondent CORAM: Makungu., N;gulube and Sharpe-Phiri, JJA on 17th January 2023 and 15t h February 2023 For the Appellant: Ms. W. Chirwa of J&M Advocates For the Respondents: Mrs. M. C. Chilufya of Mosha & Company JUDGMENT SHARPE-PHIRI, JA_, delivered the ,Judgment of the Court Legislation referred to: 1. The Court of Appeal Act, No. 7 of 2016 of the Laws of Zambia 2. The High Court Act, Chapter 27 of the Laws of Zambia 3. The Constitution of Zambia, (Amendment) Act, 2016 4. The Rul,es of Supreme Court Practice (White Book) 1999 Edition 5. The Legal Practitioners' Practice Rules, SI No. 51 of 2002 Jl Cases referred to: 1. Garrard v Email Furniture Pty Limited (1993) NSWLR 2. Standard Chartered Bank (Z) Plc v Banda Appeal No. 94 of 2 015f201 7] ZMSC 3. Kapoko v The People 2016/ CC/ 0023 4. Cropper v Smith (1883) 26 Ch D. 700 5. The Republic of Botswana, Ministry of Works, Transport and Communications, Rencean Design Consultants (Sued as a Firm T/ A KZ Architects) v Mitre Limited SCZ judgment No. 2 of 1995 6. Harkness v Bell's Asbestos and Engineering Limited (19966) 3 ALL ER 7. Duru v Ladipo (2016) ALL FWLR (Pt. 840) 1348 at 1372, para A (C. A) 8. DE Nkhuwa v Lusaka Tyre Servies Limited fl 977] ZR 43 (SC) 9. Ratnam v Cumarasamy and Another f 1964] 3 ALL ER 916 935 10. Finance Bank Zambia Limited v Dimitrios Monokandilos, Filandraia Kouri (2012) Vo. 1 ZR 484 (HC) 505 11. New Horizon Printing Press Limited v Waterfield Es tates Limited and Commissioner for Lands (2012) Vol. 1 ZR 268 (HC) 12. Allen v Sir Alfred Mc Alpine and Sons Limited f1968f 2 QB 229 245 13. Barclays Bank (Zambia) Limited v Walisko and Company and Mohamed Ashraf Mansoor fl 980] ZR 7 9-10 per Sakata J 14. Chikuta v Chipata Rural Counci l f1974] ZR 241 (SC) 15. Zambia Revenue Authority v Shah (2001) ZR 60 16. Major Lubinda Sawekema v Watson Ngambi and Attorney General 2004/ HP/ 166 Other authorities referred to: 1. Halsbury's Laws of England, 4 th Edition, Vol 3 7 1.0 INTRODUCTION 1.1 This is an appeal against the ruling of Musona, J of the Commercial Division of the Lusaka High Court delivered on 30th November 2020. By that decision, the trial Judge ruled that the Plaintiff (now Appellant in this matter) had not complied with the Orders for Direction issued by Court and as a result, inspection of documents was not carried out as ordered. J2 1.2 The learned Judge found that the Plaintiff had failed to prosecute its case and that the Commercial Court should not allow delays from parties. Having made this finding, the Judge proceeded to dismiss the case for want of prosecution. 1.3 The parties shall in the first part of this judgment be referred to as they were in the Court below and thereafter as they are now. 2.0 BACKGROUND 2.1 The brief background of the matter is that sometime in March 2019, the Plaintiff and the 1st Defendant entered into an agreement in relation to the Plaintiffs machinery for mining operations. According to the Plaintiff, the 1st Defendant leased its machinery to drill boreholes in mining sites and community areas as well as for project management, supervision, and drilling of blast holes. 2.2 The Plaintiffs further contention was that it carried out the works for which it was contracted and issued invoices to the 1st Defendant for the sum of US$142,800, but despite reminders, the 1st Defendant has failed to settle the amounts due. 2.3 According to the Plaintiff, the 2 n d Defendant, as shareholder and director of the 1s t Defendant company, was fully aware of the dealings and the fraudulent misrepresentation made during J3 their dealings, and this warranted the lifting of the corporate veil so that the 2 nd Defendant is held personally liable for the sums owed to the Plain tiff. 2.4 The Defendants, on the other hand, maintained that the agreement between the parties was a partnership. The principal terms of their partnership were that the parties were to jointly contribute resources and expertise to mine manganese, market and export it. 2.5 The Defendants contended that in line with this agreement, the Plaintiff would be paid a US Dollar amount, which would be agreed upon, per ton of manganese exported. 2.6 The Defendants further averred that pursuant to their agreement, the Plaintiff delivered machines which were of low capacity and not capable of executing the tasks they were intended for, and as a result, the machinery was rejected by the Mine Engineer. The Plaintiff was advised to demobilize its machinery. Consequently, the machinery was never used on the project. 2.7 Further, that the Defendants did engage the Plaintiff to drill 4 boreholes and they undertook to pay for these works. However, the Plaintiff had not yet availed the 1st Defendant with the invoices for the drilling. J4 2.8 The Defendants maintained that during the subsistence of the partnership between them, the Plaintiff connived with the Chief Financial Officer of the 1st Defendant to be paid a total sum of $91,600 without any supporting invoices. 2.9 The Defendants also averred that the Plaintiff had acted negligently in carrying out som e of its responsibilities under the partnership, namely, to drill and produce relevant geological reports. As a result of this negligence, the Defendants have suffered losses and damage as they could not market or sell the products without geological reports. 2.10 The Plaintiff commenced an action against the Defendants in the Commercial Division of the High Court on 26 June 2020, by way of Writ of Summons and Statement of Claim, seeking the following reliefs: (i) Payment of the sum of USD 142,800 being the sum due from the 1st defendant for the hiring of its equipment and / or machinery; (ii) Interest on amounts found to be due; (iii) Any other relief; (iv) Costs. 2.11 On 31 August 2020, the learned trial Judge held a scheduling conference wherein Orders for Direction were issued, directing the parties to proceed as follows: JS i. Defence on or before 8 September 2020 before 12:00 hours. ii. Reply on or before 16 September 2020 before 12:00 hours. iii. Discovery on or before 30 September 2020 before 12:00 hours. iv. Inspection on or before 8 October 2020 before 12:00 hours. v. Bundles of documents/pleadings on or before 16 October 2020 before 12:00 hours. vi. Witness statements on or before 30 October 2020 before 12 :00 hours. vii. Skeleton Arguments on or before 6 November 2020 before 12:00 hours. viii. Hearing on 2 December 2020 at 10:00 hours. 2.12 In accordance with the Orders for direction issued by the Court, the Defendants filed a defence and counterclaim on 8 September 2020, seeking the following reliefs: That the Plaintiff renders an account for the US$91,600 received from the 1st Defendant through its Chief Financial Officer, damages for negligence, interest on amounts found to be due, costs. 2.13 The Plaintiff filed its Reply and Defence to counterclaim on 16 September 2020 and the Defendants filed their Reply to Defence to counterclaim on 7 October 2020. The parties duly filed their list of authorities on 24 August 2020 and 8 September 2020, respectively. J6 2.14 On 14 October 2020, the Plaintiffs counsel wrote to the Defendants' Advocates, in which correspondence they referred to an email of 12 Octo her 2020 and unanswered telephone calls with respect to an invitation to the Defendants' advocates to inspect documents. 2.15 The correspondence indicates that the Plaintiffs counsel would be proceeding to file the bundle of documents as ordered by the Court. The Orders for Direction required the parties to file their bundles of documents into Court by 16 October 2020. 2.16 On 15 October 2020, the Defendant's counsel proceeded to file an application to dismiss the matter for want of prosecution on account of non-compliance with the Orders for Direction of the lower Court. 2 .17 The Defendants filed an affidavit in support of the application to dismiss sworn by one Mulenga Chansa Chilufya, an Advocate of the High Court for Zambia in the employ of Messrs Mosha & Company, the firm of legal practitioners seized with conduct of the matter on behalf of the Defendants. In the said affidavit, counsel reiterated the history of the matter from the date the action was instituted until the Orders for Direction were issued by the Court. J7 2. 18 He contended that according to the notes endorsed by his colleague, one Mr. Saili Botha who attended before the learned trial Judge for the scheduling conference, the Plaintiffs counsel was directed to file the formal Orders for Direction for the Court's endorsement. 2.19 The deponent contended that however, the Plaintiffs advocates had not done so in defiance of the Court's order and to the prejudice of the Defendants, who had not had the opportunity to view the Orders for Direction. Counsel also contended that the Plaintiffs counsel had failed to facilitate inspection of documents on or before the 8 October 2020 (as directed by the Court) and only invited them to inspect the documents 4 days after the date set for inspection had expired. He further submitted that the Plaintiffs advocates had failed to make an application for extension of time. 2.20 Further, that the failure by the Plaintiffs advocates to offer inspection of documents within the stipulated time led them to believe that the Plaintiff did not wish to prosecute the action. He urged the Court to dismiss the action for want of prosecution. 2.21 The Plaintiff defended the application by filing an affidavit in opposition on 26 October 2020 sworn by Debasish Dey, the Managing Director of the Plaintiff company. He stated that the Court did not, at the time of issuing its Orders for Direction, J8 direct the Plaintiff to file formal Orders for Direction. He also stated that the Defendants could not have been prejudiced by the non-filing of formal Orders for Direction as their counsel was present before Court at the scheduling conference when the Orders for Direction were issued. 2.22 The Plaintiffs counsel went on to concede that there was an inadvertent delay on their part in inviting the Defendants for inspection of documents. He averred however, that the Defendants had filed a counterclaim, which amounted to a separate and independent action and the Defendants were therefore also under an obligation to comply with the Orders for Direction and initiate an invitation to the Plaintiff to inspect the Defendants' documents. 2.23 The Plaintiff argued that the non-compliance with the Orders for Direction · in relation to inspection did not warrant the dismissal of the matter for want of prosecution especially as it was evident that the Plaintiff had been taking steps to prosecute the matter. The Plaintiff also argued that the Defendants' failure to respond to its invitation for inspection, albeit 4 days after the time for doing so, indicated that the Defendants had no objection to the documents listed. The Plaintiff argued that in view of the foregoing this was not a proper case to dismiss for want of prosecution. J9 3.0 DECISION OF THE COURT BELOW 3. 1 The application to dismiss the matter wa s heard before Muson a, Jon 30 November 2020. After considering the ap plication , th e learned trial Judge ruled as follows: "I have read what was filed by the parties for and in opposition to this application for an order to dismiss matter for want of prosecution. I note that when orders for direction were issued, both parties were present. However, the plaintiff did not fully comply with the orders for directions as a result of which inspection of documents was not done as ordered in the orders for direction. Worse still, there was no application by the plaintiff for extension of time. This clearly shows that the plaintiffs have not complied with orders for directions. Court orders are not requested. They are not appeals to parties either. They are orders for directions to parties. In order for Court to work efficiently and expeditiously, parties must comply with Court orders. Besides, this is a Commercial Court where this is essential. The Commercial Court should not allow delays from parties. In the circumstances, and subject to the foregoing, I agree that there is failure on the part of the plaintiff to prosecute their case. This case is therefore dismissed for want of prosecution. I order costs in favour of defendants. Leave to appeal is granted". JlO 4.0 THE APPEAL 4.1 Being dissatisfied with the said ruling of the learned Judge of the High Court, the Plaintiff (hereafter 'the Appellant') filed a Notice of Appeal and Memorandum of Appeal on 30 November 2020. 4.2 The Appellant advanced 3 grounds of appeal as follows : i. The learned Puisne Judge erred in law and fact when he held that there was failure on the part of the Plaintiff to prosecute the case when the record clearly shows steps taken by the Plaintiff in prosecuting the matter. ii. The learned Puisne Judg·e erred in law and fact when he dismissed the Appellant's (Plaintiff's) entire meritorious claim over a minor technicality. Thus, the lower Court Judge failed to address his mind to the provisions of Article 118(2}(e} of the Constitution of Zambia, Chapter 1 of the Laws of Zambia. iii. The learned Puisne Judge erred in law and fact when he failed to take into consideration the evidence presented before him and also failed to acknowledge the fact that by virtue of the Respondents' filing in a counterclaim, they also became duty bound to prosecute their claim and therefore ought to have taken the necessary steps to ensure that discovery of documents was conducted within the prescribed time. Jll 5.0 ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 The Appellant filed its heads of argument on 29 March 2021. [n relation to ground one, it was argued that the learned trial Judge erred when he held that the Appellant had failed to prosecute the case when the record clearly showed the steps it had taken to prosecute the matter. 5.2 Counsel argued that inspection of documents was scheduled to be conducted on or before 8 October 2020, but the Appellant omitted to engage the Respondents before the said date to undertake inspection. That notwithstanding this, he endeavoured to invite the Respondents' advocates by way of email and telephone on 12 October 2020 before the time for filing of the bundle of documents had elapsed. However, the Respondents opted not to respond to the Appellant's invitation and therefore counsel assumed that there had been no objection to the list of documents. 5.3 The Appellant's counsel contended further that upon not receiving a response, he proceeded to notify the Respondents' counsel in writing on 14 October 2020 that the Appellant understood the non-response to mean that the Respondents had no objection to the documents listed in the Plaintiffs list of documents and as the deadline for fifing the bundle of J12 c:locuments was drawing close, they would proceed to file the said bundle into Court. 5.4 The further contention is that although the Appellant had failed to invite the Respondents for inspection of documents on 8 October 2020, it had done so on 12 October 2020. Therefore, the Appellant had clearly made attempts to conduct inspection between the 12th and 15th of October 2020. That therefore the Appe]lant had not failed to invite the Respondents for inspection, although not on the date directed by the Court. In any event this was still within the period before the bundle of documents were due to be filed into Court. 5.5 The AppeUant further submitted that the actual physical inspection of documents would have been conducted had the Respondents' advocates been courteous enough to respond. Further, in the alternative had the Respondents been courteous and relayed their disagreement to conduct the inspection out of time, the Appellant would have made the necessary application to extend time before the High Court Judge. 5.6 The Appellant's counsel argued that the Appellant had not shown any signs of not wanting to pursue its action against the Respondents. ]t had in fact taken the necessary steps to prosecute the matter. Therefore, the application to dismiss for J13 want of prosecution was inappropriate and the subsequent order of dismissal was improper. 5. 7 The Appellant argued that the Respondents ought to have responded to the Appellant's invitation to attend for inspection and clearly communicated with the Appellant their position on whether they were willing to inspect the documents out of time. Counsel further submitted that the legal profession calls for courteous communication and he cited the case of Garrard v Email Furniture Pty Limited1 to aid his contention. 5.8 Counsel further stated that whilst the Rules of Court are there to guide parties to proceedings and ought to be followed, the Court could not take away human error as the legal system is run by human beings, who are imperfect and forgetful. The Appellant cited the case of Standard Chartered Bank (Z) Pie v Banda2 to support this argument. 5 .9 The Appellant's counsel further cited Practice Note 25/L,/ 2 of the Rules of the Supre me Court (RSC), White Book (1999 Edition) on the principle of dismissal for want of prosecution. He submitted that the learned authors of the White Book guide on the circumstances when an action may be dismissed for want of prosecution. This includes where a party has been guilty of intentional default and there has been inordinate delay. J14 Counsel argued that in the present case, there was no intentional default nor was there inordinate delay to conduct inspection. 5.10 Counsel also cited Order XIX Rule 3(2) U) and (1) of the High Court (Amendment) Rules 2020 and submitted that the Court failed to consider these provisions, which encourage the parties and the Court to proceed in an amicable manner that advances justice. Further, that the decision of the learned Judge in the Court below to dismiss the matter on a minor procedural and non-prejudicial error cannot be justified. 5.11 Further, the contention is that the failure by the learned Judge to objectively weigh the avenues of what advances the most justice when dealing with an application to dismiss an action on a technicality has caused great cost to the Appellant and has caused huge delay in the matter being heard on its merits. 5.12 In relation to ground 2, the Appellant argued that the learned trial Judge erred when he dismissed the entire action on a minor technicality and thus failed to consider the provisions of Article 118 (2 )(e ) of the Constitution of Zambia . 5.13 Counsel cited the case of Kapoko v The People3 where the Constitutional Court held that: JlS "Article 118(2)(e) is not intended to do away with existing principles, law and procedures, even where the same constitutes technicalities. It is intended to avoid a situation where a manifest injustice would be done by paying unjustifiable regard to a technicality." 5.14 Counsel argued that a manifest injustice was done to the Appellant when the High Court Judge paid unjustifiable regard to a minor technicality. The case of Cropper v Smith4 was cited which, according to the Appellant's counsel, guided as follows: " ... I know of no ki.nd of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy." 5.15 Counsel also contended that no prejudice would have been occasioned to the Respondents had the inspection been conducted out of time . He argued further that the defect that occurred in the Court below ought to have been treated as a curable irregularity. The Court's attention was drawn to the case of The Republic of Botswana, Ministry of Works, Transport and Communications, Rinceau Design Consultants (sued as a firm) T / A KA Architects v Mitre Limited5 where the Supreme Court stated that: "The High Court Rules were rules of procedure and were therefore regulatory and any breach should be treated as a mere irregularity which is curable. " J16 5.16 The case of Harkness v Bell's Asbestos and Engineering Limited6 was also cited in support. 5.1 7 Counsel concluded by arguing that the learned Judge in the Court below did not consider if his decision was fair; whether the delay was inordinate; if dismissing the matter over a minor technicality was justifiable; whether to order the Appellant to comply and condemn it to costs; that there was a counterclaim on the record which in effect made the Respondents become Plaintiffs, the Rules of natural justice, encouraging the parties to co-operate in the conduct of proceedings, he did not consider what possible prejudice the Defendants would have suffered (if any) and he did not consider what cause of action would do the most justice. 5.18 In relation to ground 3, the Appellant argued that the learned trial Judge erred when he failed to recognize that the Respondents had filed a counterclaim and were thus duty bound to take steps to ensure that discovery of documents was conducted within the time prescribed. Counsel referred to Order 15 Rule 2 of RSC with respect to counterclaims and contended that there was no specific obligation placed on either party to conduct discovery and inspection but that it was mutual and ought to have been done simultaneously. J17 6.0 RESPONDENTS' HEADS OF ARGUMENT 6.1 The Respondents filed their Heads of Argument on 20April 2021. In relation to ground 1, counsel argued that the Appellant had an obligation to prosecute a matter within the period given in the Court's Orders for Direction and that if difficulties were encountered, the Appellant had a duty to make an application for enlargement of time. That litigation must come to an end, and it was undesirable for the Respondents to be kept in suspense because of dilatory conduct on the part of the Appellant. That the Appellant alleged that it took the necessary steps in prosecuting the matter since Order LIii Rule 7 of the High Court Rules was instructive on how parties that have commenced an action on the commercial list ought to conduct themselves. 6 .2 Counsel relied on Order XL Rule 3 of the High Court Rules to support their contention. Counsel argued further that the Appellant filed the originating process on 26 June 2020 and yet it only served the Respondents on 24 August 2020, almost 2 months after commencement. According to counsel, this left the Respondents with only 5 working days to secure representation before the scheduling conference, which was held on 31 August 2020. J18 6.3 With regard to the argument that the Respondents, having tendered their counter-claim also in effect became Plaintiffs charged with a duty to prosecute their claim and thus ought to have taken the necessary steps to conduct inspection, counsel submitted that it is trite that by nature, a counter-claim is a distinct action; it is separate and has a life of its own and survives even where the substantive action is struck out or dismissed by the Court. That this was established in the case of Duru v Ladipo 7 • 6.4 In relation to ground two, the Respondents' argument was that when orders or judgments are issued by the Court, they should be adhered to strictly as a general rule. That the exception lies in making the requisite application to either extend time, vary the order or judgment or alternatively file documents out of time . Further, that Article 118 (2) (e) of the Constitution cited by the Appellant does not have a blanket application to litigants who choose to disregard court orders or judgments. 6.5 Counsel argued further that there was a failure on the part of the Appellant to conduct inspection of documents within the time frame. That the rules of Court are designed and directed at ensuring the orderly and expeditious course of litigation proceedings and that all procedural steps during litigation proceedings, are in accordance with the requirements of form and prescribed time limits. J19 6.6 The case of DE Nkuwa v Lusaka Tyre Services Limited8 was referred to where the Supreme Court cited with approval the case of Ratnam v Cumarasamy and Another, 9 in which the following observations were made by Lord Gust: "The Rules of Court must prima facie be obeyed and in order to jus tify a court extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discreti,on. If the law were otherwise, a party in breach would have an unqualified right to an extension of t i me which woul.d defeat' the purpose of the Rules which is to provide a time table for the conduct of litigation. " 6. 7 Further in support, counsel cited the cases of Finance Bank Zambia Limited v Dimitrios Monokandilos, Filandraia Kouri1°, New Horizon Printing Press Limited v Waterfield Estates Limited and Commissioner for Lands 11 and Allen Sir Alfred Mc Alpine and Sons Limited. 12 6.8 In opposing ground three, the Respondents argued that the general principle relating to commencement of proceedings is that an Act of Parliament or rule made thereunder prescribes how a s uit may be commenced. Where an Act has specifically laid down the method by which proceedings m u st be begun, whether by writ, originating s ummons or originating notice of motion, there is no choice on which procedure to adopt, as was held in the case of Barclays Bank (Zambia) Limited v Walisko J20 and Company and Mohamed Asorf Mansoor. 13 Further, that this principle was also laid down by Doyle CJ in Chikuta v Chipata Rural Council14, which case identified four modes of commencement namely: Writ of summons and statement of clai.m, Originating summons, Originating notice of motion and Petition. 6.9 Further, that a counter-claim in the circumstances cannot be prosecuted in the absence of a writ or statement of claim originating the action, as it amounts to initiating a claim by way of counter-claim contrary to the modes of commencement established in the Chikuta case. That contrary to paragraph 4 .7 of the Appellant's heads of argument, there was no law to support partial discovery of documents and that this ground of appeal ought to be dismissed . The Respondent urged us to uphold the judgment of the lower Court. 7.0 HEARING OF THE APPEAL 7 .1 The appeal was heard on 17 January 2023. Both sides were represented by their counsel. The parties relied on the Heads of Arguments before Court. J21 8.0 OUR DECISION AND ANALYSIS 8.1 We have carefully considered the evidence on record and the parties' respective arguments in relation to the appeal. There are essentially 3 grounds of appeal before us as set out earlier in paragraph 4.2. 8.2 Having reviewed the grounds of appeal, we are of the view that the following issues arise for our consideration, namely: (i) Whether the Judge ought not to have dismissed the action based on a minor technicality in view of the provisions of Article 118 of the Constitution of Zamb.ia. (ii) Whether the Appellant had failed to prosecute its matter in the Court below to warrant the dismissal of the act.ion. (iii) Whether the Respondents, having filed a counterclaim, were also duty-bound to take steps to ensure that discovery of documents was conducted within the prescribed time. 8 .3 Before addressing these issues, a review of the background leading up to this appeal as stated in the earlier part of this judgment, shows that following a scheduling conference, the learned trial Judge issued Orders for Direction on 31 August 2020, which inter alia ordered filing of a reply by 16 September J22 2020 and discovery of documents by 30 September 2020 to be followed by inspection of documents on or before 8 October 2020. The order also made provision for the filing of bundles of pleadings and documents by 16 October 2020. 8.4 Pursuant to the said directions, the Appellant filed its Reply and Defence to counterclaim on 16 September 2020 and the Respondents filed a Reply to the defence to counterclaim on 7 October 2020. However, the parties did not meet for inspection of documents on Thursday 8 October 2020 as directed by the Court. There was no communication between the parties' respective advocates in relation to inspection of documents as at the date set by the Court. 8.5 It is undisputed that the Appellant's advocates did endeavor to reach the Respondents' advocates Messrs Mosha & Company to arrange for inspection of documents several times by telephone and email correspondence soon after the deadline specifically on the Monday, 12 October 2020, but all communication went unanswered. 8.6 The evidence on record reveals that not having had a response from the Respondents' advocates, and the time for filing of the bundle of pleadings and documents soon approaching, the Appellant's counsel notified the Respondents' advocates via letter of 14 October 2020, (see exhibit at page 68 of the Record J23 of Appeal) that the Appellant would proceed to file the bundles without inspection. The letter was stamped as having been received by the Respondents' advocates on the said date. 8.7 Despite receiving and not responding to this correspondence, the Respondents opted to proceed to file an application to dismiss the action for want of prosecution on 15 October 2020 contending, amongst others, that the Appellant had failed to comply with the orders requiring inspection of documents. 8.8 In the said application, the Respondents' counsel further contended that the Appellant was attempting to deprive the Respondents of their right to inspect the documents. 8.9 Although the Appellant opposed the application to dismiss for want of prosecution and endeavored to show the Court the steps it had taken to prosecute the matter since the Orders for Direction were issued, the Court found that the Appellant had failed to comply with the Orders for Direction and dismissed the action. The appeal against this finding is the matter before us. 8.10 We now turn to address the first two issues that arise from the Appellant's grounds of appeal simultaneously. Firstly, whether the trial Judge erred in dismissing the action on a minor technicality, notwithstanding the provisions of Article 118(2)(e) of the Constitution of Zambia which direct a Court not to have J24 undue regard to technicalities. Secondly, whether the proceedings in the Court below warranted dismissal for want of prosecution. 8.1 1 The R:espondent began by contending that they were prejudiced by the Appellant's failure to file a typed-out Orders for Direction and call them for inspection of the Appellant's documentation on the date set by the Court. However, a review of the proceedings before the lower Court at pages 144 to 145 of the Record of Appeal, do not reveal that the Appellant was directed to file a formal Order.. 8.12 Moreover, the record also shows that the Respondents' advocate was before Court at the schedulin g conferen ce when the Orders were issued by the trial Court. Hence, the Respondents were fully aware of the directions issued by the Court. Therefore, they could not have been prejudiced in any way whatsoever by the non-filing of a formal Order s for Direction. 8. 13 The application before the lower Court to dismiss for want of prosecution was brought pursuant to Order 41 Rules 3 and 4 of the High Court Rules, Chapter 27 of the Laws of Zambia. 0 .rder 41, . Rule 3 which provides as foUows: "3.. If any p .arty fails t o complly with any order to answer int err,ogatfons, o .r for d isco:ve·ry ,o.r i nspection of documents, he sha ll .be liable to :atta ch ment . He s h all also, if a plaintiff, be J25 liable to have his action dismissed fo,r want of prosecution, and if a defendant, to have his defence, if any, strock out, and to be placed in the same position as if he had not defended, and. the party interrogating or requiring discovery or inspection of documents may apply to the Court or a Judge for an order to that effect, and an order may be made accordingly." 8 . 14 Similarly, Order 24 Rule 16 of the Rules of the Supreme Court of England states as follows : "If any party who is required by any of the foregoing roles, or by any order made thereunder, to make discovery of documents or produce any documents of inspection or any other purpose or to supply copies thereof,fails to comply with any provisions of that role or with that order, as the case may be, then without prejudice, in the case of a failure to comply with any such provision, to roles 3(2) and 11(1), the Court may make such order as i.t thinks just including, in particular, an order that the action be dismissed, or as the case may be, an order that the defence strock out and judgment entered accordingly." 8.15 Further, the learned authors of Halsbury's Laws of England, 4 th Edition, Vol 37 state at page 336 paragraph 44 7 that, "The Rules of the Supreme Court contain express provisions empowering the Court to dismiss an action for want of prosecution on default of service of a statement of claim, on default in discovery or production of documents .... " J26 8.16 The foregoing prov1s10ns are clear. A Court has inherent jurisdiction to m a ke any order it deems fit where there has been failure to comply with an Order of the Court, including dismissal of an action. 8.1 7 The main principles to be applied in respect of dismissal of actions for want of prosecution are set out in Practice Note 25/L/2 RSC wh ich provides that: "There are two distinct, though related circumstances in which an action may be dismissed for want of prosecution, namely: (a) When a party has been guilty of intentional and contumelious default, and (b) Where there has been inordinate and inexcusable delay in the prosecution of the action. " 8.18 Similarly, as cited by the Appellant's counsel, in Allen v Sir Alfred Mc Alpine and Sons Limited,1 2 the Court held that: "A Defenda.nt may apply to have an action dismissed for want of prosecuti on and must show that there has been inordinate delay and that the said i nordinate delay is inexcusable and that the Defendants are likely to be seriously prejudiced by the delay. " J27 8.19 The learned authors of Halsbury's Law ,of England also state at paragraph 448 that, in addition to the powers to dis.miss an action under the Rules of the Supreme Court, the Court has inherent jurisdiction to dismiss an action for want of prosecution where there has been prolonged or inordinate and inexcusable delay in the prosecution of the action causing or likely to cause serious prejudice to the defendant or giving rise to substantial risk that a fair trial would not be possible. 8.20 The above principles provide guidance on the circumstances when a matter could be dismissed for want of prosecution. These include instances where a party has been guilty of intentional and contumelious default and or inordinate and inexcusable delay in the prosecution of the case. The significance of the foregoing is that a Defendant applying to dismiss an action before a Court, must show that there has been inordinate delay by a Plaintiff, that such delay is inexcusable, and that the Defendant will be seriously prejudiced by such delay. 8.21 The history of the matter before us has clearly been elucidated earlier. The Order of the Court made on 31 August 2020 required the parties to meet on 8 October 2020 for inspection of documents. This did not take place. Neither party invited the other for inspection on the said date .. The Appellant only communicated with the Respondents on 12 October 2022, 4 J28 days after the date set for inspection. The Appellant conceded that there was an inadvertent delay on their part to call the Respondents for inspection of their documents. 8.22 In terms of the Rules, the learned Judge in the Court below had the authority to dismiss the matter for want of prosecution for failure to comply with the specific directive of the Court, if satisfied that the actions of the Appellant warranted the dismissal. However, the guidance is instructive on the circu mstances when a matter could be dismissed for want of prosecution. The onus is upon a party applying for dismissal to show that there is inordinate delay in the prosecution of the case. In this case, the Appellant insisted that the delay in complying with the Orders for Direction in relation to inspection of documents was only 4 days and that there was no inordinate delay and hence this did not warrant a dismissal of the action. Considering the facts of this case, we do not believe that the Appellant had been guilty of intentional default, nor could the period of 4 days be considered as inordinate delay. 8.23 The Appellant also argued that the trial Judge ought not to have exercised his discretion in that manner and ought not to have paid undue regard to a minor technicality following Article 118(2)(e) of the Constitution of Zambia as amended by Act No. 2 of 2016 which provides that: J29 "(2 ) In ex·er·cis,ing; judicial auth.orlt y, t h.e Courts shall be guided by the fo l lowing princ ip ·les; fe) J ust:i.ce shall be admin.istered without undue regard to proc edu.ra,l techn.icalit ies "'. 8. 24 The Constitutional Court of Zambia guided further on the question of technicalities in the case of Kapoko v The People3 when it held that: ":Article 1.1 8 f2Jfe) i s n.ot i ntended to do away with existing principles, la,w an.d pro cedu res,, even where the same constitutes technicalities. It is: inte nded to a .void a s i.tuation w her·e a. manifest injustice would be done by p a ying unjus tift.able r·eg'ard to a. technica.lity." 8.25 Given that there was clearly n o intentional default, inordinate or inexcusable delay in the prosecution of the case by the Appellant, we are of the view that the learned trial Judge paid undue regard to a minor technicality, which in our view could easily have been cured. We are of the opinion that there was no prejudice caused to the Respondents whatsoever by the 4 day delay in the invitation for inspection. It was still before the bundles were to be filed .. We hold therefore that the learned J u dge erred in dism issing the action. 8.26 We are fortified in our finding by the decision of the Supreme Court in the case of Standard Chartered Bank, where the Court held that: BO " ... Yet we were also firm ly alive to the fact that rules should generally not be used as minefield for parties who make fairly inadvertent m istakes that translate into no tangib le prej udice to the other party. " 8.27 We agree with the numerous authorities that the Courts have previously propounded including Zambia Revenue Authority v Shah, 15 that matters ought to be heard on their merits. What we have before us is one matter that ought to have been allowed to proceed to trial rather than being dismissed on a minor technicality. The first two grounds of appeal are therefore successful. 8.28 The last issue, which relates to the third ground of appeal, is whether the Respondents, having filed a counterclaim, were also obligated to take steps to ensure discovery was conducted and inspection of the Respondents' documents undertaken. 8. 29 We begin by referring to Order 28 Rule 3 of the High Court Rules, which provides that: "A Defendant in an action may set off, or set up by way of counter claim against the claim of the Plaintiff, any right or claim, whether such set-off or CO"Unter-claim sound in damages or not, and such set off or counter-claim shall have t he same effect as a statement of claim in a cross-action so as to enable t he Court to pronoun.ce a final judgment in the same action, both on the original and on the cross claim. But the Cou.rt or a Judge may, if, in its or h is opinion, s uch J31 set-off or counterclaim cannot be conveniently disposed of in the pending action, or ought not to be all.owed, refuse permission to the d~fendant to avail himself thereto." (emphasis ours) 8.30 It is thus not in dispute that where a Defendant to an action raises a counterclaim, such Defendant is in all respects a Plaintiff for the purposes of the counterclaim. It thus follows that the Respondents, having raised a counterclaim against the Appellant in the action in the Court below, were obligated to equally take full responsibility in ensuring compliance with the Orders for Direction issued by the Court in that action. The Respondents had an obligation to prosecute their claim as per counterclaim, including doing so through ensuring that discovery of documents was conducted within the time prescribed in the Orders for Direction. The third ground of appeal therefore succeeds for the said reason. 8.31 It would be amiss for us to conclude without commenting on the conduct of the legal practitioner from the firm of Messrs Mosha & Company, one Mulenga Chansa Chilufya representing the Respondents in this matter. We do not consider that counsel for the Respondents acted properly in the Court below. As a start, counsel did not respond to correspondences from the Appellant's counsel. The record reveals that counsel for the Appellant made several attempts to reach the Respondent's counsel on 12 October 2020 by telephone and email, and again on 14 October 2020. J32 . . Counsel was aware of the invitation for inspection as the letter of 14 October 2020, was stamped as received by counsel's chambers. This fact was not disputed by counsel for the Respondents. Despite this, counsel did not respond to her counterpart in relation to an important matter that required complying with Orders for Direction issued by the Court, under which she serves as an officer. She instead proceeded the next day to apply to dismiss the action for want of prosecution on the basis of an allegation tha t she had not been invited for inspection of documents. 8.32 Rule 38 of The Legal Practitioners Practice Rules, 2002, which governs the conduct of legal practitioners, requires and implores practitioners to treat professional colleagues with utmost courtesy and fairness in relation to matters before the Court. 8.33 The foregoing authority is plain and unambiguous. A legal practitioner must act with courtesy and fairness towards fellow counsel. This was the holding in the case of Major Lubinda Sawekema v Watson Ngambi and Attorney General16 where Matibini, J held that: "In every sphere of practice, counsel must be courteous to the Court and all those with whom h.e has professional dealings. " J33 I • Despite being a higher Court, which is not bound by the holding of a lower Court, we could not agree more with the sentiments of Matibini, J as he was then, when he stated that counsel must be courteous to all those with whom he has professional dealings. 8.34 [t is dear that a legal practitioner .must be courteous to his fellow counsel. Counsel has a duty to conduct oneself in an honest, credible., and reliable manner towards fellow counsel in relation to matters before Court. Counsel must also act conscientiously, diligently and must take reasonable steps to avoid unnecessary expense or waste of the Court's time. 8.35 To the contrary, on 15 October 2020, counsel for the Respondents breached her duties stated above by employing sharp practice in hurrying to apply for dismissal of the matter for want of prosecution instead of responding to correspondence from her coHeague seeking to ensure compliance with orders of Court, a situation which she could be said to have willfully engineered by her discourteous conduct. 8.36 The Respondents' counsel also alleged that the Appellant had not taken steps to prosecute its matter. This was inaccurate and ought not to have been made by counsel given that they had been invited to inspect the Appellant's documents the previous day. We are of the view that the Respondents' application to B4 • I dismiss for want of prosecution brought on 15 October 2020, soon after being invited for inspection of documents was unnecessary, a waste of th e Court's time and indeed caused unnecessary expense to the parties. 8.37 Further , this Court has also observed from the record before us at pages 64 to 66, that counsel for the Respondents included in the Respondents' application to dismiss the action in the Court below for want of prosecution, a statement to the effect that the Appellant wa s a ttempting to deprive the Respondents of their right to inspect. This statement was inaccurate and misleading as there was clearly no intention to deprive the Respondents of the opportunity to inspect the Appellant's documents given that the Appellant's advocates h ad invited the Respondents for inspection of documents on 12 and the 14 of October 2020. 8.38 In the case of Garra.rd v Email Furniture Pty Limited the Court pronounced that: "Those members of the legal profession who seek to win a momentary advantage for their clients without observing the proper courtesies in.vite correction by the court and disapproval of their colleagues ... To the extent that solicitors act in this way, they run the risk of destroying the confidence and mutual respect which generally distinguishes dealings between members of the legal profession from other dealings in the community." J35 8.39 This is one such case that invites the Court to frown upon the conduct of counsel for the Respondents for attempting to win momentary advantage for her client without observing proper courtesy to counsel. This action by counsel has indeed not only caused an unnecessary expense to the parties and been an attempt to obstruct the fair administration of justice but has also wasted the Court's limited time and resources. 8.40 At a time that the Courts are grappling with dismantling backlog of cases and striving to attain speedy but efficient dispensation of justice in our jurisdiction, it is regrettable that as an officer of the Court, counsel for the Respondent adopted such conduct. We therefore admonish the Respondent's counsel strongly. It is our hope that counsel, and every like-minded practitioner will not bring unjustifiable and unnecessary applications before Court which do not seek the ends of justice. 9.0 CONCLUSION 9 .1 In view of the foregoing and the success of the grounds of appeal, we order that the Ruling of the learned Judge of the High Court of 30 November 2020 be and is hereby set aside. The matter shall proceed for hearing before a different Judge of the Commercial Division of the Lusaka High Court. J36 9.2 In view of the improper conduct of the Respondent's advocate, we order her to personally bear the costs of this appeal. The costs are to be taxed in default of agreement. C. K. Makungu COURT OF APPEAL JUDGE P. C. M. Ngulube COURT OF APPEAL JUDGE ~ - 'P e . - ii{ Sharp~-Phiri COURT OF APPEAL JUDGE J37