Attorney General v Rodger Masuaso Alivas Chongwe (APPEAL NO. 166/2021) [2021] ZMCA 265 (28 October 2021)

IN THE COURT OF APPEAL OF ZAMBIA . HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 166/2021 BETWEEN: THE ATTORNEY GENERAL AND . RODGER MASAUSO ALIVAS CHONGWE RESPONDENT CORAM: CHISHIMBA, NGULUBE AND SIA VWAPA JJA. On 23rd September and 28th October 2021 FOR THE APPELLANT: MR. F. IMASIK , DEPUTY CHIEF STATE ADVOCATE, ATIO RNEY GENERAL'S CHA BERS 1 OR THE RESPONDENT: MR. A. M. HAMIR SC OF SOLLY PATEL HAMIR AND LA WREN CE JUDGMENT SIAVWAPA, JA delivered the Judgment of the Court. Case referred to: 1. Charles Kajimanga v Marmetus Chilernya Appeal No. 5 0 of Le. islatio.n re. erred to The Rules of the Supreme Court 1999 ed itio n (White Book). 1. 2 . Compensation Fund A ct No. 43 of 2 0 16 of the Laws of Zambia. 3. Halbsbury's Law of England 4 th Edition Vol. 13. 1.0 INTRODUCTION l. l. This appeal 1s against the Ruling of Mr. Justice Bonaventure C. Mbewe, Judge of the High Court, dated 10th December 2020 by which h e ordered the Appellant to produce documents requested by the Respondent for inspection and discovery. 2.0. BACKGROUND 2.1. The Ruling appealed against arose from an application by the Respondent for production and inspection of documents. The application was by summons supported by an affidavit and it was made pursuant to Order 24 rules 2 / 7, 2/9; 2/ 10; 2/ 11; 3/5; 3/7, 7; 0/8; 12 and 13 / 1 of the Rules of the Supreme Court 1999 edition. 2.2. The application was filed into Court on 10th December, 2019 following a final Judgment delivered by Mr. Justice Sunday B. Nkonde SC on 22 nd February 20 19. 2.3. The documents relating to the application as set out in the summons are as follows; 1. The letter Attorney-General Mumba Malila, SC had written to the Secretary to the Treasury to find the money to pay the Plaintiff in settlement of his claim in October, 2009. 2. The ~eports concerning the activities of the Compensation Fund Committee including the documents J2 appended thereto that the Committee submitted to the Minister pursuant to Sections 22 (1) and 22(2) (a) (b) and (c) of the Compensation Fund Act for the Financial years 2017, 2018 and if submitted at the time the Court adjudicates, thereon also for the year 201 9. 3. All books, papers, copies of letters, memoranda and other writings and doeu,ments in the defendant's custody, possession or powers containing any entry, memoranda or minute: (a) The Ministry of Justice and/ or the Attorney General Chambers wrote and sent to the Secretary to the Treasury and/ or the Compensation Fund Committee or other public functionary directing him or them to pay the Plaintiff the Judgment debt following the Judgments of the High Court delivered on 24th March 2016 and 22nd February 2019 and the Judgment of the Supreme Court of 22nd June 2017 or to enable the defendant include the amount in the said Judgment in its budget or financial plan for the years fallowing or succeeding 2016 to 2019 and any replies thereto. (b) The Compensation Fund Committee submitted to the Ministry of Justice and or the Ministry of Finance showing Government's annual total liability arising from any and all potential claims, Judgment debts and claims the Attorney-General J3 agreed to settle for the Financial years 201 7, 2018 and 2019 for inclusion in the budgetary provision for settlement in the current or ensuring years and any replies thereto including reference to the amount annually approved for inclusion in the budget for the ensuring years (2016 to 2020). (c) The Secretary to the Treasury and or the Compensation Fund Committee or any other designated public functionary included the Judgment debts referred to in paragraph 8 (b) (i) aforesaid in its submissions or requests to the proper authority for funding from the budget for the succeeding year/ s to settle the defendant's liability to the plaintiff (d) The money parliament approved to allocate to the Compensation Fund Committee or to the Ministry of Finance for the years in issue as aforesaid and the amounts of money parliament actually allocated and released to the Compensation Fund Committee, the Ministry of Finance or other authority to settle the Judgment debts and claims against Government. 3.0. DECISION OF THE HIGH COURT 3.1. Upon considering the arguments for and against the application, the learned Judge formed the view that the documents requested for were relevant to the proceedings at J4 the stage they had reached and further that the law provided for discovery and inspection of documents. 3.2. The learned Judge also drew from the Compensation Fund Act No. 43 of 2016, the principles of Transparency Accountability and Equity for payment out of the Fund. 3.3. The learned Judge accordingly ordered the production and inspection of the documents requested by the Appellant and other relevant documents within forty (40) days of the order. 4.0. THE APPEAL 4.1. Unsettled by the Court's order for production and inspection of the requested documents, the Appellant filed a Notice and Memorandum of Appeal on 20 th April 2021. 4.2 . The Memorandum of App al contains three grounds of appeal set out as follows; 1. The learned Judge erred in both law and fact when he ruled that production and inspection can be held at any time during proceedings even after Judgment has been delivered. 2. The learned Judge erred in both law and fact when he ruled that there was no evidence of an intention on the part of the defendant to satisfy the Judgment of the Court. 3. That the learned Judge erred in both law and fact when he awarded costs to the Plaintiff when it was not necessary to order production and inspection as the documents will JS not give litigious advantage to the party seeking inspection. 5.0. APPELLANT'S ARGUMENTS 5.1. In support of the appeal, the Appellant filed heads of argument on 29 th July 2021 citing the Compensation Fund Act, the Rules of the Supreme Court 1999 edition and the case of Charles Kaiimanga v Marmetus Chilemya 1 as authorities for the arguments. 5.2. The gist of the Appellant's arguments in support of the first ground of appeal is that the cited authorities an speak to discovery and inspection of documents by order of the Court for the purpose of preparing for trial. 5.3. Further that Order 24 rule 16 of the White Book, as cit din the Kaiimanga case, prescribes dismissal of the action or striking out the defi nee and entry of Judgm nt as some of the consequences of failur to comply with an Order for discov ry of documents. 5.4. Ind aling with Orders 24/3/5, 24/2/11, 24/2/1, 24 rules 7 and 12 and 24/08/ of the Rules of the Supreme Court, 1999 edition, which provid for discr tion and wide powers to the Court in ordering discovery; and further that the Court can ord r discov ry in aid of xecution of Judgment, it is argued that the Compensation Fund Act No 43 of 2016 J6 provides for execution and settlement of any Judgment against the State. 5.5. In aid of ground two, the argument is simply that the Appellant received part payment in accordance with the Compensation Fund Act. 5. 6. The argument in support of ground three is that even though the Court has discretion to order costs in interlocutory and final orders, the Court did not exercise its discretion judiciously in this case as the production and inspection did not give any litigious advantage to the Respondent. 6.0. RESPONDENT'S ARGUMENTS 6. L The Respondent has argued the first ground with much energy firstly to show that the Appellant failed or refused to comply with orders for discovery and inspection made 1n causes 0183 and 0499, both of which were decided 1n favour of the Respondent. 6.2. Secondly, the argument endeavoured to show that there is sufficient authority for the granting of an order for discovery and inspection post Judgment. 6.3. This limb of the argument is based on Order 24 of the Rules of the Supreme Court 1999 edition as well as Halbsbury's Law of England 4 th Edition Vol. 13. J7 6.4. Grounds 2 and 3 were subject of very brief submissions to the effect that the learned Judge was guided by the evidence of non-payment and the rule that costs follow the event respectively. 7.0. OUR ANALYSIS AND VIEWS 7. 1. Our consideration of the appeal clearly reveals that the Appellant was uncomfortable with the Order that he should make discovery of the documents requested for by the Respondent. 7 .2. The Appellant's main argument is that discovery and inspection are by and large; a pre-trial procedure made or ordered after the filing of p leadings. It has however 1 been conceded that discovery and inspection may occur post Judgment for the purpose of aiding its execu t ion. 7.3. We note that both parties have placed reliance on Order 24 of the Rules of the Supreme Court 1999 edition which deals with Discovery and Inspection of Documents. 7.4. According to the Editorial Introduction to Order 24/ 0 /2, paragraph 2, "The obtaining of discovery of documents in a proper case" always was according to English law, a rig ht as between subject •and subject. It is a right which continues to exist unless taken away." J8 7.5. In that regard, Or der 24 Rule 1 (1) provides as follows ; <~After the close of pleadings in an action begun by writ there shall, subject to and in accordance with the provisions of this order, be discovery by the parties to the action of the documents which are or have been in their possession, custody or power re la ting to matters in question in the action." (underlying ours for emphasis). 7.6. Further, Rule 2 (1) provides as follows; "Subject to the provisions of this rule and of rule 4, the parties to an action between whom pleadings are closed, must make discovery by exchanging lists of documents and accordingly, each party must 14 days aaer the pleadings in the action are deemed to be closed as between him and any other party, make and serve on that other party a list of the documents which are or have been in his possession, custody or power relating to any matter in question between them in the action". 7. 7. The above prov1s1ons and others inspired the Ap pellant's arguments that discovery and inspection of docu ments is only permissible after closure of plead ings . We wish to state that we largely agree with that position on the basis of the cited provisions. J9 7.8. We must however, be quick to state that the above cited provisions as read together with rule 7 will show that the period after the close of pleadings continues to be open to orders for discovery and inspection upon application by a party. We therefore find no dispute over the fact that discovery and inspection is open throughout proceedings upon application by a party. 7.9. The maJor bone of contention however, is whether an application for discovery and inspection of documents 1s permissible after Judgment has been delivered. 7.10. But before we delve into that question, we take note that the Respondent has argued with much energy that in fact, his application for discovery and inspection of documents after the 2019 Judgment, was prompted by the Appellant's failure or refusal to comply with the orders previously made by Lady Justice Nyambe SC and Mr. Justice Nkonde SC during the proceedings in the two causes. 7 .11. This argument seems to have been premised on rule 7 (2) which provides that; "An Order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 2 or rule 3". JlO 7 .12. Our considered view is th at this sub-rule applies to the time within the proceedings and not af1 er the Judgem nt has been delivered in line with sub-rul ( 1). 7 . 13. We tak particular note and interest in the provisions of rule 12 cited by the Respondent which provides as follows; "At any stage of the proceedings in any cause or matter the Court may, subject to rule 13 ( l} order any party to produce to the -Court any document in his possession, custody or power relating to any matter in question in the c,ause o.r matter and the Court may deal with the docume.nt :when produced in such manner as it thinks Ji,,t". 7 . 14. The Respondent then went furth r to cite Halsbury's Laws of England 4 th Edition Vol. 13 paragraph 3 ;vhicl defines i caus " and matter in the following terms· '~Cause includes any action, suit or other original proceedings whilst a matte.r includes eve.ry proceeding in Court not in a cause .. " 7.15 . The definition of "matter" seems to imply that a matter falls outside a cause and if that be the case) it is curious wh ther an application for an order for discov ry and inspection is competent independent of proceedings in a cause or matter as prescribed by rule 12. Jll 7. 16. Our reading of Order 24 seems to suggest otherwise because, the role of discovery and inspection of documents is to assist parties to address relevant issues to the dispute in the cause or matter as defined. It is our view that such an application 1s sustainable only 1n exceptional circumstances. 7 .17 This brings us back to the question on post Judgment order for discovery and inspection of documents. Order 24 has no specific provision on the question. It however does give an indicator in that regard in its editorial introduction under 24 / 08 / 8 which 1s a comment on discovery in aid of execution of Judgment. 7.18. The above cited comment is couched in the following terms in so far as relevant to this case; "For the purpose of renderi.ng execution effective, a Judgment debtor may be required to give disclosure of his assets, both within and without the juri.sdiction ..... " 7 .19. In our view, this provision does not expressly speak to the circumstances of the case before us. This is so because the nature of discovery requested by the Respondent in the Court below relates to documents and not disclosure of the Appellant's assets. We are however, prepared to hold that if the documents requested by the Respondent are intended to render the execution of the Judgment effective or indeed if J12 they will aid the execution of the Judgment, then the Appellant has an obligation to make discovery of the same for inspection by the Court. 7.20. The discovery in aid of execution of Judgment in this case must however, be made with regard to the provisions of the Compensation Fund Act No. 43 of 2016 which provides for the procedure for enforcement of a Judgment against the State. We do not accept the argument that the order for discovery and inspection ought to have been granted on account of the Appellant's non-compliance with the orders given by the trial Judges before delivery of the Judgments. The Rules of Court under Order 24 are very clear on the timing of discovery and inspection in causes and matters. 8.0 . PROVISIONS OF THE ACT 8.1. For the purposes of this Judgment, we will only consider the relevant sections commencing with Section 1 7 ( 1) which provides as follows ; "Subject to the other provisions of this Act, a person who receives an award of compensation by a court, tribunal or under an agreement shall be paid Compensation from the Fund subject to- (a) the Attorney-General submitting the necessary documents relating to the award to the Committee, and J13 (b) the veri.ftcation of the necessary documents by the committee. 8.2. Under Section 18(3) the Act mandates the Permanent Secretary to submit a report of the proceedings of the meeting of the Committee to the Attorney-General within fourteen ( 14) days of the m eeting. 8.3. Section 19 mandates the committee to facilitate payment once it verifies the claim. 8.4. Section 20 declares the verification of a claim as sufficient authority to pay the amoun t due and the controlling officer is mandated to pay. 8.5. Section 21 provides as follows ; "Where the amount at credit in the Fund is insufficient to pay the whole amount of the claims against it which have been allowed, the amount at credit in the Fund shall be apportioned among the claimants in such manner as the committee considers equitable, and any claim that is unpaid shall be charged against future receipts of the Fund and paid out of the Fund when monies are available". 8. 6. The above prov1s10ns, 1n our view, should have been the basis upon which to found the application for discovery and J14 inspection and not the prev10us defaults by the Appellant pending or during trial. This is important because it informs the Respondent the precise documents necessary to aid enforcement or execution of the Judgment. 8.7. The summons for Production and Inspection of Documents filed into Court on 10th December 2019, already reproduced earlier in this Judgment, includes documents upon which the Settlement Agreement was based as well as documents that may have been generated following the Judgment by Lady Justice P. M. Nyambe SC of 2016 and by the Supreme Court on appeal delivered in 201 7. 8.8. It is our considered view that the said documents do not aid the Respondent in the execution of the Judgment delivered by Mr. Justice S. B. Nkonde SC dated 22 nd February 2019. What is critical is to put the Respondent in the know on whether or not the Appellant complied with the enforcement procedures with regard to the final Judgment of Mr. Justice Nkonde SC which was not appealed against. 8.9. We are fortified in our view by Section 18 (2) (b) of the Act which provides as follows; "The Committee shall, when verifying an application take into account- (b) whether the amount claimed is subject of an appeal or continuing litigation". J15 On the strength of the prov1s10n above, we do not think that the Appellant needed to take any enforcement steps under the Act following the 2016 Judgment which was the subject of an appeal. Further we do not think the Supreme Court Judgment needed execution as it only endorsed the Judgment of 2016 on the validity of the Settlement Agreement but set aside the lower Court's order for compensation for breach of contract which required commencement of a fresh action by writ of summons. 8.10. In view of what we have said, we set aside the order for production and inspection of the requested documents with respect to those documents which may have been generated prior to the Judgment of Mr. Justice B. Nkonde SC dated 22 nd February 2019. 8.11. For avoidance of doubt, the Appellant is ordered to produce for inspection only documents tending to compliance with Sections 17 to 22 of the Compensation Fund Act No. 43 of 2016 from the 22 n d February 2019 to the date of this Judgment. 8.12. As for the second ground of appeal which decries the lower Court's finding that there was no or scanty evidence of intention to satisfy the Judgment, we believe that the Judge was on firm ground as the duty is on the Appellant to produce evidence to the satisfaction of the Court. In J16 that regard, the issue will be settled by production of documentary evidence to that effect. 8.13. Ground three is an elementary issue as it is settled that the costs follow the event. It is immaterial that the trial Court's Judgment was not correct and that can only be tested on appeal. The Judge was therefore on firm ground to award costs to the successful party. 9.0. CONCLUSION 9.1. All in all we find no merit in the appeal save for the variations to the order for production and inspection as indicated in paragraphs 8.10 and 8.11 of this Judgment, we dismiss , the appeal with costs to be taxed in default of agreement. F. M. CHISHIMBA COURT OF APPEAL JUDGE P. C . M. NGULUBE COURT OF APPEAL JUDGE J M. J. SIAVWAPA COURT OF APPEAL JUDGE J17