Zambia Seed Company Ltd v West Co-op Haulage Ltd and Anor (Appeal 112 of 2013) [2015] ZMSC 164 (10 November 2015)

J1 MERRY IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 112/2013 SCZ/8/114/2013 BETWEEN: ZAMBIA SEED COMPANY LIMITED APPELLANT AND WEST CO-OP HAULAGE LIMITED 18ST RESPONDENT WESTERN PROVINCE COOPETATIVE UNION LTD 2ND RESPONDENT Coram: Mambilima, CJ, Wood and Malila, JJS On 8th October, 2015 and 10t* November, 2015 For the Appellants: Mr. N. K. Mubonda of Messrs D. H. Kemp & Company For the Respondents: Mr. C. L. Mundia, SC of Messrs C. L. Mundia & Co. JUDGMENT MALILA, JS delivered the Judgment of the Court. Cases referred to: 1. Twampane Mining Cooperative Societies v. E. M. Storti Mining Ltd. Appeal No. 126 of 2010 Tillesley v. Harper (1878) 10Ch D393 G. L. Barker Ltd v. Midway Building and Supplies Ltd (1958) 3 ALL ER 540. M. H. Patel v. Surma Stationers and 2 Others (2009) ZR 112. 2. 3. 4. 5. Cropper v. Smith (1884) 26 QBD 6. Collins v. Vestry of Paddington (1880) 5 OBD 368. J2 7. Clarapede v. Commercial Union Association (1883) WLR 263 8. Zambia Consolidated Copper Mines Limited v. Joseph David Chileshe SCZ judgment No. 21 of 2002, Legislations referred to: 1. 2. 3. 4. Order 20 Rule 5 of the Rules of the Supreme Court, 1999 edition Order 18 Rule 1 Zambia Order XVIII of the High Court Rules of the High Court Act Chapter 27 of the Laws of Order 3 Rule 6 of the Rules of the White Book Other authority referred to: 1. Concise Oxford English Dictionary This appeal is on an interlocutory point. It reopens the old issue of amendment of pleadings, and in particular, it calls for determination of the question under what circumstances a court may decline to grant an application to amend a pleading. The main matter has been pending determination in the High Court for one score and two years, having been commenced by writ of summons in 1994. The appellant is the defendant in the pending action in the lower court. By that action the respondents, as plaintiffs, sought damages against the appellant for wrongful seizure of the respondents’ property in execution process taken out at the instance of the appellant. J3 Following the entry of its defence, and the pleadings having been closed and the matter set down for trial, the appellant applied in March, 2009 to amend its defence pursuant to Order 18 Rule 1 of the High Court Act, chapter 27 of the laws of Zambia. The affidavit in support of that application, sworn by Mike Buumba, was dated the 3™¢ of March, 2009 and was filed into court on the 4» March, 2009. It is unclear from the record of appeal why that application was not heard. What is clear, however, is that another summons for leave to amend the defence, supported by another affidavit sworn by Mike Buumba, was filed in court on the 7 November, 2012. The application was robustly opposed by the respondent on grounds that the appellant delayed in launching the same and that such delay was inordinate and inexcusable, given that that the appellant had all the time in the world to make that application earlier. It was also contended that the delay in making the application was likely to prejudice the respondent. J4 The learned High Court judge agreed with the respondent that the delay was inordinate and inexcusable. In order to exercise her discretion whether or not to grant the application, the learned judge was of the view that there was need to identify the real question in controversy that needed to be addressed and, therefore, consider whether the amendment was, or was not necessary. Having so reasoned, the learned judge came to the conclusion in her ruling that the real question in controversy could be determined on the pleadings as originally framed. In the view she took, the amendment sought was unnecessary, and the application was accordingly refused. Disenchanted by that ruling, the appellant appealed, assailing the ruling on six grounds framed as follows: “1, The learned trial judge misdirected herself in law by considering irrelevant and extraneous matters such as a period close to two decades to be too long a delay in which to apply to amend a defence. 2. The learned trial judge misdirected herself in law in failing to give sufficient consideration and weight to the fact that the appellant filed into court on 4th March, 2009 summons for leave to amend the defence but for some unknown reason it was not given a return date, and hence the refilling of the same in 2012. J5 3. The learned trial judge misdirected herself in law in holding that in her opinion the leave to amend, if granted, would prejudice the plaintiff who has waited such a long time to bring the matter to finality. 4. The learned trial judge misdirected herself in law in holding the opinion that there was no jurisdiction for asking to amend defence at this late stage. 5. The learned trial judge fell into error in law when she failed to consider that the amendment was to determine all the issues in controversy between the parties. 6. The learned trial judge misdirected herself in law in ignoring and refusing to apply to law under, inter alia, Order 18 Rule 1 of the High Court Rules Chapter 27 of the Laws of Zambia and paragraph 20/08/9 of the Supreme Court 1999 Edition.” Both parties, through their respective learned counsel, filed in heads of argument upon which they placed reliance. In his written heads of argument, Mr. Mubonda, as regards ground one and six which he argued compositely, referred us to the part of the learned judge’s ruling where she stated that a period of close to two decades is too long a delay in which to apply to amend the defence. Having done that, the learned counsel then submitted that the lower court’s holding flew in the teeth of the law governing the grant or refusal to grant leave to amend pleadings. According to Mr. J6 Mubonda, reliance by the learned judge in the court below on the case of Twampane Mining Cooperative Societies v. E. M. Storti Mining Ltd’) was inapropos to the extent that, that case dealt with an application for extension of time within which to appeal, and not an application to amend a pleading. The learned counsel quoted, ipsisma verba, the provisions of Order 18 Rule 1 of the High Court Rules, Order 20 Rule 5 of the Rules of the Supreme Court, 1999 edition, paragraph 20/8/9 of the Rules of the Supreme Court 1999 edition and paragraph 20/8/10 of the Rules of the Supreme Court, 1999 edition before submitting that there is no stipulated or regulated period under those provisions or any other law, for any party to apply for leave to amend a pleading as the ruling implies. It was Mr. Mubonda’s contention that the lower court’s holding is open to objection and offends the principles enshrined in the rules that he quoted. According to Mr. Mubonda, these rules clearly stipulate that amendment can be allowed at any stage of the proceedings. We were urged to uphold the two grounds of appeal. J7 As regards ground two, Mr. Mubonda submitted that failure by the court to take into account the fact that the appellant had filed into court on 4t March, 2009, summons for leave to amend defence, and was prompted to re-file the same in 2012 for reasons beyond its control, was a misdirection. The learned counsel took us through the long factual history of the application to amend the defence and what appears to us to be lethargy on the part of the court to deal with that application. According to Mr. Mubonda, if the learned judge in the court below had considered those facts on record it would have more appropriately directed itself and allowed the appellant’s application to amend. Under ground three, the learned counsel for the appellant alleged a misdirection on the part of the learned judge in the court below when she opined that if the appellant were granted leave to amend its defence, the respondents would suffer prejudice as they have waited a long time to bring the matter to finality. According to Mr. Mubonda, what should have been apparent to the learned trial judge and should have formed the basis of her decision, was that if she granted leave to the appellant to amend its J8 defence the respondents would suffer loss or detriment in waiting for a long time before the matter was brought to finality. This was not so. If this were the position, the appellant should only have been penalized in costs. The case of Tillesley v. Harper(?) was cited and relied upon. More specifically, Mr. Mubonda, in order to persuade us to accept his submission on this point, cited a passage from the judgment of the Bramwell LJ, at 397 follows: “My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he has 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, the amendment should be allowed if it can be made without injury to the other side. There is no injustice if the other side can be compensated in costs.” Mr. Mubonda, to the same intent, quoted a passage from the judgment in G. L. Barker Ltd v. Midway Building and Supplies Ltd'3). He submitted that the learned judge in the court below misdirected herself in refusing to grant the appellant’s application to amend on the purported prejudice which involved no loss to the respondents. He prayed that we allow ground three of the appeal. J9 The learned counsel for the appellant argued grounds four and five together. The main point taken on these two grounds was that the learned High Court judge misdirected herself when she concluded that there was no justification for the appellant’s quest to amend the defence. According to Mr. Mubonda, the justification set out in the appellant’s affidavit of 4 March 2009, namely, that it was necessary to determine all questions in controversy, should have sufficed. We were referred to Order 20 Rule 8(1) of the Rules of the Supreme Court, 1999 edition. It was Mr. Mubonda’s fervid prayer that this ground too, should be allowed. By way of augmenting these written heads of argument, Mr. Mubonda, also cited and relied on the case of M. H. Patel v. Surma Stationers and 2 Others(). In his written heads of argument in response, Mr. Mundia SC, learned counsel for the respondent, strongly impugned the arguments made in support of the appeal. J10 In regard to ground one and six of the appeal, State Counsel Mundia supported the trial court’s findings. After referring us to Order 18(1) of the High Court Rules, Mr. Mundia SC, stressed that the use in that rule, as well as other relevant rules in the White Book, of the word ‘may’ in relation to the judge’s power to grant an application for leave to amend, should be understood to enhance the discretion reposed in the court in determining any such application before it. In Mr. Mundia’s view, the trial judge could not be faulted in using her discretion against the applicant after considering all the circumstances of the case which included inordinate delay and prejudice to the respondents. The learned counsel then submitted that a careful scrutiny of the proposed amendment to the defence made it clear that the appellant intended to bring in the issue of non-joinder of party, namely, the Sheriff of Zambia under the provisions of Order 14/5/1 of the High Court Rules, Chapter 27 of the Laws of Zambia. By this, according to the learned State Counsel, the appellant is trying to shorten the circuit through its action against the Sheriff of Zambia when it is already caught up by the Statute of Limitation as the Sheriff cannot be J11 joined as a party after the tortious acts were committed as far back as December, 1992. Mr. Mundia SC, further argued that the proposed amendment does not meet the statutory requirement as provided for under Order 18 of the High Court Act which include, among other things, whether the said amendment was necessary, proper and will eliminate prejudice, embarrassment or delay of a fair trial. The learned counsel also argued that the court’s discretion was properly exercised as the delay in making the application to amend was inordinate, given that the action was commenced in 1994 and the application to amend only filed in 2009. The learned State Counsel cited and relied on the case of Twampane Mining Cooporative Society Ltd v. E. M. Storti Mining Ltd". Ground two of the appeal was opposed on effectively the same ground of inordinate delay which Mr. Mundia SC, articulated under ground one. He reiterated those arguments. J12 As regards ground three, the respondent’s learned counsel agreed with the holding of the learned judge in the court below that the amendment would prejudice the respondents who had waited for such a long time to bring the matter to finality. The learned counsel referred us to the Concise Oxford English Dictionary for the definition of the word ‘prejudice’. He contended that costs alone cannot be sufficient compensation in a matter characterized by tardiness and endless interlocutory applications. The learned State Counsel distinguished the case of G. L. Barker Ltd v. Midway Building Supplies Ltd) cited by the learned counsel for the appellant on grounds that in the present case, there was an extreme loss of earnings as is evident from the writ of summons and statement of claim. We were accordingly urged to dismiss ground three of the appeal. In responding to grounds four and five of the appeal, the learned State Counsel stated that: “Here if there has been any prejudice or delay, the delay or prejudice has been to the detriment of the respondents.” J13 The learned counsel then poured scorn on the _ proposed amendment and cited section 14(2) of the Sheriff's Act to show that the amendment proposed would, in any case, have no substance or exculpatory value for the appellant’s defence. In supplementing the written heads of argument, State Counsel Mundia reiterated that the issue in the present appeal was about delay. Court process being a serious affair, it was incumbent upon the appellant who had made the application to amend its defence, to make follow up efforts. The failure to do so was incongruous and should react against the appellant. He urged us to dismiss the whole appeal. We have carefully considered the rival arguments by the learned counsel for the parties and the authorities brought to our attention. The principles governing amendment of pleadings are as old as the law. We wish to take them briefly here. First, the omnibus one. The policy of the law is that amendments to pleadings sought before the hearing should be freely allowed if they are made without injustice to the other side. In other words, our adjectival law leans heavily in favour of amendments, and is generally against refusal of J14 amendments. In the often cited English case of Cropper v. Smith), Bowen LJ, said: “Now, I think it is a well established principle that the object of courts is to decide the rights of the parties and not to punish them for the mistakes which they make in the conduct of their cases... I know of no kind of error or mistake which, if not fraudulent... 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 and I do not regard such amendments as a matter of favour of grace... It seems to me that as soon as it appears that the way a party has framed his case will not lead to a decision of the real matter in controversy, it is as such a matter of right on is part to have it corrected, if it can be done without injustice.” It is part of the duty of a judge facing an application to amend pleadings to see to it that everything is done to facilitate the hearing of an action pending before her wherever it is possible to cure an unintentional blunder in the circumstances of a case, if it will help to expedite the hearing of the action. The court should award costs against any delinquent party rather than decline an application to amend pleadings, or any fault in the proceedings before the hearing. See Collins v. Vestry of Paddington. Ji5 The circumstances under which a court may grant or refuse leave to amend pleadings are clearly set out in Order XVIII of the High Court Rules. It provides that: “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 seem just.” Although the pendulum weighs or tilts in favour of granting amendments, courts of law are entitled to refuse amendments in deserving cases. Trial courts must examine the application for amendment very carefully in the light of the affidavit evidence. In the process, the courts should consider the peculiar facts of each case. In doing so the court is enjoined to take into account a number of principles or factors including: (a) the attitude of the parties in relation to the amendment; (b) the nature of the amendment sought in relation to the suit; (c) the question in controversy; (d) the time when the amendment is sought. J16 Although the attitude of the respondent may in certain instances be an important consideration, the attitude of the applicant is the major consideration. In this regard, the court must be satisfied that the application is brought bona fide or in good faith and not designed to abuse the court process. In dealing with the nature of the amendment, the court should take into consideration the totality of the content of the amendment sought vis-d-vis the relief or reliefs sought in the matter. In the consideration of the nature of the amendment sought, the court should examine closely the real question in controversy in the litigation. The time or stage of the case when the application for amendment is brought is also an important factor. And here, the court should take into consideration whether the 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 for 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. But the court should take into consideration also whether the applicant, as a person of due diligence and business J17 acumen, ought to have procured the information earlier than the time he obtained it. And here, we are not restricting the words “pusiness acumen” to the usual meaning of buying and selling; rather it covers the business of searching for winning or exculpatory evidence. We do not think the court should be prepared to grant an application if the applicant was indolent in the process of searching for the relevant evidence for the amendment. The court will be in order to use the objective test to judge the business acumen of the applicant vis-d-vis indolent conduct. After all, equity does not assist the indolent. The final consideration is the justice of the case. Justice is the barometer on which the case revolves or rotates in the judicial process. It is the cynosure in the judicial process. The court should, therefore, carefully consider the dictates of justice in dealing with any application to amend pleadings. Bringing home the foregoing considerations, we note with regret as we have stated earlier on in this judgment, that this matter has been pending hearing in the High Court for twenty-two years now. This delay is extra ordinary and it is to be deprecated. The J18 certificate for settling the matter down for trial was settled in April, 1996. We also note that the respondents (Plaintiffs) had delayed in taking action and were thus prompted to file a Notice of Intention to Proceed after a year’s delay pursuant to Order 3 Rule 6 of the Rules of the White Book. The matter was at that stage being handled on behalf of the respondents by Messrs Muyenga and Associates of Mongu. The present Advocates for the respondent, only came on the scene in June, 2000 when they filed a Notice of Appointment of Advocates. The initial application to amend the defence was formerly filed in March, 2009, though an intimation of the desire to amend had been made to the trial judge some two years previously, in August, 2007. At the hearing of the appeal, Mr. Mubonda sought to explain the delayed determination of this matter by bringing to our attention how, on at least two occasions, the matter had to be adjourned at the instance of the plaintiffs (respondents). He also explained that the initial application for amendment of the defence could not be heard for inexplicable reasons attributable to the court. Clearly, Mr. Mubonda’s narration would have been more useful if it had J19 taken the form of evidence through an affidavit. Be that as it may, a perusal of what we have on the record shows that the High Court’s handling of this matter exemplifies slow, tardy justice to unacceptable levels. However, the twenty-two years delay in getting the matter cause listed for trial cannot, in all fairness be attributable to the conduct of the appellant, let alone the appellant’s application to amend which the respondents only opposed by affidavit in August 2012. We do not think, therefore, that the attitude of the appellant with regard to the amendment was punctuated by mala fides or designed to abuse the process of court. The application to amend was first made in March, 2009, some three years after the respondent’s current advocates started representing the respondent. Before then, there appears to have been little progress recorded in getting the matter heard. As this was the respondents’ action, it was the respondents who should have manifested eagerness to get the cause heard. There is nothing on the record to show this. J20 We agree with Mr. Mubonda that the tenor of Order 18 Rule 1 of the High Court Rules and Order 20 Rule 5 of the Rules of the Supreme Court is clear; they do not suggest a time frame within which the application to amend is to be filed. This fact, coupled with the absence of an improper attitude on the part of the appellant, and also given that the general delay in having the matter heard by the High Court is not attributable to the appellant, we are inclined to apply the dicta of Brett M. R. in Clarapede v. Commercial Union Association(”) that: “However negligent or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be done without injustice to the other side. There is no injustice if the other side can be compensated by costs.” We shall revert to the issue of injustice or prejudice later. For now, we are satisfied that grounds one and six of the appeal must succeed. The learned trial judge misdirected herself when she took the aggregate period of over two decades in determining whether the delay in making the application was inordinate or not. In making that determination the learned judge should have considered the portion of the period of delay attributable to the appellant, the J21 appellant’s own attitude, the movement of the case record, the court’s own inertia and the provisions of Order 18 Rule 1 of the High Court Rules, in exercising her discretion in relation to the application. As regards ground two of the appeal, we note from the record of proceedings that although the certificate to settle the matter down for trial was concluded as way back as April, 1996, there is nothing to show how the file moved from the Mongu Registry to the Lusaka Principal Registry. The matter only first came up before the High Court judge on the 16 August, 2007. At that point, an intimation that an application to amend the defence was to be made was given by the appellant’s lawyers. When the matter next came up on the 11% November 2009, both parties were absent and the court adjourned the matter without stating the return date. On the 16% August, 2012 when the matter again came up, an adjournment was sought at the instance of the appellant, but not objected to by the respondents. The matter was to come up on the 8 November, 2012. By that time the application to amend the defence had been J22 re-filed into court. The court then adjourned to deliver its ruling which is the subject of this appeal. The question we have to ask is whether, with this procedural background, the learned trial judge could be said not to have given sufficient consideration to the facts of the filing of the application to amend the defence. We have already stated that the general delay in having the matter heard cannot be attributed to the appellant alone. As the learned judge in the court below acknowledged, the matter was even referred to mediation that failed. We have already also alluded to the fact that this action was initially commenced in the Mongu High Court and had to be transferred to Lusaka at some point. All these developments contributed to the delay. We are of the view that the learned trial judge should have taken interest to identify the amount of this delay for which the appellant was responsible and relate it to the application to amend the defence. Failure to do so was a misdirection. We find merit in ground two. aa J23 Ground three of the appeal raised the question of prejudice to the respondents, the issue before us being whether or not the respondents would suffer prejudice if the application to amend the defence were granted. It is well settled that the court should grant leave to amend unless it is shown that prejudice will be occasioned to the other party beyond what is compassable in costs. In the Zambia Consolidated Copper Mines Limited v. Joseph David Chileshel®), we stated that amendments to pleadings should not be allowed if they cause prejudice to the rights of the opposite party as existing at the date of such amendment. In the affidavit in opposition to the application sworn by Charles Siyanga Mututwa and dated the 15 August 2012, the application was opposed “on grounds that it comes after unjustified and inordinate delay as this action was commenced in 1994.” At the hearing of the application on the 8 November 2012, the learned counsel for the respondent equally opposed the application on grounds of delay and that it was “likely to prejudice the plaintiff J24 bearing in mind that the matter went for mediation, a trial was expected and not reopening the matter.” Before us, Mr. Mundia’s argument is not different. Besides adding that the application to amend was frivolous, Mr. Mundia SC, contended that it cannot be argued that the inordinate delay in prosecuting this matter has not been detrimental or harmful to the respondents. What the learned State Counsel did not do was to intimate to the court the nature of the prejudice the respondents were likely to suffer if the application for amendment of the defence were granted. As already stated the respondents did not demonstrate that it will be occasioned such prejudice or injury if leave to amend the defence were granted. We are for our part perfectly satisfied that no further prejudice will result from allowing the amendment any more than the prejudice already occasioned by the general delay in determining this matter. Ground three is bound to succeed. J25 As regards ground five, it is contended that the amendment sought is unnecessary for purposes of determining the real question in controversy. In the view we take, if a party seeking to amend its defence is of the view that the proposed amendment will improve its case, leave cannot be refused merely because the plaintiff is of a contrary view. At this point, it is immaterial that the plaintiff has a watertight rejoinder to the proposed amended defence. We refrain from considering whether or not the proposed amendment as framed will assist the appellant’s defence in the lower court. We say so because arguments on the same matter may still be raised should the respondents be so minded, in their reply once leave to amend the defence is granted. As it is now, and applying Order 18 Rule 1 of the High Court Rules, the appellant is entitled to leave to amend its defence. The justice of the case requires that the appellant be allowed to amend its defence so that the High Court proceeds to try the matter without further delay. Grounds four and five of the appeal succeed accordingly. “a wy The net result is that the whole appeal succeeds. Costs shall abide the outcome of the proceedings in the High Court. I. C. Mambilima CHIEF JUSTICE A. M SUPREME @ ee ae ae SE rcrts SU ME COURT JUDGE