ZCCM Investments Holdings Plc v Martin Mutondo (Sued in his capacity Receiver of Kapiri Glass Manufacturing Co. (2008) Limited (In Receivership) and Anor (2019/HPC/0429) [2020] ZMHC 439 (11 September 2020)

IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 2019/HPC/0429 ZCCM INVESTMENTS HOLDINGS PLC. PLAINTIFF AND MARTIN MUTONDO (Sued in his capacity Js / Spp Receiver of Kapiri Glass Manufacturing Co. (2008) ... 202(] Limited (In Receivership) DEFENDANT SUNGANI CISANZO MWALE THIRD PARTY Before the Honourable Mr Justice K. Chenda on 11 th September 2020 For the Plaintiff Mr L. Mbalashi, In House Counsel For the Defendant Mr B. Gondwe and Mr I. Silwamba both of Buta Gondwe & Associates For the Intended Third Party: Mr E. B. Mwansa, S. C. of EBM Chambers RULING On Directions Sought at Status Conference Legislation: (i) The High Court Act, Chapter 27 of the Laws of Zambia Rules of Court: (ii) Rules of the Supreme Court of England 1965 , contained in the White Book 1999 Edition Case Law: (iii) Gaedonic Auto motives Limited & Anr v CEEC - Vol. 3 (2 014) ZR 1 Authoritative Text: (iv) Atkins Court Forms Vol 15, 2nct Edition 199 4 Issue • • 1 BACKGROUND 1.1 On 26th August 2020, following a record of non-compliance with the preparatory directions, this Court ordered the parties to comply in full by 7th September 2020 in default of which: • (i) if the Plaintiff, its case against the Defendant would stand dismissed for want of prosecution; and (ii) if the Defe ndant, its third party proceedings would stand dismissed for want of prosecution. l.2The aforesaid Order shall for convenience be referred to as the Order for further directions. This Court also scheduled the matter for status conference to be h eld on 10th September 2020. l.3At the status conference, the Plaintiff addressed this Court that it had missed the deadline by a day, only filing its bundles, witness statement and arguments on 8 th September 2020. ( f 1.4 The Plaintiff was apologetic and sought a direction for the Court to accept it as having complied in full and matter to be set down for trial. l.5The Defendant for its part advised that it had complied in full with its set of documents filed on 7 th September 2020 and requested this Court to decline the direction sought by the Plaintiff on account of the Order for further directions which carried the sanction of dismissal for default. R2 1. 6 The Third Party took the view that both Plaintiff and Defendant were in default and that the direction sought by the Plaint iff should be declined as both the Plaintiffs case and Defendant's third party proceedings stqod dismissed pursuant to the Order for further directions. 2 EFFECT OF ORDER OF 26TH AUGUST 2020 • 2.1 The Order for further directions operated to jostle the parties into compliance (on or b efore 7th September 2020) failing which the sanction of dismissal would set in. The Learned authors of Atkins Court Forms 1 have this to say: "18. Effect of dismissal of action. Dismissal [i.nally terminates the dismissed action and no further steps can be taken in it in relation to the claim made in it ... Dismissal of an action or counterclaim for default is not a bar to a fresh action on the same or substantially the same facts and does not operate as an estoppel or a res judicata, even where the plaintiff consented to the order since the court has not determined or adjudicated upon the case on its merits. ''2 (Emphasis added) • 2.2Th e Plaintiffs failure to comply as ordered activated the dismissal provisions of the Order for further directions with a terminal effect on the Plaintiffs case. 1 Vo! 15, 2 nd Edition 1994 Issue 2 Ibid, p.20 R3 2 .3No further steps can be taken in respect of the Plaintiffs case unless the Order for further directions is vacated on review or appeal. 2.4 That is not to say that the Plaintiff cannot redeploy its grievances against the Defendant in an identical fresh action as the Atkins provisions above have shown. 2 .5Furthermore, in the case of Gaedonic Automotives Limited & Anr v CEEC3, the Supreme Court expressly pronounced that dismissal for want of prosecution is not a bar to commencement of a fresh action on the same facts. 2.6As for the case between the Defendant and Third Party (the Third Party Proceedings) the record shows that on 7 th September 2020 the Defendant filed its bundles, witness statement and skeleton arguments. 2. 7Therefore, there can be no issue of termination of the third party proceedings on the backbone of the Order for further directions and the real question instead is whether the same survives the dismissal of the Plaintiffs case. 3 Vol. 3 (2014) ZR 1 R4 2.8Following the lacuna in our domestic rules as far as third party proceedings go and with the importation leeway under section 10 of the High Court Act4, the answer is to be found in the explanatory notes to Order 16 of the Rules of the Supreme Court of England5 which in 16/0/2 guide: "Generally speaking, where a defendant issues and serves a notice on another person who is already a party to the action (r.8) or who is not {r.1), the respective parties stand in relation one to another as if the defendant had brought a separate action against that other person (McCheane v. Gyles [1902} 1 Ch 287 at 301; Johnson v. Ribbins [1977} 1 W. L. R. 1458 at 1464, per Goff L. J., CA). The proceedings which thereby arise have or may have, as it were, a life of their own, quite independent of the main action. They create a "lis" between the parties in question which will remain to be disposed of by the Court in the event of all the other issues falling away. "6 (Emphasis added) 2. 9 Quite clearly therefore the third party proceedings continue in existen ce, even if it be simply for the issue of the Defendant's costs incurred in reaction to the Plaintiff's action. 4 Cha pter 27 of the Laws of Zambia 5 1965, conta ined in th e White Book 1999 Edition 6 Ibid,. at page 2 74 R5 3 CONCLUSION AND ORDERS 3.1 The omission by the Plaintiff to fulfil the Order for further directions had a terminal effect on the Plaintiffs case and the position remains unchanged for as long as same is in place. 3.2This Court therefore has no jurisdiction to set the Plaintiff's matter down for trial as sought at the status conference of 10th September 2020. 3.3The Plaintiffs case remains dismissed for want of prosecution and for the avoidance of doubt each of the parties shall bear their own costs of the Plain tiffs action seeing as the termination thereof was at the instance of the Bench and not the Bar. The dismissal is however no bar to commencement of a fresh action on the same facts for a determination on the merits. 3.4 The Defendant's third party proceedings have survived the dismissal of the Plaintiffs case and shall come up on 18th September 2020 at 09:30 hours for sta tus conference and discussion of parameters for adjudication. 3.5Leave to appeal is granted. ll~ ( ~ ~ " ' J 4~·~ ~~ Dated this ---------------- ----------------d~y i------------------------------------------2020 ------------ --[ __ -------------- . HEN A Judge of The High Court R6