Bornface Mutale v Nkana Water Supply and Sanitation (APPEAL NO. 265/2023) [2024] ZMCA 110 (29 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil J u risdict ion) APPEAL NO. 265/2023 BETWEEN: !_ S MAY 202¼ BORNFACE MUTALE APPELLANT AND NKANA WATER SUPPLY AND SANITATION RESPONDENT Coram : Chashi, Makungu and Sharpe - Phiri, JJA On the 3()th day of April, 2024 and on the 29th day of May, 2024 For the Appellant: Mr. R. Mwanza from Robert & Partners For the Respondent: Miss J. Ndovi Director-Legal JUDGMENT MAKUNGU JA, delivered Judgment of the Court. Cases referred to: 1. In the matter of protection of fundamental rights and freedoms of the individual and in the matter of articles 20 (6) and 29 of the Constitution of Zambia Mundia Sikatana v. The Attorney General (1982) Z. R 109 2. Barclays Bank Zambia (z) Plc v. Frank Mutambo & another CAZ Appeal No. 8/2019 3. Standard Chartered Bank Zambia PLC v. Wisdom Chanda and another Appeal No. 92 of 2009 4. Ruth Kumbi v. Robinson Kaleb Zulu (2009) ZR 183 5. Henry M. Kapoko v. The People 2016/CC//0023 6. Waterwells Limited v. Wilson Samuel Jackson (1984) Z. R 98 7. Stanely Mwambazi v. Morrester Farms Limited (1977) Z. R 108 Legislation referred to: 1. The Constitution of Zambia, Chapter 1 of the Laws of Zambia 2. The High Court, Act Chapter 27 of the Laws of Zambia. 3. The High Court(Amendment) Rules, 2020 Authorities referred to: 1. The Rules of the Supreme Court of England, 1999 Edition (White Book) 1.0 INTRODUCTION 1.1 This is an appeal against the ruling of E. Pengele J, of the High Court delivered on 19th April 2023, dismissing the appellant's application to raise a preliminary issue to determine the matter on a point of law and the application to expunge the defendant's defence from the record. The Judge allowed the defendant's application to amend the defence, list of witnesses and list of documents. 1.2 The appellant was the plaintiff in the Court below, while the respondent was the defendant. 2 .0 BACKGROUND 2.1 In this judgment the parties will be referred to by their designations in the lower court up to the point of the grounds of appeal. Thereafter they will be referred to as appellant and respondent respectively. 2.2 The three applications before the court below were as follows: 1. The plaintiff's application to expunge a wrongly filed defence and enter judgment in default of defence; 2. The defendant's application for leave to amend its defence, list of documents, and list of witnesses; and 3. The plaintiff's application to raise preliminary issues. -J2- 2.3 The applications followed the transfer of the matter from the Principal Registry of the High Court at Lusaka to Kitwe High Court. Before the matter was transferred, the defendant raised a preliminary issue but withdrew it when it came up for hearing on 12th September 2022. Then, Mapani Kawimbe J , ordered the defendant to file its defence within 14 days and the plaintiff was to file his reply within 5 days thereafter. The matter was forthwith transferred to the Kitwe High Court. 2.4 On 20t h September 2022, 8 days after the hearing, the plaintiff filed an amended writ of summons and statement of claim. On 6 th October 2022, 24 days after the hearing and 16 days after the plaintiff had filed his amended writ of summons, the defendant filed its defence. 2.5 On 25 th October 2022 , the plaintiff applied to expunge the defence from the record on the ground that it was filed out of time without leave of Court, and to enter judgment in default of defence. 2.6 On 11 th November 2022, the defendant applied for leave to amend its defence, list of documents and list of witnesses. In response to the defendant's application, the plaintiff raised a preliminary issue on 30th November 2022, seeking the -J3- dismissal of the defendant's application for leave to amend the defence, list of documents and list of witnesses. 3 .0 THE PLAINTIFF'S APPLICATION TO EXPUNGE WRONGLY FILED DEFENCE AND ENTER JUDGMENT IN DEFAULT OF DEFENCE. 3. 1 This application was made under Order 3 rule 2 of the High Court Rules and Order 13/2/2 of the Rules of the Supreme Court of England, 1999 Edition. 3.2 An affidavit sworn by the plaintiff supported the application. In essence, the plaintiff stated that on 13th July 2022, he commenced this action and the defendant was duly served with the originating process on 20th July 2022. The defendant attempted, without appearing to the writ, to challenge the originating process resulting in the order of 12th September 2022 , where Kawimbe J, directed the defendant to file its defence within 14 days from 12th September 2022. 3.3 That on 17th October 2022, the plaintiff's advocates conducted a search on the court record, which revealed that the defendant had filed its defence without applying for an extension of time. -J4- 4 .0 DEFENDANT'S OPPOSITION 4.1 The defendant did not oppose the plaintiff's application to expunge the wrongly filed defence and enter judgment in default of defence and appearance. 5.0 DEFENDANT'S APPLICATION FOR LEAVE TO AMEND DEFENCE, LIST OF DOCUMENTS AND LIST OF WITNESSES 5.1 The defendant's application for leave to amend defence, list of documents and list of witnesses was made under Order 18 Rule 1 of the High Court Rules and Order 20 Rule 5 of the Rules of the Supreme Court of England, 1999 Edition (RSC). 5.2 It was supported by an affidavit sworn by Saili Demiter Botha, Counsel in the employ of the defendant. The deponent stated that the defendant wanted to amend its defence to adequately respond to the plaintiff's amended writ of summons. Amending the defence would require amendments to the list of documents and list of witnesses. The amendment to the defence would not prejudice the plaintiff in any way. 6.0 PLAINTIFF'S OPPOSITION 6 . 1 The plaintiff did not file an opposition to the defendant's application to amend. Instead, he raised a preliminary issue. -JS- 7.0 PLAINTIFF'S APPLICATION TO RAISE PRELIMINARY ISSUE In the plaintiffs application to raise a preliminary issue made 7.1 pursuant to Order 14A of the Rules of the Supreme Court, the question raised was as follows: "Whether the defendant's application for leave to amend defence, defendant's list of documents and defendant's list of witnesses is competent in light of the late filing and without leave by t he defendant of the documents sought to be amended." 7 .2 The plaintiff deposed to an affidavit in support of the motion wh erein he stated that the defendant failed to file its defence within 14 days from 12 th September 2022, as ordered by Mapani Kawimbe, J. The defendant instead filed its defence on 6 th October 2022, without leave of Court. 8.0 DEFENDANT'S OPPOSITION 8.1 The defendant's affidavit in opposition was sworn by its Acting Director of Engineering Derrick Ntonyo. The substance of his averments was that the defence was filed 17 days late . This was not an inordinate delay. The plaintiff was at liberty to enter judgment in default of appearance and defence when it came to his attention that the defendant had not yet -J6- entered appearance and defence. The plaintiff failed to make the necessary application. There was no requirement for the defendant to obtain leave to enter an appearance. Therefore, th e defendant was not estopped from filing its defence 17 days after the amended writ of summons was served. 8.2 The deponen t further stated that the order given by Mapani Kawimbe J, to re-file the pleadings was not in the form of an unless order which would entitle the plaintiff to object to the filing of the defence and memorandum of appearance by the defendant. Therefore, the entering of an appearance and defence was properly done and the application for leave to amend was properly before the Cou rt. 9.0 PLAINTIFF'S AFFIDAVIT REPLY 9 .1 The contents of the plain tiff's affidavit in reply filed on 11 th Janu ary 2023 , were essentially a repetition of the affidavit in opposition. 10.0 DECISION OF THE LOWER COURT Application to raise a preliminary issue 10.1 The lower Court determined that Order 14A rule 1 and Order 33 rule 7 of the Rules of the Supreme Court make it clear that invoking those provisions is aimed at disposing of the entire action with out a trial. Those provisions are not meant for -J7- disposing of an application which is what the plaintiff was trying to do. That it could not be the intention of the plaintiff who brought the case to Court to dispose of it on a point of law without proceeding to trial. 10.2 The trial Judge concluded that the plaintiff's preliminary issue was misconceived. That the plaintiff should have filed an affidavit in opposition and skeleton arguments in opposition to the defendant's application instead of raising a preliminary objection. The preliminary issue was accordingly dismissed. The plaintiffs application to expunge the defence 10 .3 The Judge noted that where a defendant fails to enter an appearance and defence, the plaintiff may apply for judgment in default of appearance. The Court ought not to move on its own motion to enter a judgment in default of appearance . Therefore, as soon as the plaintiff noticed that the defendant's time to file its defence had lapsed, he ought to have filed an application for entry of judgment in default of appearance. By failing to make that application before the defendant filed its defence, the plaintiff slept on his rights. Consequently, in light of Order 11 rule 1 (3) of the High Court Rules as amended by Order 5 of the High Court (Amendment) Rules, the Judge -JS- held that the defence was properly filed before the court, even though it was filed after the time frame prescribed by Mapani Kawimbe, J. This application was dismissed as well. The defendant's application to amend the defence, list of witnesses and list of documents 10. 4 The lower court considered Order 18 Rule 1 of th e High Court Rules and some authorities including the cases of Katleman and others v . Hansel Properties and Others and Joseph Gereta Chikuta v. Chipata Rural Council on amendments. 10.5 After considering the application and the defendant's draft amended defence, the Judge opined that the amendments do not raise new issu es, and are not likely to cause any prejudice to the plaintiff. Further, that the application had been made at an early stage in the proceedings and would not undermine the just resolution of the dispute between the parties. In any case, the amendments would clarify the issues in dispute between the parties. 10.6 In light of those observations, the trial Judge granted leave to th e defendant to amend its defence, list of witnesses and list of documents. -J9- 10.7 He accordingly ordered the defendant to file its amended defence, list of witnesses and list of documents within 14 days from the date of the ruling. The plaintiff was ordered to file its reply within 10 days after receiving the amended defence . 11 .0 GROUNDS OF APPEAL 11 . 1 The appellant advanced two grounds of appeal framed as follows: l . The court below erred in law and fact not to have given weight to an order of court of competent and equal jurisdiction passed on 12th September 2022, requiring the respondent to file its defence within 14 days of the said order thereby finding the said filed defence as being properly on record pursuant to Order 11 rule 1 (3) of the High Court Rules and consequently declining to expunge the respondent's said defence though filed out of time and without leave of Court. 2. The court below erred in law and fact in granting the respondent leave to amend inter alia, the defence as filed in the wake of the challenge that the respondent's defence having been filed out of -Jl0- time and without leave of court thus being improperly on record could be amended as per ruling of t he Court below. 12.0 APPELLANT'S HEADS OF ARGUMENT 12. 1 The appellant relied on the heads of argument filed on 18th August 2023, wherein in support of ground one, counsel submitted that the holding by the lower court that the defence was properly filed is erroneous and legally flawed. He referred us to Order 11 rule 1 (3) of the High Court Rules which the lower court also relied on, to advance the argument that the lower court should have determined the effects of non-compliance with the Order of Justice Kawimbe of 12th September 2022 , which had prescribed a period within which the respondent was to file defence. It was submitted that the respondent and the lower court were bound by this order. 12.2 Counsel further referred us to the section 4 of the High Court Act, on the powers and jurisdiction of the High Court Judges as the well as the case of In The Matter of protection of fundamental rights and freedoms of t he individual and the matter of art icles 20 (6) and 29 of the Constitution of Zambia Mundia Sikatana v . The Attorney General1 -Jll- (hereinafter referred to as Mundia Sikatana v. The Attorney General1 where it was held that: "A Judge of the High Court has no jurisdiction to reopen and reconsider and interfere with and comment upon a matter already determined by another Judge of equal jurisdiction." 12.3 And the case of Barclays Bank Zambia (z) Pie v . Frank Mutambo & another2 where this court stated as follows: "The correct position is that where it is ordered that something should be done by a certain date or time, the import is that the set time or date is the latest that activity should be done and not beyond that time." 12.4 Counsel emphasized that the reasoning of the court below in finding that the defence filed by the respondent was properly on record was against the guidance of this Court in the aforementioned case. 12.5 Reference was made to the case of Standard Charted Bank Zambia PLC v. Wisdom Chanda and another3 where it was elucidated that: -J12- "Any reason no matter how well articulated cannot of its own cure a defect. The party concerned must take out an appropriate application seeking to cure a defect and that the court had no mandate to choose to ignore t he defect a nd of its own motion proceed as if the defect never existed." 12.6 According to counsel, the lower court misdirected itself when it declined to expunge the respondent's defence which was filed out of time and without leave of court. 12.7 Counsel further submitted that the issue in this case was not whether the appellant had delayed to apply for entry of judgment in defau lt of appearance and defence bu t whether a party can ignore a court order prescribing the time frame within which to file defence by treating such order as inconsequential and of no effect simply because judgment in default had not been entered or applied for. 12.8 In arguing the 2 nd ground of appeal, counsel noted that the success of this ground was tied to the first ground. That being the case, it was argued that a finding by this court that the defence filed by the respondent was improperly on the record will trigger the qu estion wh ether an improperly filed -J13- document could be amended. Counsel contended that an improperly filed document which should not h ave graced the record cannot be amended and the court was precluded from treating the defect as inconsequential. That in cases where litigants have filed documents wrongly and have not crossed the rubicon as have the respondents, courts have allowed for withdrawal of such wrongly filed documents and consequently allowed for refiling of the same. In support of this submission, we were referred to a number of cases including Barclays Bank Zambia PLC v . Jeremiah Njovu & 41 Others4 where the Supreme Court in allowing withdrawal and filing of documents stated as follows: "In any case, we do not believe that this court, exercising its inherent jurisdiction in deciding on the justice of each case, would be precluded from allowing withdrawal of a document filed before the court. Before the same is considered. In any event, given our views on costs, we do not perceive any prejudice being occasioned to the respondents by the withdrawal of the record of appeal with a view to filing it again." 12. 9 We were urged to allow the appeal. -Jl4- 13.0 RESPONDENT'S HEADS OF ARGUMENTS 13.1 The respondent relied on the heads of argument filed on 15th September 2023. Counsel for the respondent argued grounds 1 and 2 simultaneously as the order of court appealed against in ground 2 arises from the order being challenged in ground 1. Counsel contended that the court below was on firm ground when it found that the defence was properly on record in accordance with Order 11 rule 1(3) of the High Court rules. Following that order, the court below was on firm ground to grant the respondent leave to amend the defence. 13.2 Counsel for the respondent opined that the case of Mundia Sikatana v. The At torney General, 1 relied on by the appellants in ground one, was wrongly used as authority as it is anchored on the English Law Principle of res judicata. The context within which the statement (quoted above in the appellant's heads of argument) was made in relation to a case that had been heard and determined on its merits. Counsel proceeded to state the brief facts of the Sikatana case and quoted a substantial paragraph from it which we shall not restate here for reasons that will be made clear. But we note the point made by counsel that in the Sikatana case, the petitioner admitted that he was asking the High Court to determine an issue that had already been finally determined -JlS- by a Court of equal jurisdiction. That is not the case in the present matter as the order of Kawimbe, J was interlocutory in nature. That the order of Kawimbe J of 12th September 2022, did not have a res judicata effect in relation to the question of filing a defence, neither did it have that effect in relation to the substantive matter itself. 13.3 Counsel argued further that if Kawimbe J, had issued an unless order in relation to the filing of the defence, the appellant may have plausibly advanced the argument that the order of the Court in relation to that matter had a res judicata effect. The appellant has argued that the defendant should have obtained an order to file a defence out of time and the failure or refusal of the court below to insist on that was an error in law and fact. It was argued that this submission has no basis in law or fact. 13.4 According to the respondent's counsel, the directive that Kawimbe J, gave the parties to refile their pleadings was not peremptory in nature. That in directing the parties to refile their pleadings, the effect of the order was to put the parties back in the place that they were in at the time that the action was commenced as even the timelines for compliance were similar. Further, the appellant was directed to cite the -J16- defendant correctly, failure to do so would have entitled the respondent to apply for misjoinder. 13. 5 Counsel further argued that in the case of Barclays Bank (z) PLC v. Frank Mutambo & Another2 cited by the appellants, the Court of Appeal made that statement in specific relation to an interpretation that a puisne Judge gave when allowing submissions that were filed late. An application to expunge the plaintiff's final submissions that were filed out of time was granted. What was in issue was computation of time for filing heads or argument. 13.6 Counsel further submitted that the High Court rules are specific regarding periods within which a party can and cannot enter appearance and defence. Where a default judgment has been filed, a party cannot enter appearance . In the present case there was no defaultjudgment on the record. Therefore the defendant was not estopped from entering the said appearance and defence considering Order 1 1 Rule 3 of the High Court (Amendment) Rules 2020 which states as follows: "The Court shall not accept an appearance after the entry of judgment in default of appearance unless the judgment in default of appearance is set aside." -J17- 13.7 Counsel submitted that the above rule implies that any appearance and defence, filed before default judgment is entered, is considered to be properly filed. In this case, appearance and defence were filed before judgment in default could be entered. Counsel went on to explain that unless orders or peremptory orders have to set out the consequences of failing to do the specified act and should if possible specify the time and when the act should be done. That was not the case. 13.8 In light of the foregoing, the court below was on firm ground in taking the position that the court could not move on its own motion to enter default judgment in the absence of an unless order. That even where there has been a failure to comply with an unless order, that does not necessarily mean that the action is dead or defunct. The case of Ruth Kumbi v. Robinson Kaleb Zulu5 was cited in support of this submission. 13. 9 Counsel also cited the cases of Waterwells Limited v Wilson Samuel Jackson and Stanely Mwambazi v. Morrester Farms Limited, 6 where it was held that triable issues should come to trial despite the default of the parties. It is not in the -J18- interest of justice to deny the defaulting party the right to have his case heard. 13.10 Counsel submitted further that the court below was on firm ground in holding that the respondent's defence was properly on record and in allowing an amendment of the same. 14.0 APPELLANT'S HEADS OF ARGUMENT IN REPLY 14.1 The appellant filed heads of argument in reply on 26 th October 2023 wherein Counsel for the appellant submitted that contrary to the respondent's argument, this appeal is not about unless orders or peremptory orders. The real question for determination is whether or not there was a court order by a competent court prescribing a time frame for the respondent to file a defence and whether the respondent complied with the same. 14.2 What is clear is that the defence filed outside the 14 days ordered by Justice M. Mapani-Kawimbe, without leave or extension of time, entails that it ought not to have been on the record and should be expunged. 14.3 On the Barclays Bank (z) PLC v. Frank Mut ambo & Another2 case, counsel submitted that contrary to the -J19- respondent's argument that this Court's comments in that case were centered on computation of time, this Court was categorical in making the point that parties ought to file documents in time, failure to which they may face the consequences of their delay. 15.0 ANALYSIS AND DETERMINATION 15.1 We have prudently considered the record of appeal and the arguments made by counsel for both parties. The two grounds of appeal will be dealt with together as they are connected. 15. 2 In the 1 st ground of appeal, the appellant claims that the court below did not recognize the order of a court of equal jurisdiction dated 12 th September 2022, requiring the respondent to file its defence within 14 days. The appellant also challenges the lower court's refusal to expunge the respondent's defence which was filed out of time without leave of court. 15.3 It is common cause that on 12th September 2022, Kawimbe J, passed an Order directing the respondent to file a defence within 14 days of the Order. The respondent filed its defence on 6 th October 2022, after the 14 days had elapsed. -J20- 15.4 Order 11 of th e High Court Rules as amended by Order 5 of the High Court (Amendment) Rules provides for entry of appearance by a defendant as follows : "1(1) A defendant shall enter appearance to a writ of summons by delivering to the proper officer- in writing or electronically, sufficient Copies of the- (a)memorandum of appearance dated on the day of delivery and stating, as the case may be- (i) the name of the defend ant's advocate: or (ii) that the defendant is defending in person: and (b) defence and the counterclaim, if any, together with a list of- (i) description of documents to be relied on by the defendant at trial; and (ii) list of witnesses to be called by the defendant at trial. (2) ......•.•. (3) The Court shall not accept an appearance after the entry of judgment in default of appearance unless the judgment in default of appearance is set aside." -J21- :: 15.5 The import of the above-cited provisions of the law is that where a defendant fails to enter an appearance, the plaintiff may apply for judgment in default of appearance. 15.6 It is not in dispute that the appellant only applied to expunge the defence and enter judgment in default of appearance on 25th October 2022, after the defendant had already filed its defence, albeit out of time, without leave of court. 15. 7 Therefore, we cannot fault the lower court for finding that by failing to make that application before the defendant filed its defence, the appellant slept on his rights. 15.8 The appellant's contention that Judge Pengele ignored the Order of Judge Kawimbe dated 12th September, 2022 and that the defence should not have been placed on the record as it was filed out of time without leave of court, cannot stand because the Court below took cognizance of the Order dated 12th September 2022. It also took note that according to Order 11 Rule 3 of the High Court Rules as amended by Order 5 of the High Court (Amendment) Rules, the defence was properly before Court. -J22- 15. 9 The Judge stated as follows: "Consequently, in light of order 11 Rule 1(3) of the High Court Rules as amended by Order 5 of the High Court (Amendment) Rules, I hold that the defence that was filed by the defendant is properly before court, even though it was filed after the time- frame prescribed by Mopani-Kawimbe J." 15.10 We h old the view that the court below properly applied the law and exercised its discretion to refuse to expu nge the defence from the record because firstly, the order given by Kawim be J, was not a peremptory one in that it did not state the consequences of non-compliance. Hence, a Judge of equal jurisdiction could exercise his or her discretion to allow the defence in the interest of ju stice. 15.11 Secondly, under Order 11 Rule 1 (3) of the High Court Rules as amended by Order 5 of the High Court (Amendment) Rules, the defence cou ld be accepted by the court as it was filed before the appellant had applied for entry of judgment in default of appearance. Courts are enjoined to administer justice without u n due regard to procedural technicalities. -J23- Article 118 (2) (e) of the Constitution of Zambia, provides that:- "(2) In exercising judicial authority, the courts shall be guided by the following principles: (e) Justice shall be administered without undue regard to procedural technicalities." 15 .1 2 In the case of Henry M Kapoko v. The People,6 the Constitutional Court interpreted Article 118 (2) (e) of the Constitution as follows: "Article 118 (2) (e) is not intended to do away with existing principles, laws and procedures, even where the same constitute technicalities. It is intended to avoid a situation where a manifest injustice would be done by paying unjustifiable regard to a technicality." 15.13 The facts of this case present minor procedural lapses or technicalities and it would not be in th e interest of justice to give undue regard to the fact th at the respondent failed to file its defence within 14 days and allow the appellant to enter judgment in default of appearance when there is a defence on record. -J24- 15.14 Despite the default of the parties, they should not be prevented from proceeding to trial by irr egularities, which can be cured without injustice. We are fortified by the case of cases of Waterwells Limited v Wilson Samuel Jackson 7 and Stanely Mwambazi v . Morrester Farms Limited. 8 15.15 The appellant has not at any point stated that the defence does not raise triable issues. Allowing the matter to proceed to trial will not prejudice the appellant in any way. In light of the foregoing, ground one is bereft of merit. 15.16 We take note that ground two rides on the success or failure of ground one. Since the first ground of appeal is unsuccessful, it follows that the second ground of appeal also fails. -J25- - 16.0 CONCLUSION 16.1 In closing, the appeal is dismissed for lack of merit. We order that the matter shall proceed to trial before the same Judge. Nevertheless, the costs will abide the outcome of the matter in the court below. ·····c:i<. M~ ··· COURT OF APPEAL JUDGE . A. SHARPE-PH RI COURT OF APPEAL JUDGE -J26-