First National Bank Zambia Ltd v Pro-Fab Limited and Ors (HP 47 of 2016) [2017] ZMHC 218 (31 August 2017)

IN THE HIGH COURT FOR ZAMBIA 20 16/HP/0047 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Commercial Registry) BETWEEN: O 'OUR I JUDiCIARY I7 r • - COMMERCIAL REGtSTR BOX 5oIJ67,L'J FIRST NATIONAL BANK ZAMBIA LIMITED APPLICANT AND PRO-FAB ZAMBIA LIMITED ALEXANDER ZIMBA MICAHEL ZULU WINNFRIDAH CHITONDO 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT 4th RESPONDENT Before t'ie Honourable Justice B. G. Lungu on the 8th day of February, 2017 in I Chambers. For the A For the R eplicant (cid:9) isponderits: Mr. E Khosa, Messrs Nganga Yalenga & Associates Mr. Moonga, In - house Counsel RULING CASES REFERRED TO; 1. Commonwealth Development Corporation vs. Central African Power Corporation (1968) Z. R 70; 2. Mich4el Chilufya Sata v. Chanda Chiimba III Zambia National Broadcasting Corporation, Muvi TV Limited, Mobi TV International Limitd; Ri I P a 3. (cid:9) Nida Properties Limited vs. Omnia Fertilizer Limited, Appeal No. 164 of 2013. LEGISLATION AND OTHER WORKS REFERRED TO: 1. Section 10, High Court Act, Chapter 27 of the Laws of Zambia; 2. Order 28, Rule 1A, Rules of the Supreme Court, 1965 (1999 edition), the White Book; 3. Order LIII, Rule 10, High Court Rules, High Court Act, Chapter 27 of the Laws of Zambia This is an application on the part of the Applicant for an order that the 4th Respondent's Further Affidavit, 2nd Further Affidavit and Skeleton Arguments be expunged from the record. The a lication was made by way of Summons, filed together with an Aff avit in Support, sworn by Theophilus Tukwayo Gausi, and Skelet irguments, all of which were filed on 25th November, 2016. In ordr to clothe this application with perspective, I find it necess docum at this juncture, to pen the chronology in which ts were filed as between the Applicant and 4th Respondent: i. On 3rd February, 2016, the Applicant commenced roceedings against the Respondent by way of Originating ~, .ummons and a supporting Affidavit; R2 I P a p e On 4th April, 2016, the 4th Respondent filed her Affidavit in Opposition to the Originating Summons; iii. On 2nd June, 2016 the 4th Respondent filed a Further Affidavit in Opposition to the Originating Summons; iv. On 7th June, 2016, the Applicant file an Affidavit in Reply to the 4th Respondent's Affidavit in Opposition to the Originating Summons; and On 8th September, 2016 the 4th Respondent filed a 2nd Further Affidavit in Opposition to the Originating Summons together with Skeleton Arguments of even date It is t ç filing of the 4th Respondent's Further Affidavit, 2d Further Affidavl and associated Skeleton Arguments that the Applicant takes Jsue with. In their Skeleton Arguments, Counsel for the Applicant submit that Order 28 rule 1A of the White Book prescribes the procedure for the recepti. of affidavit evidence in any cause or matter begun by originaiing summons. The procedure was articulated to commence with an. fidavit in support of the originating summons, on the one hand; t.l be countered by an [opposing] affidavit on the other hand; which i' turn was to be countered by an affidavit [in reply] from R3 1 P a g, e first hand. Moreover, that once the affidavit (in reply) was filed, no other affidavit could be received in evidence without leave of Court. The Applicant observed that the 4th Respondent neither sought nor obtained leave of Court to file its supplementary affidavits in opposition and skeleton arguments. (cid:9) Consequently, it was contended that the said documents were irregularly before Court and ought to be expunged, with costs to the Applicant. The 4h Respondent opposed the application to have its further affidavits and accompanying skeleton arguments expunged. The opposition was premised on an Affidavit in Opposition and Skeleton Argunnts filed on 7th February, 2017. In opp sing the application, the 4th Respondent did not attempt to rebuff aving filed extra affidavits without leave of Court. Instead, a justific tipn was tendered on the proposition that it was not a mand requirement for leave of Court to be obtained before an excess number of affidavits could be filed into Court. The propos ion was anchored on the case of Commonwealth Development Corpor' Ion vs. Central African Power Corporation (1968) Z. R 701, where the HiV1 Court held that "Affidavits in excess of the number normally submittd under the High Court Rules and Practice may be admitted into evidenc In the discretion of the Judge especially when neither side objects . their inclusion." R4 I P d ci C Given the holding in the Commonwealth Development Corporation, Counsel for the 41i Respondent beseeched the Court to exercise its discretion to admit the supplementary affidavits and skeleton arguments in question in order to achieve justice. Aside the appeal to the Court to exercise its discretion in favour of its client, Counsel for the 4th Respondent, in a rather glib manner, attempted to introduce evidence in the Skeleton Arguments to show that the Applicant was without clean hands. I will not consider that line ofargument as there is nothing in the Affidavit in Opposition to this ap.lication to supports that contention. mow1 ove to consider the law governing the reception of affidavit eviden in the High Court in cases begun by originating summons. In thi regard, I noticed that the Applicant placed significant relianc on the White Book to aid it in identifying the procedure to be ado. ted. This compelled me to journey into the erudition of the status I! f the White Book on High Court practice and procedure. I recalled tI.at Section 10 of the High Court Act clearly makes reliance or the practice and procedure contained in the White Book a defaul reference in circumstances where our rules are deficient. Section 1, 0 (1) reads as follows: "The jun diction vested in the Court shall, as regards practice and procedure be exercised in the manner provided by this Act, ..., and in R5 1 P a g e default thereof in substantial conformity with the Supreme Court Pract ice, 1999 (White Book) of England..." My Learned brother, Justice Dr Patrick Matibini, SC (as he then was), had occasion to explicate the use of section 10 (1) of the High Court Act in the case of Michael Chilufya Sata v. Chanda Chiimba III Zambia National Broadcasting Corporation, Muvi TV Limited, Mobi TV International Limited2, where he held that "The Rules (of the White Book) are to be resorted to, only when it is necessary to fill a lacuna or gap in our own rules of procedure." I am persuaded by this interpretation of section 10 (1) of the High Court and adopt it. Given \t he interpretation of section 10, I thoroughly examined the High •ourt Act and attendant Rules, which examination revealed that t er appeared to be no comprehensive procedure expressly provid. therein. The absence of granular prescription exposes our Rules io lacuna, thereby giving way to the use of the default mech. tism afforded by of the White Book. Consequently, I am persua. ed by the Applicant to adopt the procedure articulated in Order . , rule 1A of the White Book to the extent that substantial confor 'tyk will reasonably permit. In view of the foregoing, it is clear that in the ordinary scheme of practice in the High Court, where a case is commenced by an originati g summons, the affidavit evidence must flow from an affidavitlini support to an affidavit in opposition, if any, to an R6 I P a g e affidavit in reply, if any. The affidavit in reply marks the close of reception of affidavit evidence except with the leave of Court. I adopt the principal that the reception of additional affidavit evidence must be preceded by the grant of leave of Court on the back of the case of Nida Properties Limited vs. Omnia Fertilizer Limited, Appeal No. 164 of 2013. In that case, the Supreme Court declined to fault the learned trial judge for ignoring the additional and further affidavit filed by the plaintiff because no leave was obtained to permit the plaintiff to file the said affidavits. Coming to the Respondent's contention that the Court has a discreti n to permit extra affidavits in the interest of justice, I hasten agree that such jurisdiction in fact exists. However, there are Rule of Court which exist to facilitate an application by a party who see s to move the court to exercise such jurisdiction. In the C ommer ial Court, Rule 10 of Order LIII of the High Court Rules facilitate such interlocutory applications. A party c: not of its own accord disregard the Rules of Court on the basis Ithat the party considers that it is justified in so doing. That, in y view, would bring chaos to the Rules of practice and procedure s we know them. R7 I P a g e For (cid:9) e foregoing reasons, I agree that the absence of leave of Court 1 I permitting the 41h Respondent to file the Further and 2nd Further Affidavit renders the said Affidavits irregularly before Court. Consequently, the Affidavits in question are expunged from the recor Costs of this application are awarded to the Applicant, to be taxed in default of agreement. Leave to appeal is granted. Dated this 31st day of August, 2017 Lady Justice B. G. Lungu HIGH COURT R8 I P a g e