Joseph Mundubi v Zambia National Commercial Bank Plc and The Attorney General (APPEAL NO. 171 OF 2023) [2024] ZMCA 92 (3 May 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 171 OF 2023 HOLDEN AT LUSAKA (Civil J urisdiction) BETWEEN: JOSEPH MUNDUBI AND - . APPELLANT ZAMBIA NATIONAL COMMERCIAL BANK PLC 18 T RESPONDENT THE ATTORNEY GENERAL 2ND RESPONDENT CORAM: Chashi, Makungu and Sichinga, JJA ON: 27th March and 3 rd May 2024 For the Appellant: L. E. Eyaa and J. Tembo, Messrs Linus E. Eyaa & Partners For the 1 st Respondent: N. S. M Simachela (Mrs) and N. Nalomba (Ms), Messrs Nchito & Nchito For the 2nd Respondent: N/A JUDGMENT CHASHI JA, d elivered the Judgment of th e Court. Cases referred to: 1. Indo Zambia Bank Limited v Christine Banda - SCZ Appeal No. 178 of 2014 2. Prisca Matimba Nyambe v Bank of Zambia - SCZ Appeal No. 207 of 2012 -J 2- 3 . Philip K. R Pascall & 5 Others v Zccm Investments Holdings PLC - CAZ Appeal No. 92 of 2018 4. Kasoma v Attorney General (2010) Vol 3 , ZR 143 Legislation referred to: 1 . The Limitation Act, 193 9 Rules referred to: 1. The Supreme Court Practice (White Book) 1999 Other authorities referred to: 1. Clerk & Lindsell on Torts - 2()th Edition 2. Halsbury's Laws of England - 3 rd Edition, Vol 25 3. Zambian Civil Procedure: Commentary and Cases, Vol l - Patrick Matibini, LexisNexis 1.0 INTRODUCTION 1. 1 This is an appeal against the Ruling of Honourable Mr. J u stice T. I. Katan ekwa delivered on 16th December, 2022. 1.2 In the said Ruling, t h e learned Judge dismissed the Ap pellant's cau se of action for being statu te b arred . 2.0 BACKGROUND 2 .1 On 19th Novem ber 2 0 20, th e Appellant (wh o was th e plaintiff in the cou rt below) commenced an action against -J 3- the two Respondents by writ of summons, claiming aggravated and exemplary damages for false imprisonment and malicious prosecution. 2 .2 According to the attendant statement of claim, the Appellant was falsely imprisoned and prosecuted at the instigation of the 1 st Respondent (the Bank) for the offences of forgery of a judicial document, forgery of a letter of instructions and obtaining money by false pretences. 2 .3 The Appellant was acquitted vide Judgment delivered on 12th June 2001, and a notice of acquittal (the notification) to that effect was issued. It was averred that, when the Appellant's lawyer 1n 2001, sought to uplift the notification from the court registry, for purposes of commencing an action against the Respondents, he was advised that the court case record was not available, as it had been signed off by Mr. Katongo, the Divisional Prosecutions Officer. 2.4 It was further averred that the lawyers made several attempts to retrieve the record from Mr. Katongo to no -J 4- avail, as they were informed that the court record had gone missing. On 13th July 2020, the Appellant was contacted by police officers at Handsworth Police Post, and informed that documents relating to him had been recovered together with some stolen items. Amongst the documents recovered were the notification and some correspondence from the Bank to Mr. Katongo, in which the Bank was requesting Mr. Katongo to conceal the court record, so that the Appellant would not be able to sue the Respondents. 2.5 The Bank settled its defence on 21 st March 2022, denying the allegations. In addition, it averred that each and every claim were statute barred as the Appellant was acquitted in 2001 and only commenced proceedings in November 2020. 3.0 PRELIMINARY ISSUES 3.1 On 11th May 2022, the Bank took out a motion to raise a preliminary issue on a point of law as follows; -J 5- (1) That the Appellant's action which was statute barred, was also commenced without obtaining leave for extension of time within which to commence the action, as such ought to be dismissed. (2) That if the action is statute barred, that it be dismissed with costs. 3 .2 The court below was moved pursuant to Order 14 A and 33(3) of The Rules of the Supreme Court1 (RSC). According to the Bank, the action was commenced nineteen ( 19) years after the cause of action accrued in 2001. Reliance was placed on Section 2(1) (a) of The Limitation Act, 1939 1 , which limits the period in respect to actions founded on simple contract to six (6) years. 3 .3 The motion was opposed by the Appellant, who pleaded Section 26(b) and (c) of The Limitation Act1 and asserted that, time only started running on 13th July 2020, when the concealed fraud was discovered by the Appellant. 4.0 DECISION OF THE COURT BELOW -J 6- 4 . 1 After considering the motion and the arguments, the learned Judge was of the view that, the mere fact that the notification was not available, did not mean that the Appellant was not acquitted, because the notification was merely evidence of acquittal. Further that, the notification was not the only evidence, as the Appellant himself, the co-accused and the court officers who were there and witnessed the acquittal could speak to the acquittal. 4.2 The learned Judge was strongly of the view that the action could still have been commenced without the notification. In addition, the learned Judge noted that there was no application for leave to make the application outside the limited period. 5.0 THE APPEAL 5.1 Dissatisfied with the Ruling, the Appellant appealed to this Court advancing two grounds as follows; -J 7- (1) That the learned High Court Judge erred in law and fact when he found that one piece of evidence being notice of acquittal wrongly hidden did not prevent the Appellant from suing and that the action could still have commenced without considering that the whole court case record had been missing and the notice of acquittal and the letter from the Respondent to the 2 nd Respondent were the only things recovered by the police; (2) That the learned High Court Judge erred in fact and law when he found that the matter is statute barred without properly considering the exception to the general rule on the statute barred claims as it applied to the matter before him. 6 .0 ARGUMENTS IN SUPPORT OF THE APPEAL 6. 1 At the hearing , Mr Eyaa, Counsel for th e Appellant r elied on the h ead s of argument which were filed on 7 th J une -J 8- 2023, and augmented the same with brief oral submissions. 6 .2 In arguing the first ground of appeal, it was submitted that there 1s documentary evidence pointing to the fraudulent concealment of material facts, which prevented the Appellant from commencing the law suit in time, which the Appellant only became aware of after nineteen (19) years, after the police who discovered the documents informed the Appellant. 6.3 According to Counsel, it was not legally tenable for the Appellant to commence legal proceedings in the absence of the evidence which was fraudulently concealed by the Respondents. 6.4 In arguin g the second ground, our attention was drawn to the case of lndo Zambia Bank Limited v Christine Banda 1 where the Supreme Court held that: "Section 26 of the Limitation Act, 1939 anchored on mistake afforded the Respondent -J 9- another window which had served to postpone the limitation period." 6.5 The Appellant a lso relied on the Supreme Court case of Prisca Matimba Nyambe v Bank of Zambia2 where it was stated a s follows: " ... On its proper construction, this section operates to postpone the clock for limitation period. Where the defendant fraudulently conceal the plaintiffs right of action, time will start running at the time of discovery of the fraud or when the plaintiff could, with reasonable diligent, have discovered it." 6.6 Relying on section 26 (b) and (c) , the Appellant contended that, time only started to run when the Appellant discovered the fraud by the Respondents. In further reliance on the Christine Banda 1 case, it was submitted that the court was quite clear in its decision that, there was no n eed for the Respondent to file an application for leave to comm ence her case. 7.0 1 sT RESPONDENT'S ARGUMENTS IN OPPOSITION -J 10- 7 .1 In response to the first ground, Mrs Simachela, Counsel for the Bank, submitted that the learned Judge in the court below, was on firm ground when he held that, the non availability of one piece of evidence did not prevent the Appellant from suing. 7 .2 It was submitted that the notification was not the only available evidence regarding the acquittal. The Appellant had other available evidence apart from documentary evidence such as oral testimony. It was submitted that the Appellant and his co-accused were the most suitable persons to be called as witnesses to speak to the issue of malicious prosecution and false imprisonment. 7 .3 According to Counsel, the notification despite being viewed as evidence of acquittal, was not necessarily material evidence that would make it legally untenable to commence legal proceedings relating to malicious prosecution. Counsel drew our attention to the learned -J 11- auth ors of Clerk & Lindsell on Torts1 at page 1070, paragraph 16-09 where it was stated a s follows: "In an action for malicious prosecution, the claimant must show he was prosecuted by the defendant, that is to say that the law was set in motion against him by the defendant in a criminal charge; secondly that the prosecution was determined in his favour; thirdly that it was without reasonable and probable cause and fourthly, that it was malicious." 7.4 Fu rther reliance was placed on the learned authors of Halsbury's Laws of England2 at p age 36 1, where it provides in respect to evidence in an action for damages for malicious prosecution as follows: "The burden of proof in an action for damages for malicious prosecution lies in the first instance on the plaintiff. It is not sufficient for him to prove that he was innocent of the crime for which he was prosecuted by the defendant -J 12- by proving that the prosecution terminated in his favour. He must also show that the defendant acted maliciously and without reasonable and probable cause." 7. 5 According to Counsel, the alleged hiding of the court record or the non-availability of the notification did not prevent the Appellant from suing and could have still commenced an action in time . 7 .6 In response to the second ground, it was submitted that as shown by the writ of summons at page 144 of the record of a ppeal, the cause of action against the Respondents was for false imprisonment and malicious prosecution, whose period of Limitation is six (6) years from the date of which the cause of action accrued. 7.7 According to Counsel, the Christine Banda1 case 1s distinguishable from this case, as in that case, the issue of extension of time did not apply and was therefore never considered. That in casu the Appellant was fully aware that the court delivered its Judgment in a criminal -J 13- matter and he was acquitted of all charges. That therefore time started running at the time the Appellant was acquitted on 12th June 2001. It was contended that the Appellant was fully aware of his acquittal, thus his right of action for malicious prosecution was never concealed. 7 .8 On the issue of extension of time, our attention was drawn to the learned author of Zambian Civil Procedure: Commentary and Cases Volume 1 3 at page 160 where the author stated as follows: "However, the court may in certain instances extend the limitation period. In Kasoma v Attorney General, an application was made for leave to commence an action after the statutory limitation period as provided under the Limitation Act ... But the court noted that the application should have been made under part II of the limitation Act, which gives the court the jurisdiction to extend the limitation period -J 14- in the case of disability, acknowledgement, part payment, fraud and mistake." 7. 9 It was submitted that the Appellant ought to have made an application to the court for extension of time within which to institute action, as h e was alleging fraudulent concealment in order to change the effective date when the cause of action accrued and time started running. 8.0 OUR ANALYSIS AND DECISION 8.1 We have considered the Ruling being impugned and the arguments by the parties. Although the two grounds of appeal have been argued separately by the parties, we will deal with them concurrently as they are entwined. The grounds in our view raise two issues for determination as follows : (i) When did the cause of action accrue in this matter, in order for us to determine whether it was statute barred or not; -J 15- (ii) Did the Appellant need to apply for extension of time before commencing the court action. 8.2 In resolving the first issue, it is not in dispute that the Appellant was arrested and detained and was subsequently prosecuted. It is also not in dispute that he was acquitted by the court of all charges on 12th June 2001. 8.3 We have noted the authorities which have been advanced by the Bank, on what a party needs to show in a case for malicious prose cution. It is clear from those autho ritie s that what arises is the question of reasonable and probable cause. 8.4 As earlier alluded to, the Appellant was acquitted and the acquittal was known to the Appellant as it was never concealed. In our view, the cause of action accrued on 12th June 2001, when the acquittal was pronounced and that is when the time started running. 8.5 We do not agree with the Appellant that he could not -J 16- commence an action for false imprisonment and malicious prosecution in the absence of the notification and the case record. In 2001, when the Appellant was acquitted, the court procedure only required the plaintiff to file a writ of summons and statement of claim in commencing an action. The procedure at the time did not require one to file documentary evidence nor witness statements. Therefore neither the notification nor the court record were sine qua non to the commencement of the action. 8.6 We are in agreement with the learned Judge of the court below, that the notification was just part of the evidence which was to be subsequently called in aid of the Appellant's case. In any event, if the notification was not available, the Appellant was at liberty to subpoena the Clerk of Court as custodian of the court documents, to produce the notification and the Judgment of the court. 8.7 We do not agree with the Appellant that it was not tenable to commence proceedings in the absence of the -J 17- court record. What that entails is that the Appellant was not going to sue the Respondents as long as the notification was not made available. 8.8 In our view, what was of essence was that there was a Judgment under which the acquittal was pronounced and the Clerk of Court, could attest to that fact, as much as the other court officials and witnesses who witnessed the event. 8. 9 In the view that we have taken, the matter is statute barred and we see no basis on which to fault the Judge. 8.10 Turning to the second issue on whether the Appellant needed to apply for extension of time before commencing the court action, we must from the onset state that the Christine Banda1 case relied upon by the Appellant, never addressed nor interrogated the issue of extension of time. It is therefore misleading for the Appellant to place reliance on that case and allege that the Supreme Court was quite clear in its decision that there was no need for the Respondent to file an application to -J 18- commence her case. That submission 1s totally misleading a nd we admonish Counsel for the Appellant to desist from such con duct. 8. 11 We have taken note of the preliminary notes by the learned authors of Halsbury's laws of England2 on limitation of actions as regards extension of limitation periods when they state at page 57 as follows: "Part 11 of The Limitation Act 1939, provides for extension of the periods of Limitation cases where the plaintiff was under disabi lity at the time when the cause of action accrued, and was not then in the custody of a parent (S.22), in case of acknowledgement in writing or part payment by the defendant or his predecessor or agent (S.23-25) and in cases where the action is based on fraud or the right of action was fraudulently concealed or the action is for relief from the consequences of a mistake (S.26)." • 8.12 It is evident from the aforestated quote that the ordinary -J 19- time limits given in Part I of the Limitation Act are subject to extensions or exclusion in accordance with the provisions of Part II of the Act. This position we affirmed in the case of Philip K. R Pascall & 5 Others v ZCCM Investment Holdings PLC3 at page J 1 7 when we stated as follows: "It should therefore be noted that the periods of limitation for different classes of action provided under Part I of the Act are subject to provisions provided for under Part 11 of the Act." 8.13 The Appellant in the court below alleged fraudulent concealment which is provided for under section 26 of the Act on postponement of limitation period in case of fraud or mistake. Section 26 provides as follows: "26. Postponement of Limitation in case of fraud or mistake • • -J 20- Where in the case of any action for which a period of Limitation is prescribed by this Act either- (a) The action is based upon fraud of the defendant or his agent or of any person through whom he claims or his agent or (b) The right of action is concealed by the fraud of any such person as aforesaid or (c) The action is for relief from the consequences of a mistake." 8.14 The Bank made reference to the learned authors of Zambian Civil Procedure Commentary and Cases3 at page 160, where the case of Kasoma v Attorney General4 was cited. In that case an application was made for leave to commence an action after the statutory period as provided under the Limitation Act 1 . Whilst such applications are permitted, Part II of the Act does -J 21- n ot m ake su ch applications a mandatory precur sor to th e comm encement of action s . 8 . 15 It's for that reason that the defendant can p lead and set up in its defence the limitation period on ce it has expired. The learned au thors of Zambian Civil Procedure: Commentary and Cases3 at page 161 states as follows: "Once the Limitation period has expired, the defendant can set it up as a defence. However for it to inure i n favour of the defendant, the defendant must specifically plead it. Limitation is therefore a procedural defence. Thus the only consequence of the expiry of a limitation period is that the defendant acquires a technical defence to the claim. If proceedings are brought outside of the limitation period, they will not be a nullity, it being incumbent on the defendant to plead a defence based on the expiry of the limitation period for that cause of action." - 9.0 CONCLUSION -J 22- 9.1 Save for the second issue, the appeal has substantially failed and is accordingly Respondent. Same to bet default of agreement. J. CHASHI COURT OF APPEAL JUDGE C. K. MAKUNGtJJ COURT OF APPEAL JUDGE