Kumasonde Chambers v Zambia Development Agency (HP 2430 of 2015) [2016] ZMHC 174 (26 September 2016)

IN THE HIGH COURT FOR ZAMBIA 201S/HP/2430 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: KUMASONDE CHAMBERS PLAINTIFF AND ZAMBIA DEVEWPMENT AGENCY DEFENDANT Before Honorable Mrs. Justice M. Mapani-Kawimbe on 26th September, For the Plaintiff For the Defendant Mr. K. I. Mulenga, Messrs Kumasonde Chambers Mr. N. M. Mulikita of Messrs N. M. Mulikita and Partners JUDGMENT Case Authorities Referred To: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Lyons Brooke Bond (Z)Limited Vs Zambia Tanzania Road Services Limited (1977)Z. R. 317 William David Charlisle Wise Vs E. F. Hervey (1985) Z. R. 179 Letang Vs Cooper (1965) 1 Q. B. 232 Zambia Revenue Authority Vs Jayesh Shah (2001) Z. R. 60 Attorney General Vs Marcus Kampumba Achiume (1983) Z. R. 1 Costellow Vs Sommerset County Council (1993) 1 ALL ER 956 Attorney General Vs Roy Clarke (2008) Z. R. 38 Vol. 1 Rosemary Chibwe Vs Austine Chibwe (2001) Z. R. 1 NFCAfrica Mining Pic Vs Techro Zambia Limited SCZ Judgment NO.22 of Blair Freight International Limited Vs Credit Bank Limited SCZ Appeal No. 209 of 1997 J1 Legislation Referred To: 1. 2. High Court Act, Chapter 27 Rules of the Supreme Court 1999 Edition, (White Book) I was moved in this matter by way of notice of appeal dated 12th May, 2015. In that notice, the Plaintiff advanced a sole ground of appeal, that is, it was wholly dissatisfied with the Ruling delivered by the lower Court on 29th March, 2016. Although one ground was advanced, there appears in my view to be three fronts of contention namely: 1) That the conditional memorandum of appearance and defence entered by the Defendant on 4th January 2016, were filed out of time. That being the case, the Defendant was not entitled to file an application to dismiss the Plaintiffs action pursuant to Orders 18 and 19 of the Rules of the Supreme Court. 2) That the lower Court should have regarded the Plaintiffs prayer to refer the matter to taxation. 3) That the lower Court misdirected itself when it found that the Plaintiffs claim was improperly instituted and did not disclose a cause of action. J2 With regard to the first contention, the Plaintiff submitted that it filed writ of summons and a statement of claim on 18th December, 2015. Further, that Court process was served on the Defendant on the same day. The Plaintiff also submitted that according to the writ of summons, the Defendant was required to enter an appearance within 14 days after service of writ, including the day of service. The Plaintiff contended that the Defendant only entered a memorandum of conditional appearance, on 4th January, 2016, four days after the prescribed period endorsed on writ of summons. The Plaintiff submitted that there was no evidence before Court showing that the Defendant had applied for leave to file its memorandum of conditional appearance out of time. The Plaintiff thus argued that since leave had not been sought by the Defendant, then the lower Court should not have allowed it to file an application to dismiss the Plaintiffs action. The Plaintiff contended that by allowing the Defendant's application, the lower Court did not adhere to the rules on the requirements of pleadings. The Plaintiff relied on the cases of Lyons Brooke Bond (Z) Limited Vs Zambia Tanzania Road Services Limited, Blair Freight International Limited Vs Credit Bank J3 Limited, NFC Africa Mining Pic Vs Techro Zambia Limited, which state the law on pleadings. I have given serious consideration to the Plaintiffs contention. In my view, what I am being invited to determine is whether the memorandum of conditional appearance entered by the Defendant on 4th January, 2016 was properly before the Court. By way of spin off, I am invited to determine whether the Defendant's application to dismiss the Plaintiffs cause of action was rightfully instituted before the lower Court. Order VI Sub rule 4 of the High Court (Amendment) Rules, provides that: "4. Every writ of summons shall be endorsed with a statement of the nature of the claim made, or of the relief or remedy required and shall, subject to the other provisions of these Ru les, state a time (to be fIXed by the Registrar) within which appearance must be entered by the party sued or to be served." In addition, Order XI Sub rules 1 and 2 of the High Court (Amendment)Rules states that: (1) A defendant shall enter appearance to a writ of 1. copies summons by delivering to the proper officer sufficient of memorandum of appearance in writing dated on the day of their delivery, and containing the name of the defendant's is defending in person. advocate, or stating that to the proper shall at The defendant officer sufficient copies of the defence and counter claim if any: the defendant the same time deliver J4 Provided that before delivering the memorandum and defence, the defendant shall be at liberty to apply for further and better particulars of the statement of claim within the period specified for delivery of the memorandum and defence. these documents (2] On receipt of the proper officer shall forthwith enter the appearance as of the date of receipt of the memorandum of appearance and defence and shall seal them with the official seal showing the date on which they are sealed and shall post a copy to the defendant: Provided that no appearance shall be accepted which is received out of time. What I discern from Order VI Sub rule 4 of the High Court (Amendment)Rules, is that the Registrar is required to fIx the time within which a party sued must enter an appearance. This Sub rule in my considered view is prescriptive. That is, a party that has been served with Court process must respond to writ of summons within the time stated on the writ. I wish to add that Order VI Sub rule 4 is reinforced by Order XI, Sub rules 1 and 2. The said Sub rules require a sued party to enter an appearance within the time stipulated on a writ. There can be no deviation to the requirement in the said Sub rules except where time has been enlarged by the Court. J5 I have pelUsed the Court's record and find that the writ of summons in casu was filed on 18th December 2015, together with the statement of claim. The Court's record also shows that Court process was served on the Defendant on the same date. The Court's record further reveals that the Defendant filed a memorandum of conditional appearance on 4'" January 2016. I have noted from the Court's record that there is no evidence to show that the Defendant sought leave to enter a memorandum of conditional appearance out of time. I find that this is a serious breach of the Court's IUles by the Defendant. Because of that breach, the lower Court misdirected itself when it heard the Defendant's application to dismiss the Plaintiffs cause of action. The Defendant was not properly before Court and it did not take any steps to redress its circumstances. Therefore, it should not have been heard by the lower Court. Accordingly, I hereby set aside the lower Court's Ruling dismissing the Plaintiffs cause of action. By setting aside the lower Court's Ruling, the Plaintiffs cause of action is reinstated. I will nevertheless have to determine it on merit. J6 In its cause of action, the Plaintiffs contends that it is entitled to the immediate recovery of party to party costs. The Plaintiff submitted that since it was awarded costs in cause no. 20I5/HP/1384, its matter ought to be referred to taxation. The Plaintiff referred the Court to the cases of Rosemary Chibwe Vs Austine Chibwe and Attorney General Vs Roy Clarke. In the former case the principle of law is that the Court's conclusions must be based on facts stated on record. In the earlier cases, the principle of law is "that a party cannot rely on unpleaded matter except where evidence on the unpleaded matters has been adduced in evidence without objection from the opposing party." I have no quarrel with the principles of law cited by the Plaintiff. However, I find that they are of very little value in this matter. I willtherefore not make further reference to them. I am however, spellbound by the principle in the case of Attorney General Vs Marcus Kampumba Achiume cited by the Learned Counsel for the Plaintiffwhich states that: J7 "an unbalanced evaluation of the evidence, where only the flaws of one side but not of the other are considered, is a misdirection which no trial court should reasonably make, and entitles the appeal court to interfere." It is upon that authority that I will now embark on my point of departure in determining the issue at hand, being mindful of the arguments that have been canvassed by the Plaintiff. To start with Order 62 Sub rules 2 and 3 of the White Book provides sets out thus: "..... (2) Noparty to any proceedings shall be entitled to recover any of the costs of those proceedings from any other party to those proceedings except under an order of the Court. (3) If the Court in the exercise of its discretion sees fit to make any order as to the costs of any proceedings, the Court shall order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs." What I understand the Sub rules to mean is that costs abide the event. That is to say, party to party costs are only recoverable after a matter has concluded, except where the Court orders J8 otherwise. In other words, the Court can order a party to recover costs before the conclusion of a matter. Order 62 Sub rules 2 and 3 of the White Book are buttressed by Order XL, Sub rule 2 of the High Court Act Rules, which provides that: '~ll questions relating to the amount of costs shall, unless summarily detennined by the Court, be referred to a taxing officer, and, after notice of taxation to the parties, be ascertained by him". In my view the significance of the said Sub rule is that after a matter has concluded, and where a successful party has been awarded costs, that party can move to recover costs. In doing so, parties must as a matter of right agree on costs. It is only in the event of default of agreement that a matter can be referred to taxation. It is not in dispute that the Plaintiff was awarded costs in cause no. 2015/HP/184, which cause was struck off and later restored. It is also not in dispute that there was no order given by the Court requiring the Plaintiff to recover costs immediately in cause no. 2015/HP/184. J9 I nevertheless, find it necessary to refer to the lower Court's Ruling at page 6 which provides that: " the costs awarded to the now Plaintiff in cause 2015/HP/1384 when the matter was struck off the active list are not due to be paid forth with, as there was no order to that effect. Even in the event that there was an order that they be paid forthwith, the appropriate procedure would have been to commence taxation proceeding in the cause that they arose, and not commencing a fresh action to recover them. The plaintiff would have only been entitled to commence an action to recover the costs in fresh cause if what was sought to be recovered was advocate and client costs, after the expiration of one month after the bill was served on the client. My understanding of the lower Court's Ruling is that it did not challenge the fact that the Plaintiff was awarded costs in cause no. 2015/HPfl384 but the time of recovery. The lower Court insisted that the costs due to the Plaintiff in that cause were only recoverable at the conclusion of that matter. The lower Court also stated that the costs in cause no. 2015/HP/1384 could be sufficiently recovered therein. This I find is the position of law. )10 I also find that the lower Court was on firm ground when it decided that the Plaintiff can only recover costs after the conclusion of cause no. 2015/HP/1384. I further find that there is no need for this action as the Plaintiff can sufficiently recover party to party costs in cause no. 2015/HP/1384. Accordingly, I hold that this appeal is misconceived and has no merit. It is hereby dismissed. I make no order as to costs. Leave to appeal to granted. Dated this 26th day of September, 2016 . . ~J~I:l.{.; ............... Hon. Mrs. Justice M. Mapani-Kawimbe HIGH COURT JUDGE J1i