Memory Mumbo and Frank Nchimunya Moyo Gwaba v Road Development Agency and James Sichela (2019/HP/0754) [2024] ZMHC 162 (14 September 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA ( Civil Jurisdiction) REPUBLIC a PRINCIPAL 2019/HP/0754 MEMORY MUMBO FRANK NCHIMUNYA MO 2 8 SEP 2023 REGISTRY. 5 1ST PLAINTIFF 2ND PLAINTIFF AND ROAD DEVELOPMENT AGENCY 1ST DEFENDANT JAMES SICHELA 2ND DEFENDANT BEFORE THE HONOURABLE MRS. JUSTICE M. C. KOMBE For the Plaintiffs : Mr. G. Lungu- Muleza Mwiimbu & Co For the 1st Defendant: Mr. M. Mulonda - In House Counsel For the .211d Defendant: Mr. S. Nyirongo - Messrs. Chilao, Nyirongo, Mwiinde Legal Practitioners. RULING Cases referred to: 1. Lusaka West Development Company Limited v. Turnkey Properties Limited (1990/92) Z. R 1 2. Re Daintrey ex parte Holt (1893) 2 QB 116 3. Chola Chama v. ZESCO Limited, (Appeal No. 215/2016). Legislation and other work referred to: 1. The Rules of the Supreme Court, 1999 Edition White Book 2. The High Court Rules, Chapter 27 of the Laws of Zambia This ruling arises from a procedural issue that was raised on 18th July, 2023 when this matter was scheduled for continued trial. Learned counsel for the 1st Defendant Mr. Mulonda objected to the production of the 2nd Plaintiff's witness statement. The basis for the objection was that paragraph 16 of the witness statement and page 26 of the Plaintiffs bundle of documents referred to privileged communication made to the Plaintiff on a 'without prejudice' basis. It was thus argued that the same could not be used in Court and prayed that they be expunged from the record. Learned counsel for the Plaintiffs Mr. G. Lungu opposed the application and argued that this Court issued Orders for Directions and parties were at liberty to apply and the 1st Defendant never exercised that right. It was also argued that there was discovery and inspection conducted by the parties and the 1st Defendant did not raise any objection to the production of the documents. Therefore, the same could not be expunged at this stage. -R2- In addition, counsel submitted that Statutory Instrument No. 58 of 2020 provided that any interlocutory applications had to be made at least fourteen (14) days before trial. No such application was made by the 1st Defendant. He therefore prayed that the objection be overruled and the documents remain on the court record and form part of the evidence. In reply, it was submitted that the application had not come late in the day and reliance was placed on Order 5 rule 21 of the High Court Rules which provided that an objection could be made at the time document was being tendered into evidence. I have carefully considered the objection that has been raised by counsel for the 1st Defendant. The issue that has been raised relates to the Without Prejudice Rule' which is a rule of law and forms part of the law of privilege. It simply means that whilst trying to reach a settlement, a party is not admitting any part of the case or conceding or waiving any arguments or rights. In short, it encourages settlement discussions without parties weakening their positions in the formal dispute. In this regard, Order 24/5/45 of the Rules of the Supreme Court reads as follows: -R3- "The without prejudice rule governs the admissibility of evidence and is founded upon public policy of encouraging litigants to settle their differences rather than litigate them to a finish. The rule applies to exclude all negotiations genuinely aimed at a settlement, whether oral or in writing from being given in evidence. The purpose is to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement." The Supreme Court in the case of Lusaka West Development Company Limited v. Turnkey Properties Limited (1) stated that: "As a general rule therefore, without prejudice communication or correspondence is inadmissible on the grounds of public policy to protect genuine negotiations between the parties with a view of reaching a settlement out of court." The case of Re Daintrey ex parte Holt (2), a case I cite for its persuasive value, indicated an instance where a document marked `without prejudice' will be inadmissible. It was stated that: "In our opinion, the rule which excludes documents marked 'without prejudice' has no application unless some person is in dispute or negotiation with another and terms are offered for the settlement of the dispute or negotiations and it seems to us that the judge must necessarily be entitled to look at the document in order -R4- to determine whether the conditions under which the rule applies exists." It is also important to note what is further provided for under Order 25/5/45 already referred to. The said Order reads as follows: "Conversely the heading 'without prejudice' does not conclusively or automatically render privilege a document so marked. If privilege is claimed but challenged, the Court has to examine the document in question and determine its nature... the rule which confers privilege on without prejudice communication is not limited to documents which constitute offers; privilege may also attach to 'without prejudice' documents written in the opening stages of negotiations... a letter stated by a party to be written without prejudice which amounts not to an offer to negotiate but merely to an assertion of that party's right or an attempt to argue that his case is well founded is not privileged." Thus the Supreme Court in the case of Chola Chama v. ZESCO Limited ( 3) stated that: "Where the contents of the 'without prejudice' evidence are not in dispute the rule will not apply." What is clear from the foregoing authorities is that 'without prejudice' documents are inadmissible only where there is a negotiation between -R5- the parties and an offer made for settlement of the dispute. In this regard, it is incumbent upon the court to examine the document in question and determine its nature. I shall therefore proceed to consider the document in issue as well as the paragraph which the 1st Defendant seeks to have expunged. This letter is at page 26 of the Plaintiffs bundle of documents and it reads as follows: 26th November, 2018 Mr. Frank Gwaba Plot No. 7406, Off Buluwe Road Woodlands LUSAKA RDAHQ/64/ 9/2 `WITHOUT PREJUDICE' LETTER OF DEMAND The above matter and your letter of 5th November, 2018 refer. We have noted the contents of your letter. As per our discussion over the matter, we write to advise that our insurance company namely Zambia State Insurance Corporation is processing the claim you submitted relating to the road traffic accident you were involved in. We shall revert to you on your claims as soon as ZSIC concludes its part of the process. Kindly acknowledge safe receipt by signing a copy of this letter. -R6- Yours faithfully, ROAD DEVELOPMENT AGENCY Chiti Kabwe (Ms). LEGAL COUNSEL What is important to understand is that this letter was a response to the letter of demand made by the 2nd Plaintiff to the 1st Defendant dated 5th November, 2018. In that letter, the 2nd Plaintiff made a demand for compensation for loss of earnings and personal injuries sustained on 4th August, 2018 in a road traffic accident allegedly occasioned by James Sichela, the 2nd Defendant who was driving a motor vehicle belonging to the Road Development Agency (RDA) and insured by ZSIC. From the defence filed by the 1st Defendant being RDA and also the agreed facts as outlined in the Scheduling Conference Brief, there is no dispute that following this demand which was also made to ZSIC, ZSIC proceeded to pay the 2nd Plaintiff the sum of K7,000.00 as full and final payment as compensation for injuries sustained as a result of the accident. The compensation was made as a result of the 2nd Plaintiff's third party claim to ZSIC. It is evident that the claim for personal injuries is the one that was referred to in the letter of demand by the 1st Defendant written on a `without prejudice' basis. However, the other claim for compensation -R7- for loss of earnings was not considered by ZSIC and the 1st Defendant informed the 2nd Plaintiff that it would revert to him on his claims once ZSIC completed its part of the process. In the view that I hold, there is nothing to suggest from this letter that there was a negotiation between the parties and an offer made for settlement of the claim for loss of earnings. I am fortified in holding this view by the letter that was written by the 1st Defendant on 6th December, 2018 which was also a response to a letter of demand made by the 2nd Plaintiff for compensation for loss of earnings. In that letter, the 2nd Plaintiff was informed that the lst Defendant was unable to consider his demand for compensation of K200,000.00 on the basis that the 2nd Defendant was at the time of the accident not driving the motor vehicle in the course of duty but was on a frolic of his own. Thus, he was advised to consider pursuing him in his individual capacity. Given the foregoing, I find that no offer was made to the 2nd Plaintiff for the settlement of the dispute and therefore the document cannot be said to have been made on a 'without prejudice' basis for privilege to attach. It is on this basis that I find that the 1st Defendant's objection is misconceived. -R8- I should also hasten to mention that this Court issued Orders for Directions on 21st May, 2020 in which the parties were ordered and directed to conduct discovery by list and inspection of documents. It was at that stage that the parties were required to raise an objection against any documents that offended the rules of evidence. If the 1st Defendant had abided by the Orders for Directions, they would have avoided this application to have the document at page 26 expunged from the record. By its action the 1st Defendant is taken to have waived its liberty to object to the production of this document and also reference being made to it in the witness statement. On this score again, I find that the objection is misconceived. In the result and for the reasons I have highlighted above, I find no merit in the objection raised and I accordingly decline to expunge paragraph 16 of the 2nd Plaintiffs witness statement and page 26 of the Plaintiffs bundle of documents. The objection is overruled. The 2nd Plaintiffs witness statement and the Plaintiffs bundle of documents containing the document at page 26 are admitted in evidence. DELIVERED AT LUSAKA THIS 14th DAY OF SEPTEMBER, 2023 HIGH COURT OF ZA611131A - -1- - I 14 SEP 2023 M. O. KOMBE. J P. O. BOX 50067. LUSAKA KE M. C. KOMBE JUDGE -R9-