Morgan Naik v Simon David Burgess and Ors (CAZ/08/574/2024) [2025] ZMCA 62 (24 April 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/08/574/2024 BETWEEN: MORGAN NAIK AND APPLICANT SIMON DAVID BURGESS RAJENDRAKMAR SOMBHAI PATEL TREVOR ASHLEY WATSON THOMAS DAVID THOMPSON SHAILENDRA RAGHA AMADEUS INTERNATIONAL LIMITED 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4m RESPONDENT 5TH RESPONDENT 6TH RESPONDENT Before the Hon. Lady Justice F. M. Chishimba in Chambers. For the Applicant: In Person ✓ For the Respondent: Mr. E. Mfuni & Ms. M. Msundwe of Messrs. Simeza Sangwa & Associates RULING CASES REFERRED TO: 1. Finance Bank Zambia Limited, Rajan Mahtani v Simataa Simataa111 SCZ Judgment No. 21 of 2017 2. Attorney General v UWP Consulting Zambia Limited (Appeal 21 of 2016) (2019) ZMSC 6 3. Dr. David Nama and Another v Republic of Romania and Othersl3 l CAZ/08/374/2021 4. Chick Masters Limited and Another v Investrust Bank Plc SCZ Appeal No. 74 of 2014 LEGISLATION REFERRED TO: R2 1. The Court of Appeal Rules Statutory Instrument No. 65 of 2016 2. The Rules of the Supreme Court of Zambia 1.0 INTRODUCTION 1.1 This is a ruling in respect of the applicant's notice of intention to raise preliminary issues on points of law. The application is made pursuant to Order 8 of the Court or Appeal Rules S. I No 65 of 2016 as read together with Order 14A and Order 33 Rule 3 of the White Book (1965) 1999 Edition (RSC). 1.2 The questions for determination raised are: i) Whether or not, a binding and enforceable settlement agreement or contract had been concluded on 14th October 2022 as regards full and final settlement of all criminal and civil matters, which included the taxation of costs proceedings herein, notwithstanding that said settlement agreement or contract was essentially between the applicant and the 2°d and 6 th respondents; and ii) Whether or not by virtue of the aforesaid concluded binding and enforceable settlement agreement or contract of 14th October 2022, the entire taxation of costs R3 proceedings herein are, fundamentally, in breach ofit, and as such, a nullity, notwithstanding that the respondents filed their amended bill of costs on 16th May 2024 in pursuance of the Ruling dated 3 rd May 2024 by the full bench of the Court of Appeal and which bills of costs were originally pursuant to the Judgment dated 29th October 2021 and the Ruling dated 11th April 2022 respectively. 2.0 AFFIDAVIT IN SUPPORT 2.1 The affidavit in support was deposed by the applicant. The deponent stated that on 11th May 2022, a single Judge of this Court ordered the stay of execution of taxation proceedings pending the hearing and determination of the Notice of Motion by the full bench. The full bench delivered its ruling on 3 rd May 2024. On 16th May 2024 , the respondents filed their bill of costs pursuant to a Judgment dated 29th October 2021 and a Ruling dated 11th April 2022. 2.2 In September 2022, the 2nd respondent called for a meeting where it was mutually agreed that an amicable, full and final settlement of all civil and criminal matters involving himself and the 2 nd and 6 th respondents in the Supreme Court, Court of R4 Appeal, High Court and Subordinate Court of Zambia. Following the meeting, his advocates informed the 2nd respondent's advocates through a letter dated 13th October 2022 of his acceptance of USD 1,300,000.00, exclusive of any taxes and bank charges, from the 2 nd respondent. 2 .3 According to the deponent, the 2nd respondent formally acknowledged the settlement offer of USD 1,300,000.00 as evidenced by a copy of the letter dated 13th October 2024 exhibited as "MN 1". In pursuit of an amicable agreement, the applicant's lawyers sent further communication on 8 t h November 2022, restating the acceptance of the settlement offer. Further, it was mutually agreed that the sum of USD 1,300,000.00 was also to cover the amended bill of costs filed on 16t h May 2024 . 2.4 On 21 st November 2024, the 2 nd and 6 th respondents withdrew from the agreement finalised on 14th October 2022, citing a lack of perceived benefit in pursuing an amicable settlement and opting instead to leave the matter for the Court's determination. This was evidenced by a letter exhibited as "MN3'•. 3.0 AFFIDAVIT IN OPPOSITION RS 3 .1 The affidavit in opposition was sworn by Zikhalo Mubanga Sam pa, the advocate seized with conduct of the matter on behalf of the respondents. He deposed that the Court below on 27th September 2019 dismissed the applicant's challenge on the grounds of being statute-barred. A copy of the ruling has been exhibited as "ZMSl,,. The applicant, being dissatisfied with the decision of the Court below, appealed against the said decision. On 29th October 2021, this Court dismissed the appeal. 3.2 The deponent stated that the purported settlement agreement of October 2022 is now a subject of litigation in the Court below, commenced by the applicant. Copies of the writ of summons, statement of claim and defence filed in the Court below have been exhibited as "ZMS2". That the judgment of this Court concluded the proceedings in this matter, and there are the ref ore no pending proceedings in this Court. 4.0 AFFIDAVIT IN REPLY 4.1 The deponent stated that notwithstanding the ruling of the Court dated 3rd May 2024, the taxation proceedings are still pending. 5.0 APPLICANT'S SKELETON ARGUMENTS R6 5.1 The applicant contends that the negotiations for an amicable settlement between the parties were concluded, thereby resulting in the formation of a binding agreement. The letters dated 7 th and 13th October 2022 established a valid and enforceable contract between the parties. It was argued that the respondent's advocates had ostensible authority to enter the agreement on behalf of the 2nd respondent. Therefore, by the respondent's advocates receiving the letter, a legally binding agreement was constituted, notwithstanding that the letter was marked "without prejudice". 5.2 Consequently, the respondent's advocate's letter dated 21 st November 2022, which rejected the proposal, is null and void. That the agreement could not be rescinded five weeks after it was entered. 5.3 The applicant argued that the policy of the law is to uphold settlement agreements between parties. That the terms of the settlement agreement should not be ignored or breached because a party regrets the agreement reached. Allowing this would be unfair and undermine the sanctity of agreements. R7 Reliance was placed on Finance Bank Zambia Limited, Rajan Mahtani v Simataa Simataa1 1 1 SCZ Judgment No. 21 of 2017 to buttress the argument that terms of settlement agreements must be upheld and enforced. 6.0 AT THE HEARING 6 . 1 The applicant relied on the affidavit and arguments in support. Counsel for the respondents argued that the applicant's motion was an abuse of court process. The applicant commenced a fresh action in the Court below seeking, amongst other reliefs, damages for breach of contract in cause number 2024/HPC/0426. The same issues have been raised again in Appeal No. 158 of 2022 and CAZ/08/203/2018, seeking the same reliefs. The multiple suits undertaken by the applicant over the same issue amount to forum shopping. 6.2 It was further argued that Order 14A and Order 33 RSC are not applicable in the circumstances because there are no questions of law suitable for determination. In addition, that Order 33 RSC is inapplicable to an appellate court because it envisions a trial. RB 6.3 Lastly, counsel argued that the Court, having delivered its judgment on 29th October 2021, is functus officio. The case of AG v UWP Consulting Zambia Limitedl2 ) was relied on to argue that once an order of the Court has been made, it becomes functus officio. Counsel urged the Court to dismiss the application fo r being incompetent. 7.0 DECISION 7 . 1 I have considered the application raising preliminary issues stated in paragraph 1.2 of the ruling. The issue raised is whether the taxation proceedings are a nullity. The applicant contends that the parties entered into a valid agreement to resolve the matter amicably, entitling the applicant to the sum ofUSD 1,300,000.00. Therefore, the respondent, by proceeding to tax the costs is in breach of the said agreement. 7.2 Firstly, I note that the application has been made pursuant to Order 8 CAR and Order 14A RSC. Order 8 relates to the amendment of process, and Order 33 relectes the trial of any question or issue arising to be tried at or after the trial of the cause of matter and is equally inapplicable. Order 14A of RSC R9 provides for determination of questions of law or construction at any stage of the proceedings etc. 7 .3 The issue to be determined is whether the taxation proceedings before the Court are a nullity. The applicant argues that the parties entered a valid contract to settle the matter ex-curia. The letters dated 7 th and 13th October 2022 according to the applicant indicated the applicant's acceptance of the 2nd respondent's offer of USD 1,300,000.00. That the respondent's advocate received the letter dated 13th October 2022 on 14th October 2022, which resulted in the constitution of a binding and enforceable agreement. 7 .4 I have perused the letter, and I note that there is no provision stating that acknowledgement of receipt of the letter would amount to acceptance of the terms of the letter, thereby resulting in a binding agreement between the parties. The mere acknowledgement of the letter by the respondent's advocates cannot amount to acceptance of the terms, thereby creating contractual obligations to bind the 2nd respondent. I find no merit in the assertions of a concluded binding and enforceable agreement between the parties which included the taxation RlO proceedings. 7.5 Before I conclude, the respondent contended that the conduct of the applicant by raising the same issues herein raised in other actions under cause numbers 2024/HPC/0426, CAZ/08/203/2018 and Appeal Number 158 of 2022 amounts to abuse of court process. The respondents exhibited copies of the process in cause number 2024/HPC/0426, where the applicant is seeking payment of USD 1,300,000.00. In casu, the applicant was questioning the validity of the taxation proceedings in light of the purported agreement. I note that the two actions relate to the purported agreement and the sum of USO 1,300,000.00. 7. 6 In Chick Masters Limited and Another v lnvestrust Bank Plc141, the Supreme Court stated that abuse of court process can arise where the claim is vexatious or ill-founded, such as where proceedings are started to pursue a claim which has already been dealt with by way of full and final settlement between the parties. In my view the applicant is a vexations litigant. In casu, his application is intended to harass or annoy his opponents. I Rll say so because he has instituted a claim in the Court below arising from the alleged settlement agreement, seeking validation and enforcement. Before the matter is determined the applicant raised preliminary issues as to whether or not a binding and enforceable agreement has been concluded. An issue subject of determination by the Court below. Hence my view earlier that the Applicant is a vexatious litigant. 8 .0 CONCLUSION 8.1 Reverting to the questions raised for determination, I hold that the proceedings herein i .e . the Taxation of Costs proceedings are not a nullity. I accordingly dismiss the preliminary issues raised . Dated the 24th day of February 2025 Hon. Mrs. Justice F. M. Chishimba COURT OF APPEAL JUDGE