ZCCM Investments Holding Plc v Vedanta Resources Holding Limited and Anor (SCZ/08/13/2021) (18 January 2022) – ZambiaLII

.• ·".,~,- . • IN THE SUPREME COURT OF ZAMBIA SCZ/08/13/2021 HOLDEN AT LUSAKA APPELLANT AND ' VEDANTA RESOURCES HOLDING LIMITED !ST RESPONDENT KONKOLA COPPER MINES PLC 2ND RESPONDENT Coram: Malila CJ, Wood and Kajimanga JJS ' on 2nd November 2021 and 18th January 2022 For the Appellant: Mr. A. J. Shonga SC, Mr. 8. Lungu ,SC, and Mr. N. Ng'andu of Messrs Shamwana & Company; and Mr. L. Mbalashi In-House Legal Counsel (ZCCM). For the 1st Respondent: Mr. M. Mundashi SC, Mr. D. Chakoleka and Mr. M. Chilufya of Mulenga Mundashi Legal Practitioners; Mr. 8. Chisenga of Corpus Legal Practitioners, and Mr. L. Mwamba of Simeza Sangwa & Associates, For the 2nd Respondent: Mr. B. C. Mutale SC with Ms. Mukuka of Messrs Ellis & Company; Mr. A. Musukwa of Mr. Andrew Musukwa & Company; Mr. J. Zimba of Makebi Zulu Advocates, and Mr. Chipoya In-House Legal Counsel (KCM) RULING R2 Malila CJ, delivered the Judgment of the Court Cases referred to: 1. Rosemary Nyangu v. Pamodzi Hotel Plc (SCZ/ 8/8/2021) 2. BP(Z) Limited v. Competition and Consumer Protection Commission (SCZ Judgment No. 21 of2011) 3. Weldon's case 4. Edward Mweshi Chileshe v. ZCCM (SCZ Judgment No. 10 of 1996) Legislation referred to: 1. Supreme Court Rules 1965 (White Book (1999 Edition) 2. Competition and Fair Trading Act, Chapter 417 Vol. 23 of the Laws of Zambia When the court last convened to hear this matter on 2nd November 2021, Mr. Mundashi SC, learned counsel for the first respondent informed us that there was filed on behalf of the second respondent, a motion to vary an order of a single judge of this court which granted the applicant leave to appeal. The learned State Counsel explained that while awaiting the hearing of that motion filed on behalf of the first respondent, he came across a judgment of this court in the case involving Rosemary Nyangu v. Pamodzi Hotell11. We decided in that case that a motion before this court bears different characteristics from an appeal and should be presented as such. In particular, we held that a motion that is styled R3 as if it were an appeal fails to conform with its legal prescription for a motion and is thus liable to suffer dismissal. State Counsel Mundashi informed us that out of abundance of caution, and that although the motion did make reference to the correct statutory provisions relating to the filing of motions, he was making the application to amend the motion itself as it was couched in the language of an appeal from a decision of a single judge to the full court. Motivated by our clarification in the Nyangul11 case, State Counsel decided to give notice to the other parties on the 26th October 2021, that at the hearing of the motion, the second respondent intended to amend the motion so as to make it compliant with the requirements of a motion as we explained them in the Nyangu111 case. There was an affidavit filed in support of that application along with skeleton arguments whose contents we have duly noted. State Counsel Mundashi stressed that the application did not stand to prejudice the appellant in any way. On behalf of the appellant, State Counsel Shonga in response indicated that although he would ordinarily not oppose such an R4 application, an affidavit in opposition and skeleton arguments in opposition were filed in respect of the respondent's application. State Counsel acknowledged that this court has the power and discretion to order amendment and that the 1st respondent was properly before the court on its application to amend, yet the narrow issue upon which the amendment was resisted was whether it was appropriate for the first respondent to, in the words of State Counsel, "receive grace" from the court when its initial application was subject to a limitation of time. Mr. Shonga SC submitted that a reading of rule 48(4) of the Supreme Court Rules, alongside rule 48(1), suggests to him that there was a 14-day window within which a motion raising issue with a decision of a single judge ought to be filed. The first respondent complied with that time prescription when it filed its motion · on the last day. However, if the amendment that is now being sought is granted, it means in effect that the first respondent will have filed a totally different motion outside the 14 days prescribed by the law. If the court allows the amendment it will, in essence, be allowing the first respondent to circumvent the limitation of 14 days. He referred us RS to our judgment in BP(Z) Limited v. Competition and Consumer Protection Commission12l as authority. State Counsel contended that although Order 20 rule 5 of the White Book may allow an amendment which is made to court to pass, notwithstanding that there is a time frame for filing it, this is not an appropriate instance to allow such an application. He also submitted that allowing the application will prejudice the appellant because its right to rely on the limitation period as set out in rule 48(4) and (1) of the Rules of the Supreme Court will cease to be available to the appellant because an amendment takes effect from the date when it is first filed. State Counsel Shonga prayed that we dismiss the application to amend. In response to the objection, State Counsel Mundashi contended that the objection to the application is premised on the Weldon13l case which was referred to in Edward Mweshi Chileshe v. ZCCMl4l_ Those decisions were, however, inapplicable to the present circumstances as they referred to the Statute of Limitations and its effect on commencement of proceedings. In the present case the application is procedural and governed by rules and the Statute of Limitations R6 has no application. Mr. Mundashi SC added that the appellant in fact filed its objection to the motion on the premises that the motion was properly taken out. Mr. Chisenga, co-counsel for the first respondent submitted that the reference to the BP(Z) Limited v. Competition and Consumer Protection Commissionl2l case was unhelpful for the appellant in regard to the amendment motion because that case is distinguishable as the issue there was whether or not an appeal would be filed in the High Court outside the statutory period of 30 days as prescribed in the old Competition and Fair Trading Act. In the present case, the 14 day rule is embedded, not in substantive legislation, but in subsidiary legislation. Mr. Chisenga also submitted that the appellant had misunderstood the import of rule 48(1) and 48(4) of the Supreme Court Rules - as the 14 days referred to in rule 48(1) applies to a decision of a single judge. Mr. Mwamba, co-counsel for the first respondent, reacted to one issue. He submitted that the appellant's argument regarding limitation curtails the power of the court to amend proceedings at R7 any stage. Subscribing to the argument by the appellant will quite inappropriately curtail the court's power to amend. Mr. Chilufya, co-counsel for the first respondent also stressed one point, namely, that the argument on limitation of time is tied to the claim that the proposed amendment introduces new allegations. A perusal of the grounds of the proposed notice of motion reveals that the motion introduces nothing new as it raises in the main, the question whether the threshold for the grant of leave as set out in section 13(3) of the Court of Appeal Act is satisfied. There are, according to counsel, no new allegations. The objection is thus, in his view, unfounded. Mr. Musukwa, for the second respondent, submitted that he supported the position taken by the appellant as in his view the notice of motion filed by the first respondent appears in his words "to have the same skin but the carcass is different." We have taken full note of the rival arguments that have been ably ventilated by the learned counsel for the parties. While many interesting, though nuanced, points are raised in the argument, the crux of the issue at hand is simply whether the motion before us R8 satisfies the requirements for a motion as prescribed in the rules, and if not, whether it is appropriate at this stage to order an amendment. In Rosemary Nyangu v. Pamodzi Hotel Plcl1l, we ruled on a motion before us, that a motion to this court against a decision of a single judge comes to this court by way of a renewed application rather than as an appeal and that a motion, as was the case there, couched in the language of an appeal was liable to be dismissed. As Mr. Mundashi SC submitted, it was the realization of the mistake made by the first respondent in its motion that prompted the application to amend. The appellant and the second respondent had not indicated any objection to that motion. The policy of the law on amendment of proceedings 1s that amendments should be freely allowed if they are made without injustice or prejudice to the other party. To put it plainly, our adjectival law leans heavily in favour of allowing amendments to pleadings or proceedings whenever these are sought. As Bowen W stated in Cropper v. Smithl5>: R9 Now, I think it is a well-established principle that the object of courts is to decide the rights of the parties and not to punish them for the mistakes which they make in the conduct of their cases... I know of no kind of error or mistake which, if not fraudulent, the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matter in controversy and I do not regard such amendment as a matter of favour or grace.... It seems to me that as soon as it appears that the way a party has framed his case will not lead to a decision of the real matter in controversy, it is as such a matter of right on his part to have it corrected if it can be done without injustice. It seems to us, therefore, that generally speaking a court facing an application to amend has a duty to ensure that everything is done to facilitate the hearing of an action and wherever possible to allow the correction of an unintentional blunder if that will expedite the hearing of the cause. The court should, 1n appropriate circumstances, award costs against the delinquent party rather than decline the application to amend. However, although the pendulum tilts 1n favour of granting amendments, courts are entitled to refuse application for amendment where the attitude of the party applying is inappropriate, for example, RlO where the application is made malafides with a view to delaying the proceedings, or where the amendment does not help properly situate, define, or project the real issue in controversy, or where the time or stage at which the application is made is totally unseemly - delayed application being frowned upon, and finally where it flies in the teeth of the justice of the case to allow the amendment. Our view is that the first respondent's advocates took action at the earliest opportunity to amend the motion. We are unable to discern any malafides either. What they did not do, however, was to stay the decision of the single judge so that the appellant's did not proceed further with the appeal process based on the leave that was being impugned. Although indeed our decision on the motion to amend should have been given at the time of, or soon after the hearing of the application, preparation at huge cost, of the record of appeal on the basis of the leave given by the single judge was not arrested by way of a stay. The record of appeal is set out in nine volumes containing a total of 4082 folios. ..... (. Rll In this sense we see an injustice or prejudice being occasioned to the appellant if the amendment is granted at this late stage. It is on this basis that we decline the first respondent's application to amend and direct that the appeal be heard accordingly. As we have earlier on observed, there is no application filed to impugn the propriety of the motion. CHIEF JUSTICE ········~~~;····· SUPREME COURT JUDGE SUPREME COURT JUDGE