Edwin Mwewa Chikonde v The Attorney General (APPEAL No. 149/2023) (19 June 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 149/2023 HOLDEN AT LUSAKA (Civil Jurisdiction) EDWIN MWEWA CHIKONDE APPELLANT AND 1 9 JUN 2C?'1 THE ATTORNEY GENERAL RESPONDENT CORAM: Kondolo S.C., Majula and Banda-Bobo, JJA On 7th May, 2024 and on 19th June, 2024 For the Appellant: Ms. Mulenga Victoria Chilufya and Mr. Josia Kaluba, both of LCK Chambers For the Respondent: N / A JUDGMENT Banda-Bobo, JA delivered the Judgment of the Court. Cases referred to: 1. Wenlock v Moloney (1965) 2 All ER 871 2. Drummon-Jackson v British Medical Association (1970) 1 ALL ER 3. John Mugala and Kenneth Kabenga v The Attorney General (1988-1989) ZR 171 (S.C.) 4. Stanton and another v Callaghan (1998) 4 All ER 961 5. John Chisata v Attorney General ( 1992) S.J. 19 (S. C.) 6. Gilcon Zambia Limited v Kafue District Council and Bradford Machila (Appeal No. 10/2012 and No. 43/ 2009) 7. Ministry of Home Affairs, The Attorney General v. Lee Habasonde (2007) ZR Jl Legislation and Other Works referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia 2. The High Court Act (Cap. 27, Volume 3, Laws of Zambia) The High Court (Amendment) Rules, 2020 3. The Supreme Court Rules (White Book}, 1999 Edition 1. 0. INTRODUCTION 1.1. This is an appeal against the Order given by Honourable Justice E. Mwikisa in the High Court for Zambia on the of December 14th 2022. 2.0. BRIEF BACKGROUND 2.1. The Appellant alleges that he was stopped by Zambia Army Officers on the 11th of November 2020 around 21 :00 hours in Kalingalinga, off Kamloops Road in Lusaka. He alleges that he was informed by the said officers that, they were carrying out a routine patrol in the area, triggered by gassing incidents that were going on at the said time. He claims that the officers requested him to come out of the car, which he obliged, and that two of the officers went to search his car, while the other two took him to the back of the car where he was ordered to lie down on the road. He further alleges that he was beaten and after they finished searching the J2 car, he was told to drive off without being informed of what crime he had committed. 2.2. The Appellant reported the matter to Central Police Station. He noted that an amount of ZMW2000.00 had gone missing from his vehicle. He was advised by the police to report the matter to Woodlands Police Station and a docket was opened for assault and theft. 2.3. The Appellant alleges that following the report, the police officers in charge of the matter acted negligently due to the inaction in the manner they handled the case. Thus, he proceeded to lodge a complaint with the Police Public Complaints Commission (the Commission) which complaint was heard. 2.4. Further, that the Commission found merit in the complaint where they ordered that the police officers be disciplined. Additionally, that the Commission found that the Appellant was assaulted and had his money unlawfully taken. 2.5. The Appellant, on 1st December 2022 commenced an action by way of writ of summons and statement of claim. The Appellant in his pleadings raised and outlined the statutory duty placed on the Zambia Police Service and the professional duties that were J3 negligently carried out by the officers whose duty was amongst others, to investigate his matter. 2.6. The Appellant alleged that as a result of the breach of duty and negligence on the part of the Zambia Police Service, the Appellant has been unable to obtain redress. 2.7. In addition, the Appellant claimed that he is unlikely to obtain any remedy due to the passage of time as the Appellant could only rely on his memory to identify his assailants. The Appellant therefore sought the following remedies: a) Compensatory damages b) Damages arising out of breach of duty to be assessed by the Court; and c) Damages arising out of negligent discharge of duty. 3.0. DECISION OF THE LOWER COURT 3.1. By an Order dated 14th December 2023 the learned Judge in the Court below dismissed the Appellant's action on the basis that it did not disclose a cause of action without recourse to the parties, though the Order gave the Appellant liberty to commence a fresh action. J4 3.2. At the date of the Order, The Respondent, who was the Defendant in the Court below, had neither entered appearance nor a defence in the matter. 4. 0. THE APPEAL 4.1. The Appellant, dissatisfied with the Order dismissing his action, has now appealed to this Court on the following three grounds: 4.2. That the Court below erred in law and in fact when it dismissed the Appellant's action for want of a cause of action without hearing the parties on the issue and without providing a reasoned ruling on the issue; 4.3. That the Court below erred in law and in fact when it dismissed the action by an Order before appearance was entered and/or a defence was filed by the Defendant when the High Court Rules as amended by SI No. 58 of 2020 allow for the High Court to, at the stage of scheduling Conference, make such orders as are necessary to ensure that the issues in the matter are defined and/or that the matter is determined expeditiously; and 4.4. That the Court below erred in law when it dismissed the Appellant's action thereby denying him an opportunity to prosecute his case contrary to the tenets justice. JS 5.0. ARGUMENTS IN SUPPORT 5.1. Counsel for the Appellant filed heads of argument on the 13th of May 2023, and submitted in ground one that Order 3 Rule 2 of the High Court Rules Chapter 27 of the laws of Zambia sets out in general terms, the power of the Court to make any interlocutory order which it deems necessary for doing justice, whether at the instance of a party to an action or on its own volition. 5.2. Counsel submitted that Order 18 Rule 19 (a) of the Rules of the Supreme Court of England 1999 Edition provides the instances in which the Court may strike out or amend any pleading or endorsement on any writ in action, or anything in any pleading. 5.3. Counsel submitted that the discretionary power of the Court to strike out or amend pleadings are not boundless as explained in the explanatory note at paragraph 18/19 of the Rules of the Supreme Court. 5.4. He contended that the explanatory note clarifies that the Court may strike out a pleading which does not disclose a cause of action, and that it will not dismiss the action in its entirety but allow the Plaintiff to amend the pleadings. J6 5.5. Counsel submitted that the White Book gives guidance that, it is only in plain and obvious cases that summary processes, such as the dismissal of an action, should be resorted to. He argued that the discretion of the Court is not meant to be exercised to conduct minute and protracted studies of the Plaintiffs pleadings in order to declare them wanting. 5.6. Reference was made to the case of Wenlock v Moloney 1 wherein the trial court dismissed the action for want of a cause of action after an application was made by the defendants, pursuant to Order 18 rule 19 of the RSC, on the basis that the Plaintiffs pleadings did not disclose a cause of action. That at the time of the application, the defendants had already filed their defenses to the action. Following the application, the Court heard submissions from both parties and rendered a Judgment dismissing the case. On appeal the Court of Appeal was of the view that the matter ought to have been allowed to proceed to trial. 5.7. Further, Counsel referred to the case of Drummon-Jackson v British Medical Association2 where it was held that: "Over a long period of years, it has been firmly established by many authorities that the power to strike out a statement of claim as disclosing no reasonable cause of action is a J7 summary power which should be exercised only in plain and obvious cases. ....... The plaintiff should not be driven from the judgment seat at this very early stage unless it is quite plain that his alleged cause of action has no chance of success" 5.8. Counsel submitted that while the power to dismiss an action for want of a cause of action is well within the discretion of the Court, that discretion must be exercised in light of the demands of justice and only arrived at, in clear or plain and obvious circumstances. 5.9. Counsel submitted that in the matter at hand the Appellant filed a statement of claim detailing the chain of events leading to his seeking redress from law enforcement officers. The Appellant averred negligence and a breach of statutory duty on the part of the law enforcement officers, which has to date prevented him from obtaining relief. 5.10. Counsel submitted that the Appellant has demonstrated that a duty was owed to him, both under statute and at common law, and that, that duty was not met. He contended that the allegation of fact in the Appellant's statement of claim, if proved, would undoubtedly entitle the Appellant to a Judgment in his favour. J8 5.11. Counsel submitted that before a defence could be entered in answer to the Appellant's claims, the lower Court ordered that the action be dismissed of its own volition. He contends that the Court never mentioned exactly what led it to arrive at its decision. Further that the learned Judge neither offered an opportunity for the parties to be heard nor justified the striking out of the Appellant's case at an initial stage of the action. 5.12. Counsel argued that the issues the Appellant raised in its statement of claim do raise questions of public interest which require a reasoned determination by a Court and as such the decision to summarily dismiss the Appellant's action was not a proper exercise of the discretionary powers of the Court. That this Court should not uphold the Order dated 14th December 2022. 5.13. In ground two, Counsel submitted that the High Court Rules as amended by SI No.58 of 2020 provide for discretionary powers of the Court as regards determining questions of law and defining the issues between litigants before the matter proceeds to trial. 5.14. Counsel submitted that Order XIX of the High Court Rules is meant to ensure that there is smooth and speedy conduct of the administration of justice. Further that, the provisions therein seek to preserve the rights of the parties to an action while ensuring J9 that the matter progresses efficiently. He contended that the powers to strike out an action or defence are exercised at the scheduling conference after the filing of the defence. He argued that the High Court rules do not provide for striking out an action at inception of an action, and without offering the parties an opportunity to define the issues through the processes set out thereunder. 5.15. Counsel referred to the case of John Mugala and Kenneth Kabenga v The Attorney General3 wherein the Supreme Court held that: " .... We do not doubt that it was competent but hasten to point out that it is most undesirable for a trial Judge to volunteer such a ruling, especially without even affording the parties advance notice of what the Judge has in mind and giving them the opportunity to address him. We suggest that it is better to adhere to the practice of making a ruling only when the defence makes a submission and even then, the judge should be slow to make a decision on the evidence before he has heard it all." 5.16. Counsel submitted that although the High Court has power to dismiss an action for want of a cause of action, the current High no Court Rules require that particular steps be followed first, where the Court is of the view that there are issues that need to be specified or identified, before striking out a matter. 5.17. Counsel submitted that the lower Court overlooked the provisions of Order XIX Rule 3 of the HCR as amended and volunteered a decision on whether a cause of action was disclosed before the Defendant could file its defence. 5.18. He argued that the lower Court failed to accord the parties an opportunity to make submissions before it arrived at its decision. His contention was that the Court ought to have used its discretion judiciously, and that dismissing the action in its entirety at this stage was not within the Court's discretion. 5.19. Under ground three, Counsel submitted that it was the duty of the Court to ensure that there was a balance of all the interests of the parties before it and ensure that parties are not unduly burdened in seeking justice. 5.20. Counsel referred to the case of Stanton and another v Callaghan4 to emphasize the principle that, it is the Court's duty to ensure that each of the parties before it are accorded smooth administration of justice. Jll 5.21. Counsel referred to the case of John Chisata v Attorney General5 to buttress the principle that cases must be allowed to proceed to trial so that issues may properly be resolved. 5.22. Further, Counsel referred to the case of Gilcon Zambia Limited v Kafue District Council and Bradford Machila6 where the Supreme Could held that: ". .... the order to dismiss the whole action without calling upon counsel to argue the matter was irregular and should not have been made." 5.23. Counsel submitted that the Appellant's action has pertinent issues of public interest regarding the duty of Zambia police service to investigate crimes within their statutory mandate. He further argued that this appeal has reasonable prospects of success as it raises issues of public interest, which require clarification of the law. He contended that in dismissing the Appellant's action on the basis of a want of cause of action, the lower Court denied the Appellant an opportunity to obtain redress. 5.24. Counsel submitted that the Order dismissing the Appellant's action was an improper exercise of the discretion granted to the High Court and contrary to the law as set out in the High Court Rules and the White Book. J12 5.25. He prayed that the Order issued on 14th December 2022, be set aside and the matter be sent back to the High Court to be determined by a different Judge and that this Court orders that each party herein bears its own costs. 7.0 RESPONDENT'S HEADS OF ARGUMENT 7 .1 The respondent did not file any heads of argument as none graced the record of appeal. 8.0 HEARING, ANALYSIS AND DECISION 8.1 At the hearing on 7th May, 2024 only counsel for the appellant was in attendance. She confirmed that they had not been served any heads of argument by the respondent. In proceeding with the appeal, Ms. Chilufya placed reliance on the heads of argument filed on 18 th May, 2023, and the record of appeal of even date. 8.2 We have considered the appeal together with the arguments by the Appellant and the authorities cited, including the Order appealed against. 9.2 In our view, the main issue for determination is whether the lower Court exercised its discretion properly when it dismissed the Appellant's action for lack of a cause of action. We hold the J13 view that this issue will resolve the issues raised in the other grounds of appeal. We are also of the view that the three grounds of appeal can be argued together as they are all interlinked, and we will proceed in that manner. The Appellant's argument is that the Order dismissing the Appellant's action was an improper exercise of the discretion granted to the High Court Judge and was contrary to the law as set out in the High Court Rules and the White Book. 9.3 As a starting point, we draw attention to Article 6 of the European Convention on Human Rights (ECHR or the Convention) which guarantees the right to a fair and public hearing 1n both criminal and civil cases. This right encompasses, prior to the establishment of proceedings, the right of access to court and, as a result, the right of the parties to have a reasoned judgment. This is irrespective of whether the decision is "right" or "wrong". Deficiencies in the court's reasoning can affect the fairness of the whole matter. 9 .4 In our jurisdiction Order XIX Rule 3 of the HCR as amended by SI No. 58 of 2020 provides for pre-trial directions and J14 conferences. It is to the effect that the parties shall prepare, no less than seven days before the scheduling conference, a scheduling conference brief and exchange briefs, which shall include: a. a concise summary of the facts, including the agreed facts and admissions; b. a concise summary of the issues and the law to be relied on by each party, including the rights and interests of the party; c. a witness statement, which shall contain all the facts relevant to the claim, as the case may be, and make reference to the documents relied upon in the bundle of documents; and d. expert reports, if any, and the relevant portions of documents relied on by the parties subject to the applicable rules of the Supreme Court Practice, 1999 edition. There is nowhere on the record to show that this process was followed prior to the matter being dismissed. 9. 5 It is not in dispute that the Court has discretionary power to strike out pleadings as per Order 18 rule 19 of the White JlS Book. The Order stipulates the grounds upon which a Court may strike out the deficient or offending part of a pleading. It provides as follows: - "19. - (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that: - It discloses no reasonable cause of action or defence, as the case may be; or it is scandalous, frivolous or vexatious; or it may prejudice, embarrass or de lay the fair trial of the action; or it is otherwise an abuse of the process of the Court and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case mayb e ... II 9.6 In the case of Ministry of Home Affairs, The Attorney General v. Lee Habasonde7 the Supreme Court guided on the tenets of judgment writing when it stated that:- "Every judgment must reveal a review of the evidence, where applicable and summary of the arguments and submissions if made, findings of facts, the reasoning J16 of the court on the facts, and the application of the law and authorities, if any, to the facts." 9. 7 The Order by the lower court appears at page 8 of the record of appeal, and it states: "Order This matter does not disclose a cause of action and I accordingly dismiss it. The plaintiff is at liberty to commence a fresh action if need be." 9. 8 From the order of the court, it is apparent that the Judge did not take into account the guidance on Judgment Writing, even if what was issued was merely an order and not a judgment. Even in the order, the learned Judge ought to have revealed her mind, and ought to have given reasons for striking out the process. This is why the Appellant argued that the Court never mentioned exactly what led it to arrive at its decision. 9. 9 We agree with the appellant, after considering the order, that the learned Judge neither offered an opportunity for the parties to be heard nor did she justify striking out the Appellant's case at that stage of the action. It was not enough to merely state that no cause of action was disclosed. She ought to have stated why she was of J17 that view. Further, and as guided in the Gilcon Zambia Limited v. Kafue District Counci16 case, we are of the view that the order to dismiss the whole action without calling counsel to argue the matter was irregular and should not have been made. 9 .10 We acknowledge that striking out a cause of action is well within the discretion of the Court as per Order 18 rule 19 of the White Book. However, it is also trite that, that discretion must be exercised with a view to enhancing the demands of justice and should only be arrived at, in clear or plain and obvious circumstances. In our view, the learned Judge in the Court below, having failed to render a Ruling providing reasons why she determined that the matter before her had no cause of action, meant that she failed to exercise her discretion judiciously. 9.11 We agree with the Appellant that the powers to strike out an action or defence are exercised at the scheduling conference, after the filing of the defence. The High Court rules do not allow striking out an action at inception of an action without offering the parties an opportunity to define the issues through the processes as set out in Order XIX Rule 3 of the HCR as amended by SI No. 58 of 2020. J18 9.12 We opine that the Order dismissing the Appellant's action was an improper exercise of the discretion granted to the High Court, and was contrary to the law as set out in High Court Rules and the White Book, which rules require that particular steps ought to be followed first before striking out a matter, which was not done herein. 9. 13 In our view, the reasons offered in a decision or ruling are especially important to the litigants. They are required to follow the Court's ruling and must understand how the court handled their case and arrived at its conclusion. This is especially so, where a Court exercises its discretion to dismiss a matter without hearing the parties as happened herein. This will also aid the losing party if they should want to appeal. 9. 14 In our society, it is critica l that the parties to an action believe that justice has been served, or that an honest, thoughtful, and conscientious effort has been made to do so in their case. 9 .15 The learned Judge having failed to offer reasons for arriving at her decision, that there was no cause of action, failed to demonstrate to the appellant why the matter before her did not have a cause of action. She ought to have rendered a Ruling J19 disclosing the reasons that informed her decision to dismiss the matter as she did. Based on the above, we find that all grounds of appeal are meritorious. 10 CONCLUSION 10.3 For the reasons we have stated above, the appeal is upheld, and the Order granted on 14th December 2022 is set aside. The matter is sent back to the High Court to be heard before a different Judge. 10.4 Each party should bear their own costs. M. M. KONDOLO S.C. COURT OF APPEAL JUDGE ····-~ ·-·············· B. M. AJULA A. M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J20