Bruno Mubanga and Ors v Lia Mpongo and Ors (CAZ APP/213/2021) (19 March 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA CAZ APP/213/2021 HOLDEN AT LUSAKA (Civil Jurisdiction I BETWEEN: BRUNO MUBANGA JL REulS~ 1 ST APPELLANT 5p,."'1'· MARRIEN MULENGA MUBANGA 0067 · LU 2ND APPELLANT CHRISPIN PHIRI + 3 UNKNOWN OTHERS 3RD APPELLANT IN OCCUPATION OF PLOT NO. F842/Y/2081 PRESIDENTIAL AREA AND LIA MPONGO (Suing as beneficial owner 1 RESPONDENT ST of plot No. F842 Presidential Area Ndeke Kitwe) KITWE CITY COUNCIL 2ND RESPONDENT THE ATTORNEY GENERAL 3RD RESPONDENT Coram: Mchenga DJP, Banda-Bobo, Sharpe-Phiri, JJA On: 20th September 2023 and 19th March 2024 For the Appellants: M. Nkhoma, Messrs Robert and Partners For the 1st Respondent: K. Botha with S.M. Kalikeka, William Nyirenda & Company For the 2nd Respondent: J .N.M. Luwawa with S. Lubinda, Kitwe City Council J2 For the 3rd Respondent: S.K. Mofya , Assistant Senior State Advocate, Attorney Generals Chambers JU D GM ENT Mchenga DJP, delivered the judgment of the Court Cases referred to: 1 . Zambia Seed Company Limited v . West Co- op Haulage Limited and Western Province Co-operative Union SCZ/8/114/2013 2 . Zambia Consolidated Copper Mine v . Chil eshe (2002) Z.R. 86 3 . Western Province Co-operative Union, Zambia Textiles Limited (in Liquidation) v . Progress Kalemba and 29 Others SCZ/8/233/2014 Legislation referred to: 1 . The Rules of the Supreme Court of England (White Book) 1999 Edition 2 . The High Court Rules Chapter 27 of the Laws of Zambia Other works referred to: l . The Halsbury' s Laws of England 3rd Edition Volume 30 (London) Lexis Nexis INTRODUCTION This appeal is against the ruling of the High Court c11 (C . Chanda, J . ) , dated 9th April 2021, in which the 1st , J3 2~ and 3~ appellants' application to amend their defence was dismissed. BACKGROUND On 14th May 2020, by writ of summons, the 1st respondent (21 commenced proceedings against the appel lants seeking the following reliefs : 1. A declaration order that plot No . F842/Y/2081 Ki twe belongs to Lia Mpongo as per the certificate of Title No. 1004077 issued by Ministry of Lands; 2. An order for damages for trespass, invasion, subdividing of the said plot; 3 . An order for interim injunction restraining the defendants herein from occupying, constructing on the said plot or subdividing and subletting the said piece of land being plot No. F842/Y/2081 Kitwe and further from interfering, trespassing on the said piece of land and or interfering with the quiet occupation and possession of the said plot by the plaintiffs herein either by themselves, their agents , servants and or any other persons unknown; 4. An order for the costs and interest on the amount found due; and J4 5. Any other relief the court may deem fit. On 22nd May 2020, the appellants entered appearance; C3J they also filed the~r defences and a counter claim. The 2nd and 3rd respondents were joined to the case at C4J the instance of the appellants . The 2nd respondent entered appearance and filed their csi defence on 15th September 2020 . The trial commenced on 22nd February 2 021 , and the 1 st C6J respondent and her witness gave evidence and she closed her case . On 2 6th February 2 021, the appellants launched the c1i application which is now the subject of this appeal . The application was for leave to amend their de fence cai pursuant to Order 20 Rule 8 of The Rules Supreme Court (RSC) . In the affidavit in support of the application, it was C9J deposed that the purpose of the application was for them to place the issues in their defence into perspective . That would ensure that the issues in dispute were fully resolved. JS In addition, it was submitted that the amendment was c101 sought to respond to specific cl aims in the statement of claim. The 1 st respondent opposed the application . Her c111 objection was anchored on Order 20 Rule 11 of the RSC. In addition, she contended that allowing the c121 application would prejudice her because it would then compel her to re- open her case and give further evidence . It was also pointed out that since the action was c131 filed in May 2020, the appellants had sufficient time prior to May 2021, to make the subject application . The 3rd and 4 th respondents equally opposed the c141 application. They were of the view that this was not a fit and proper case in which the trial court could exercise its discretion in favour of the appellants . In reply, it was submitted on behalf of the appellants c1s1 that it was important that they are all owed to amend their defence because the issues they sought to include were critical to the case . J6 DECISION OF THE TRIAL COURT The trial Judge opined that the main issue for his c161 determination was whether the prejudicial effect associated with the granting of leave to amend at that stage of the proceedings, outweighed the justice it sought to attain . He concl uded that allowing the application would c111 place the 1st respondent in a position where she would have to re- open her case and give fresh evidence because the amendment would introduce a new cause of action . The trial Judge was also of the view that the proposed c101 amendments were not necessary because the issues in controversy were already clearly set out . The appellants would not suffer any prejudice if the application was not allowed as the proposed amendments had no bearing on their counterclaim. He concluded that this was not a proper case in which c191 he could exercise his discretion to allow late amendments, particularly that the appellants did not J7 give any reasons why the amendments were not sought earlier. GROUNDS OF APPEAL The appellants, dissatisfied with the decision of the c201 trial Judge have appealed to this court and advanced three grounds of appeal . The grounds of appeal are couched as follows : c211 1.The court below erred in law and fact in not giving credence to the fact that under Order 20 Rule 8 of the Rules of the Supreme Court, amendments can be made at any stage of the proceedings. 2.The court below erred in law and fact in arriving at a decision that even without the proposed amendments the court was in a place to decide on real issues in controversy on, inter alia, the reasoning that the proposed amendments were being sought to be made in the defence and as such had no bearing on the and appellants' counterclaim totally ignoring the fact that the 1st , 2nd and 3rd appellants' prayer for cancellation of JS the plaintiff's certificate of title was to be ground in the proposed amendments . 3 . The court below erred in law and fact in declining to grant the 1st 2nd and 3rd appellants' application , to amend defence and coun terclaim on the ground that the application was made after the 1st respondent had testified and laid out her case while acknowledging that the 1st respondent had not been cross-examined. ARGUMENTS IN SUPPORT OF THE GROUNDS OF APPEAL In support of the 1 st and 2nd grounds of appeal, the c221 appellants submitted that it was important for them to amend their defence and counterclaim, so that they could include particulars of the fraud they had pleaded. Such an amendment would assist the court to resolve c231 the issues in dispute because even though they had pleaded fraud, they had not provided the particulars of the fraud . On the basis of Order 18 Rule 8 sub rule 8 of the c241 RSC, Order 20 Rule 8 of the RSC , Order XVIII of the High J9 Court Rules and the case of Zambia Seed Company Limited v. West Co-op Haulage Limited &. Western Province Co operative Union1 , it was submitted the defence could still be amended even though the 1 st respondent had already testified. This is because an amendment can be effected at any stage of the proceedings . Rel yi ng on the case of Zambia Consolidated Copper c2s1 Mines Limited v. Joseph David Chileshe2 it was , submitted that since the amendment was not introducing a new defence, it was difficult to appreciate the prejudice which could have been suffered by other litigants if the amendments had been allowed . As regards the 3rd ground of appeal, it was submitted [26J that it was erroneous for the trial Judge to hold that it was not necessary when the appellant was seeking to introduce the particulars of the fraud that he had pleaded. Halsbury' s Laws of England, 3rd Edition Volume 3 [211 paragraph 51 was referred to in aid of the proposition JlO that once fraud is plead, the particulars of the fraud must be set out . They contended that their application for an c2s1 amendment should not have been found to be late merely because the 1st respondent had already testified. The application was in good faith and intended to outline the issues for determination . RESPONDENTS ARGUMENTS Al though the t hree respondent s each filed separate c291 responses to the appellant' s arguments, they took a common position on the three grounds of appeal . In response to the 1 st and 2nd grounds of appeal, they [30J argued that the appellants cannot rely on Order 20 Rule 8 of the RSC or Order XVIII of the High Court Rules because the amendment they were seeking to effect was in fact introducing a new defence . The defence as is currently set out, is [311 misrepresentation while the intended amendments seeks to introduce a new defence of fraud . Jll As regards the 3rd ground of appeal, they acknowledged c321 that an amendment can be effected at any time but that it is dependent on the circumstances of the case . They referred to cases including Zambia Seed Company [33J Limited v. West Co-OP Haulage Limited and Western Province Co-operative Union1 Zambia Consolidated , Copper Mine v. Chileshe2 and Western Province Co operative Union and Zambia Textiles Limited (in Liquidation) v. Progress Kalemba and 29 Others3 and submitted that the trial judge rightly rejected the application to amend because it was made late in the day. The respondent had already testified and closed her [34J case and there was nothing to suggest that even with the exercise of due diligence, the deficiency would not have been noticed. CONSIDERATIONS AND DECISION OF THIS COURT Al though the appellants filed arguments in reply to [3sJ the respondents ' submissions, we do not find it necessary to reproduce them because they basically Jl2 emphasise the issues already raised in their arguments in support of the appeal . Since the three grounds of appeal are interrelated, C36J we will deal with all of them at the same time . In t he case of Zambia Consolidated Copper Mine v. C37J Chileshe2 Chitengi JA., delivering the Judgment of the , Supreme Court, pointed out as follows : "On the totality of the authorities we have considered, we are of the firm view that although Order 20 rule 5 gives the court power to allow the plaintiff to amend his writ or any party to amend his pleadings, it does not provide a wide discretion and does not allow a general relaxation of the governing principle that any amendment after the expiry of the limitation period will not be allowed unless it is just to do so and it will be just to do so if there are peculiar circumstances which make the case an exceptional one". Further, in the case of Zambia Seed Company Limited C3BJ v. West Co-op Haulage Limited and Western Province Cooperative Union1 Malia, JS . ( as he then was) , , delivering the judgment of the Supreme Court, said the following : "Al though the pendulum weighs or tilts in favour of granti ng amendments , courts of law are entitled to refuse amendments in deserving cases. Trial courts must J13 examine the application for amendment very carefully in the light of affidavit evidence. In the process, the courts should consider the peculiar facts of each case. In doing so the court is enjoined to take into account a number of principles or factors including: (a} the attitude of the parties in relation to the amendment; (b} the nature of the amendment sought in relation to the suit; (c} the question in controversy; (d} the time the amendment is sought" He went on to point out that; (39J "If the application for amendment was delayed, the court should be interested to know what caused the delay. If the reason for seeking the amendment is as a result of an important issue relating to the applicant's case corning to the applicants notice late, that should be a consideration in his favour. But the court should take into consideration also whether the applicant, as a person of due diligence and business acumen, ought to have procured the information earlier than the time he obtained it" The thrust of the appellants' case is that the (40) proposed amendment is intended to provide particulars for the defence of fraud that the appellants have already pleaded. Our examination of the defence filed on 22nd May 2020, [411 does not point at any defence of fraud being pleaded by the appellants . J14 In their counterclaim, the appellants pleaded that [42J title to the plot which is the subject of this appeal was obtained through misrepresentation . This being the case, the proposed amendment, which [43J seeks to introduce fraud and particulars of t hat fraud, is an amendment that will introduce a new cause of action . The appellant has provided no justification [44J whatsoever, for the late appl ication . We say late because it was made ·after the 1st respondent had closed her case. All they have done is to strangely claim that they [4sJ seek to provide particulars for the fraud that was pleaded, when no fraud was pleaded at all . One of the considerations for the exercise of [46J discretion to amend, postulated in Zambia Seed Company Limited v. West Co-op Haulage Limited and Western Province Co-operative Union1 was the stage in the , proceedings, at which the application to amend is sought. J15 In this case, even though the trial was stil l in [47J progress, the respondent had closed her case . If the trial Judge had allowed the amendment, the r espondent would have required to reopen her case and probably amend her pleadings too. That would have been prejudicial to the other parties . In the absence of a valid reason for seeking t he [4BJ amendment and the respondent having closed her case, we are satisfi ed that the trial Judge properly exercised his discretion when he declined to allow the amendment . Consequently, we find that this appeal is devoid of C49J any merits and we dismiss it . We award the respondents costs and in default to be csoi taxed. DEPUTY JUDGE P Q_jz J\ 1 ~ MA~ 2024 ............~ ... ..... . A.M. Banda - .A. Sharpe COURT OF APPE COURT OF APPEAL JUDGE