Janus Walentin Jensen (Suing in his capacity as Executor of the Estate of the late Kathrine Walentin Jensen) v Louann Chalcraft (Sued in her capacity As Executrix of the Estate of the late Peter John Chalcraft) (2018/HP/0815) (15 January 2026) – ZambiaLII

/,:; ~~·· -- IN THE HIGH COURT FOR ZAMBIA~ 2018/HP/0815 ~~E~O-:-~ AT THE PRINCIPAL REGIST · : ~ ~ ~ U HOLDEN AT LUSAKA ~ (Civil Jurisdiction) ~ -N 2:0,-u 0/ , BETWEEN: .JANUS WALENTIN JENSEN (Suing 1n:.:fiis ._cHtacit: - Executor of the Estate of the late Kathrine alentin Jensen) PLAINTIFF AND LOUANN CHALCRAFT (Sued in her capacity as Executrix of the Estate of the later Peter John Chalcraft) DEFENDANT Before the Honourable Mrs. Justice R. Chibbabbuka on the 15th day of January, 2026 For the Plaintiff: Ms M. Seketi & Mr D. Chanda, Messrs Chalwe and Kabalata Legal Practitioners For the Defendant: Mrs E.T Changufu, Messrs Theotis Mutemi Legal Practitioners RULING Cases referred to: 1. Rosemary Bwalya, The Attorney General and The Commissioner ofL ands Vs Mwanamuto Investments Limited (Appeal No 41 of2 008) [2012] ZMSC 16 2. Attorney General Vs Aboubacar Tall and Another (SCZ Appeal No. 77 of 1994) 3. Paul Mumba Vs Zambia Revenue Authority, Appeal No. 123 of2013 4. Chick Masters Limited and Another Vs Investrust Bank Plc Appeal No. 74 of2014 5. Jamas Milling Limited Vs Imex International (2002) ZR 79 6. Zambia Seed Company Limited Vs West Co-op Haulage Limited SCZ/08/ 114/2013 Legislation 1·eferred to: High Court Act, Chapter 27 oft he Laws ofZ ambia Rl Rules of the Supreme Court (The White Book}, 1999 Edition Other works referred to: Black's Law Dictionary, Bryan A. gamer, 11th Edition Thompson Reuters, West Publishing Co, Zambian Civil Procedure Commentary and Cases Volume 1, LexisNexis, 2017 Patrick Matibini at page 699 cites Takwani Civil Procedure with Limitation Act, 1963 222 1.0 INTRODUCTION 1.1 This is an application by the defendant filed on the 18th September, 2025 by way of summons for an order for leave to further amend the defendant's defence dated 2nd June, 2025. The application is made pursuant to Order 3 .Rule· 2 of the High Court Rules, and Order 18 Rule 1 of the High Court Rules, Chapter 27 of the Laws of Zambia as read together with Order 20 Rules 5 and 8 of the Rules of the Supreme Court of England, 1965, 1999 Edition (The White book). 2.0 DEFENDANT'S AFFIDAVIT IN SUPPORT 2.1 The defendant filed an affidavit in support sworn to by Ethel Thelma Zulu Changufu counsel for the defendant who avers as follows: 2.2 The defendant filed an amended defence on the 2nd June 2025 and an amended reply to defence was filed on the 17th July, 2025. While preparing further documents in compliance with the Court's Orders for Directions, it became apparent that the amended defence filed on the 2nd June, 2025 contains certain errors that require rectification. The said error arises from the presence of two contradictory statements appearing at paragraphs 7 and 10 of the amended defence. In order to clarify the pleadings and avoid ambiguity, the defendant seeks to delete paragraph 10. R2 2.3 The defendant also seeks to make further amendments to the defence in the manner set out in the draft amended defence, with the proposed statements in green as is shown in exhibit "ETZl". 3.0 THE DEFENDANT'S SKELETON ARGUMENTS 3.1 In their skeleton arguments of even date, counsel made reference to Order 18 Rule 1 of the High Court Rules, in the High Court Act Chapter 27 of the Laws ofZ ambia, and Order 20 Rule 5 (1) of the Rules of the Supreme Court ofE ngland, 1965 (The White book) 1999 Edition for the argument that this Court has jurisdiction to grant leave to amend the defence as sought'by the defendant. That the law places no time frame per se within which an application for an amendment can be made as it states that amendments can be allowed at any stage of the proceedings. To buttress this argument reference was also made to the case of Rosemary Bwalya, The Attorney General and The Commissioner of Lands Vs Mwanamuto Investments Limited1 where the court held: "Although the 1st appellant has argued that she was prejudiced by the said amendment as the determination of the Originating Summons has been delayed, we do not agree with this argument as the law is very clear. This is that an amendment may be granted at any stage of the proceedings so long as it is before judgment." 3.2 Counsel went on to argue that an amendment can be allowed even where trial has been concluded and the matter adjourned for judgment as was held in the case of Attorney General Vs Aboubacar Tall and Another2 . That the Court also has powers to allow for amendments even after judgment has been rendered as is provided for under Order 20 Rule 8 (14) of the Rules of the Supreme Court which states that: R3 "There is no reason in principle, particularly having regard to the width ofO.2.r.1, whichpreclucles the Court in appropriate cases from amending the pleadings and proceedings even after final judgment. .. " 3.3 Reference was also made to Order 20 Rule 8 (9) and Order 20 Rule 8 (11) of the Rules of the Supreme Court to buttress the argument that amendments may be allowed before, at, or after the trial or even after judgment. That this is so long as no prejudice will be occasioned to the other party which cannot be compensated for by costs o~ otherwise. Counsel submitted that no prejudice will be occasioned to the plaintiff should the defendant's application be granted as the plaintiff will have an opportunity to respond to the amended defence by filing an amended reply to the defence. 3.4 It was counsel's further argument that as demonstrated in the affidavit in support of the application, the defendant's amended defence filed on the 2nd June, 2025 ought to be amended as it contains two contradicting paragraphs that need clarification and further that the defendant did not deny some of the n:!liefs seriatim. 3.5 On the basis of the foregoing arguments counsel ptayed that this Court allow the defendant to further amend her defence filed oh the 2nd June, 2025. 4.0 THE PLAINTIFF'S AFFIDAVIT IN OPPOSITiON 4.1 The plaintiff filed an affidavit in opposition on the 2nd October, 2025 sworn by Mwiche Seketi counsel for the plaintiff, whose contents I will not reproduce as they are mainly arguments. 5.0 THE PLAINTIFF'S SKELETON ARGUMENTS 5.1 In their skeleton arguments, of even date, counsel argued that the defendant's proposed amendments are unnecessary and will delay the R4 proceedings and will be costly and prejudicial to the plaintiff. That the proposed amendments do not in any way fall under the category mentioned in Order 18 Rule 1 of the High Court Rules, Chapter 27 of the Laws ofZ ambia which states that the amendment should be one, "that is necessary or proper for the purpose of eliminating statements which may tend to prejudice, embarrass or delay a fair trial. " That the said amendments could easily have been addre·ssed by the defendant's witnesses through their witness statements. 5.2 Counsel argued further that the second proposed amendment appearing as paragraph 13 in the proposed amended defence, is an attempt at relitigating an issue that was previously raised by the defendant as a preliminary issue and was decided upon. That as such the said proposed amendment is res judicata. To buttress this argument reference was made to the case of Paul Mumba Vs Zambia Revenue Authority3 which provides that a matter is res judicata if the same issues are relitigated. The Court was also referred to Black's Law Dictionary which defines res judicata as a thing adjudicated, that is an issue that has been definitivdy settled by judicial decision. That the defendant's notice of motion to raise preliminary issues dated 27th June, 2019, whose first issue raised, is exactly the same issue that the defendant is attempting to include in the proposed amended defence at paragraph 13. Counsel contended that these issues were raised and a ·Ruling and a Judgment rende.red on the merit and as such the san1e are res judicata. 5.3 Reference was made to the case of Chick Masters Limited and Another Vs Investrust Bank Plc4 where Lady Justice Kaoma explained that: "abuse ofp rocess can arise where the claim is vexatious, scurrilous or obviously ill-founded such as where proceedings are started to RS pursue a claim which has already been dealt with between the parties." In referring to the said Chick Masters Limited case, counsel strongly argued that the proposed amendment is also an abuse of court process. This is because the defendant appealed against the decision of the Deputy Registrar on the preliminary issue to a single Judge of the High Court who also upheld the Deputy Registrar's decision. 5.4 In relation to the last proposed amendment, counsel submitted that it is unnecessary as the item contained therein is already appearing in the amended defence that is before court. That as such the proposed amendment does not meet the threshold of Order 18 Rule 1 of the High Court Rules, Chapter 27 of the Laws of Zambia. Counsel submitted that this application would be prejudicial to the plaintiff as the plaintiff has a right to have the matter determined timeously and without delay occasioned by the parties and without having matters which have been litigated upon re-litigated. For this argument reference was made to the case of Jamas Milling Limited Vs Imex International5 where the Supreme Court held that: "It is not in the interest of justice that the parties by their shortcomings should delay the quick, disposal of cases and cause prejudice and inconvenience to other parties." 5.5 On the basis of the foregoing arguments counsel prayed that the defendant's application be dismissed with costs to the plaintiff. R6 6.0 THE DEFENDANT'S AFFIDAVIT IN REPLY 6.1 The defendant filed an affidavit in reply on the 14th October, 2025 sworn by, Ethel Thelma Zulu Changufu counsel for the defendant whose contents I will not reproduce as they are mainly arguments. 7.0 THE DEFENDANT'S SKELETON ARGUMENTS 7 .1 In their skeleton arguments of even date, counsel argued that the proposed amendment is necessary to clarify contradictions with the current pleadings and to ensure that the issues in dispute are properly defined ahead of trial. That while pleadings have closed, in line with Order 18 Rule 1 of the High Court Rules and Order 20 Rule 5 of the Rules of the Supreme court, 1999 edition, pleadings may be amended at any stage of the proceedings where the court is satisfied it is just to do so. Additionally, the said provisions of the law do not provide any stipulated or regulated period for any party to apply for leave to amend a pleading. 7.2 Reference was made to the case of Zambia Seed Company Limited Vs West Co-op Haulage Limited6 for the argument that procedural rules should not be applied rigidly where no prejudice results and where the amendment will facilitate a fair resolution of the dispute. 7 .3 On the basis of the foregoing arguments, counsel prayed that leave to amend the amended defence in the manner proposed for the sole purpose of clarifying the defendant's position through her pleadings be granted. 8.0 THE HEARING 8.1 At the hearing counsel for the defendant placed reliance on the affidavit in sup.port and skeleton arguments filed into court on the 18th September 2025 and the affidavit in reply filed on the 14th October, 2025 respectively together with supporting skeleton arguments. Counsel argued that the defendant intends to clarify a few paragraphs in the defence as some of R7 the said paragraphs will be prejudicial to the defendant's case. That premised on the plethora of cases and the law, an amendment can be made at any stage, so long as it is in the interest of justice. Counsel prayed that the said application be granted. 8.2 In opposing the application counsel for the plaintiff placed reliance on the affidavit in opposition and skeleton arguments filed on the 2nd October, 2025. That the proposed amendment speaks into a matter which was already resolved by a preliminary issue that was raised by the defendant and as such the defendant is trying to ask the court to adjudicate on a matter that is res judicata, thereby abusing the court process as well as delaying the proceedings. Counsel prayed that the court dismisses the application in the interest of justice with costs to the plaintiff. 8.3 1n reply, counsel for the defendant argued that the delay has not been occasioned by the defendant but by administrative overlaps and .the defendant could not be precluded from amending their defence on that basis. That in relation to the issue being res judicata the defendant has conceded in the affidavit in reply that only one proposed paragraph refers to the issues raised by counsel. The rest of the paragraphs seek to clarify the matter in the said defence. Counsel reiterated their prayer. 9.0 THE DECISION OF THE COURT 9 .1 I am indebted to all counsel for their arguments which this court has carefully considered. It is trite law that the main reason for allowing an amendment to pleadings is to facilitate the determination of the real question in controversy between the parties to the proceedings. The proposed amendments in the draft defence exhibited in the defendant's affidavit in support of this application reveal that paragraph 10 of the defence is to be deleted. The said paragraph states that: R8 10. The defendant shall aver that there was an agreement; however, the defendant avers that the said agreement was oral in nature and that the cause of action arose in the year 2005. Accordingly, the defendant contends that the claim is statute barred. 9.2 The said proposed amended defence indicates that paragraphs 13, 17 and 18 read as follows: "13. In any event the defendant will aver that the oral agreement, as claimed by the plaintiff, which we deny, concerning the disposition ofa n interest in the land in question, is contrary to the provisions ofs ection 4 oft he Statute ofF rauds Act of 1677 as read together with Sections 4 and 6 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia. 17. The defendant avers that the contents of paragraph 15 are within the peculiar knowledge of the plaintiff 18. The defendant maintains that the property was lawfully assigned to the him as the beneficial owner thereof to date. 9.3 The learned author of Zambian Civil Procedure Commentary and Cases Volume 1, LexisNexis, 2017 Patrick Matibini at page 699 cites Takwani Civil Procedure with Limitation Act, 1963 222 for the principles that should be borne in mind by the court in exercising its discretion to amend pleadings: "(a) All amendments should be allowed which are necessary for determination of the real controversies in the suit; {b) The proposed amendments should not alter and be a substitute for the cause of action on the basis of which the original was issued; R9 (c) Inconsistent and contradictory allegations, in negation to the admitted position of facts, should not be allowed to be incorporated by means of amendment; (d) Proposed amendments should not cause prejudice to the other side which cannot be compensated by means of costs; (e) An amendment of a claim or relief barred by time should not be allowed; (f) No amendment should be allowed which amounts or results in defeating a legal right to due to the opposite party on account of lapse of time; (g) No party should suffer on account of technicalities of law and the amendment should be allowed to minimize the litigation between parties; (h) The delay in filing applications for amendments of pleadings should be properly compensated by costs; and (i) An error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendments ofp leadings. The preceding principles are simply illustrative, and not exhaustive." 9 .4 In applying the foregoing principles as well those alluded to by the defendant and the .plaintiff, it is apparent that the main bone of contention by the plaintiff is that he will suffer prejudice as one of the proposed amendments under paragraph 13 is res judicata and that the proposed amendments will occasion delay in this matter. The plaintiff is also of the view that pleadings have been closed, that the proposed amendments can be dealt with at trial and that the proposed amendments do not meet the threshold under Order 18, Rule 1 of the High Court Rules Chapter 27 of the Laws ofZ ambia and as do not justify this application. RlO 9.5 The defendant on the other hand insists that the although pleadings have been closed, they can be reopened and the plaintiff will not be prejudiced as he will have an opportunity to respond should the proposed amendment be granted. That the pleadings should accurately reflect the party's position to ensure consistency between the pleadings and the evidence presented at trial. Further that the courts earlier determination was at preliminary stage and no prejudice or injustice would arise if the court were to allow the proposed amendment at trial. That paragraph 10 in the amended defence needs to be deleted as it contradicts paragraph 7. 9.6 In addressing the issue of deleting paragraph 10 of the amended defence, apart from the same being in conflict with paragraph 7 of the amended defence, I fin¢ that the same speaks to an issue of the cause of action being statute barred which issue was determined by the Deputy Registrar and was not raised on appeal before my learned sister Judge Bobo who previously had conduct of this matter in the High Court. As such this matter cannot be addressed again as it is res judicata and accordingly the proposed amendment for the deletion of the said paragraph 10 is allowed. 9.7 With regard to paragraph 13, the plaintiff has argued that the same is res judicata as it was equally dealt with by the Deputy Registrar. Upon perusal of the said Ruling of the said Deputy Registrar, Hon Mikallike as she was then held as follows: "The first point, as stated in the Notice is on the contract not being evidenced in writing contrary to section 4 of the 1677 Act and sections 4 and 6 of Cap 185. I have carefully examined the three provisions and I tend to agree with the plaintif.fs argument that they do not apply only to the contract in casu. I am of the view that these provisions would apply ift he oral contract between the plaintiff and the defendant was one which conveyed or transferred land from one to the other. But the plaintiff is alleging that the oral contract, the R11 subject of this action, is one where the plaintiff and the defendant agreed that she would release funds which were to be used by the defendant to acquire the property. I am in agreement with the submission that there was no legal requirement for this agreement to be in writing as it was not a contract for the sale of land." 9.8 On appeal of this Ruling to a single Judge of the High Court, Judge Bobo as she was then in her Ruling stated that: "Dissatisfied with the decision of the Deputy Registrar, the defendant launched this appeal proffering three grounds of appeal. However, the first two grounds were abandoned and only the third ground was argued and it is couched thus:- (iii) The learned Deputy Registrar erred in fact and law when she held that the matter should proceed to trial so as to determine whether a Trust had been created in this matter contrary to the Trusts Restrictions Act, Chapter 63 of the Laws of Zambia, despite the plaintiff admitting the fact that a trust had indeed been unintentionally created by the plaintiff 9.9 From the foregoing it is evident that the issue that the defendant wants to raise in the proposed amendment of paragraph 13 is an issue that is res judicata and the defendant had an opportunity to raise the same on appeal before a single Judge of the High Court but opted to abandon the said ground. As such, the same issue cannot now be snuck in through the back door. Accordingly, I reject the arguments advanced by counsel for the defendant in that regard and agree with counsel for the plaintiff that this matter is res judicata and an abuse of the court process. The said proposed amendment of paragraph 13 is accordingly also denied. R12 9.10 Last but not the least, in examining the proposed amendments in paragraphs 17 and 18 of the amended defence, I find that the same will not have any prejudice to the plaintiff and allow the same and accordingly reject the arguments on delay by the plaintiff as the matter has already been set down trial. The said amendments are to be done by the 20th February, 2026 and the plaintiff is given leave to file an amended reply to defence by the 16th March, 2026. 9.11 Costs of this application are in the cause. ~.~ Delivered at Lusaka this . .,. .....~ J?~ay-of .,.).. .. - ...... 2026 Q l"{EPUBLIC OF ZAn·1,. IA ······· HIGH COURT OP ZAMBIA ~ ~ -,'i) ~ UKA ./ f ---P-°-tf.ctt ~iblrabouka HIGH COURT JUDGE RB