Metro Advertising v Zambia National Commercial Bank Plc (2024/HPC/0542) (13 March 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2024/H PC/0542 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) I 3 MAR 2f'"5 BETWEEN: METRO ADVERTISING PLAINTIFF AND ZAMBIA NATIONAL COMMERCIAL DEFENDANT BANK PLC Before Hon. Lady Justice Irene Zeko Mbewe in Chambers For the Plaintiff: Mr. P Chulu and Mr C Chembo of Messrs Patrick Chulu Legal Practitioners For the Defendant: Ms C Lunda and Mr Z Sampa of Messrs Simeza Sangwa and ~ Associates RULING Cases referred to: 1. Lusaka West Company Limited, BSK Chiti and ZSIC v Turnkey Properties [19901992) ZR 1 2. Hope Bwalya v Blue Lifestyle Limited CAZ Appeal No 52 of 2018 3. Rush and Tompkins Ltd v Greater London Council and Another [1989) AC 1280 4. Cutts v Head [1984) Ch 290 legislation referred to: 1. High Court Rules, Cap 27 of the laws of Zambia 2. Rules of the Supreme Court, 1999 Edition Rl I Page At the commencement of trial, Counsel for the Defendant raised an objection to the production of the Plaintiff's witness statement of Kizito Mulaisho specifically paragraphs 19-29 as well as the recordings exhibited at page 19 of the Plaintiffs supplementary bundle of documents. The premise of the objection is that the said evidence sought to be tendered by the said witness is evidence of negotiations prior to commencement of the suit aimed at settling the matter amicably. Therefore, the said evidence is privileged and in support of this proposition relied on the case of Lusaka West Company Limited, BSK Chiti and ZSIC v Turnkey Properties < 1l. Counsel further submitted that as a general rule without prejudice communication is inadmissible on grounds of public policy so as to protect general negotiations of the parties with a view to reaching settlement out of Court. The Court's attention was drawn to the case of Hope Bwalya v Blue Lifestyle Limited (2l where reliance was placed on Order 24/5/45 Rules of the Supreme Court, 1999 Edition. In response, Counsel for the Plaintiff opposed the objection submitting that a party is allowed to bring evidence on pleaded matters and the paragraphs in the witness statement support the averments in paragraph 15-36 of the Plaintiffs witness statement. The Court's attention was drawn to the case of Anderson Kambela Mazoka v Mwanawasa (3l_ Further it was submitted that the record shows the Defendant raised a similar application challenging the statement of claim on ground its contained matters arising from negotiations and the Court refused to hear the application. R2 I Page In reply, Counsel for the Defendant concluded his submissions by requesting the Court to expunge the offending paragraphs in the Plaintiff's witness statement as it offended the 'without prejudice rule'. Law and analysis I have considered the objection raised and the arguments advanced by the respective parties. The issue for determination is whether the paragraphs 19-29 of Kizito Mulaisho's witness statement and the audio recording in issue are privileged as alleged by Counsel for the Defendant. I have addressed my mind to the holding of the Supreme Court in the case of Lusaka West Development Company Limited, B.S. K. Chiti (Receiver), Zambia State Insurance Corporation v Turnkey Properties Limited (supra) in which it was stated that as a general rule, without prejudice communication or correspondence is inadmissible on grounds of public policy. This is done to protect genuine negotiations between the parties with a view to reaching a settlement out of court. In the case of Rush and Tompkins Ltd v Greater London Council and Another (4l, the Court gave guidance on the without prejudice rule and held as follows: "That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged as far as possible to settle their disputes without resort to litigation and R3 IP a ge should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. 11 In the case of Cutts v Head (5l Oliver L.J at page 306 had this to say: "The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence. A competent solicitor will always head any negotiating correspondence "without prejudice" to make clear beyond doubt that in the event of the negotiations being unsuccessful they are not to be referred to at the subsequent trial. However, the application of the rule is not dependent upon the use of the phrase "without prejudice" and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission. 11 The same principles have been well settled under the provisions of Order 24/5/45 Rules of the Supreme Court, 1999 Edition stating that the 'without prejudice rule' governs the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish. The Order inter alia states as follows: "The "without prejudice" rule governs the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their difference rather than litigate them to a finish. The purpose of the rule R4 IPa ge is to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement. Without prejudice material will be admissible if the issue is whether or not negotiations resulted in an agreed settlement .... but in relation to any other issue an admission made in order to achieve a compromise should not be held against the maker of the admission or received in evidence; moreover an admission made to reach a settlement with a party is not admissible in proceedings between the maker of the admission and a different party, even if such proceedings are within the same litigation ... but the general public policy that applies to protect genuine negotiations" It follows that any discussions between the parties for the purpose of resolving the dispute between them are not admissible, even if the words "without prejudice" or their equivalent are not expressly used. The without prejudice rule excludes all negotiations genuinely aimed at a settlement, whether oral or in writing, from being given in evidence. Having set out the law, I shall now delve into the impugned paragraphs. Paragraph 19 of the witness statement refers to discussions between the Plaintiff and Defendant; paragraph 20 elaborates the purpose of the meeting with the Defendant; paragraph 21 references an attempt to settle matters amicably; paragraph 22 refers to a counter offer being made by the Plaintiff in response to the discussion with the Defendant; paragraph 23 refers to the rejection of the counteroffer arising from the parties' discussions to settle the matter amicably; paragraph 24 in is on acceptance of the Defendant's offer; paragraph 25 refers to an alleged deed of settlement; paragraph 26 refers to RS I Page a further discussion relating to the deed of settlement; paragraph 27 still makes references the possible ex curia settlement; paragraph 28 is referencing the ex curia settlement and alleged deed of settlement; paragraph 29 is more or less on how the ex curia negotiations collapsed. Further, Counsel for the Defendant objected to the production of the audio recording of the negotiations appearing at page 19 of the Plaintiffs supplementary bundle of documents. A review of the averments contained in paragraphs 19 to 29 of the Plaintiffs witness statement of Kizito Mulaisho reveals the reference to settlement discussions/offers. The audio recording refers to negotiations. Applying the law to the facts, it is trite that any discussions between the parties for purposes of resolving the dispute between them are not admissible and documents containing such material are themselves privileged from production as per Order 24/5/45 Rules of the Supreme Court, 1999 Edition. This privilege attaches to any discussions that occurred between actual or prospective parties with a view to avoiding litigation. I note that on the facts herein, no settlement was ever reached between the parties. For the above reasons, I am satisfied the averments in paragraphs 19-29 of the witness statement and the audio recording stated above are privileged. Counsel for the Plaintiff argues that the Defendant is estopped from objecting to the audio recording as they never raised an objection at inspection stage, and it is in fact the Defendant in its bundle of documents from pages 4-19 who have produced documents that came out of the negotiations between R6 I Page the parties. Further, it is the Defendant that raised the issue of the deed of settlement appearing at page 14 of the Defendant's bundle of documents. I shall not delve into this issue that as been raised as it has come through submissions. The correct procedure should be employed by the Plaintiff. For the above reasons, Counsel for the Defendant's objection is sustained. Consequently, paragraphs 19-29 of the witness statement of Kizito Mulaisho are expunged from the record including the audio recording appearing at page 19 of the Plaintiff's supplementary bundle of documents. The Plaintiff is granted leave and is at liberty to amend the statement of claim and Kizito Mulaisho's witness statement within 14 days herein. The Defendant upon service of any amended documents is granted leave to make any consequential amendments 14 days after receipt. Costs shall remain in the cause. Delivered under my hand this 13th day of March, 2025 IRENE ZEKO MBEWE HIGH COURT JUDGE R7 I Page