Armsafety Security Limited v Christabel Bupe Mwamba and Anor (2024/HP/403) (15 November 2024) – ZambiaLII

Rl IN THE HIGH COURT OF ZAMBIA 2024/HP/403 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) OBLIC O \OIi COURTo BETWEEN: PRJNCIPAL ARMSAFETY SECURITY LIMITED 5 ~'()V 2024 NTIFF J AND RfGISTR\'. CHRISTABEL BUPE MWAMBA 0067, LUS 1st DEFENDANT HENDRIX CHILUFYA 2 nd DEFENDA.NT BEFORE HON MRS JUSTICES. KAUNDA NEWA IN CHAMBERS THE 15th DAY OF NOVEMBER, 2024 , For the Plaintiff Ms Mary Musonda, Messrs Lennard Lane Partners For the Defendants Mr M. C. Kanga, Messrs Makebi Zulu Advocates RULING CASES REFERRED TO: 1. Bryne v Kanweka 1967 ZR 82 2. Cobbold v London Borough of Greenwich 1999 3. Zambia Seed Company Limited v West Co-op Haulage Limited and Western Province Co-operative Limited SCZ Appeal No 112 of2013 4. Chick Masters and another v lnvestrust Bank Plc No 74 of 2014 5. Chimanga Changa Limited v Jospeh Chewe Appeal No 220 of 2021 LEGISLATION REFERRED TO: 1. The High Court Rules, Chapter 27 of the Laws of Zambia 2. The Rules of the Supreme Court of England, 1965, 1999 Edition OTHER WORKS REFERRED TO: 1. Black's Law Dictionary 2. Zambian Civil Procedure Commentary and Cases, Vol 1, by Patrick Matibini, Lexis Nexis, 201 7 R3 application to set aside the Writ of Summons and statement claim for irregularity. On 11th April, 2024, I Ordered that the irregularity in the Writ of Summons and statement of claim of not stating the postal address for Counsel for Armsafety Security Limited, and the physical, postal and electronic address for the said Armsafety Security Limited was curable by way of amendment. 2.3 In that regard, I directed that amendment be done to cure the irregularities that had been cited. The amended Writ of Summons was subsequently filed on 16th April, 2024. Thereafter, the application for an Order of injunction was heard and determined, and Orders for Directions were issued. The application which is subject of this Ruling was filed and was granted on 28th August, 2024, there having been no opposition to the application. 2.4 Then by a Consent Order which was executed on 24th September, 2024, the Order for amendment was set aside. The application was re-heard on 31st Octab er, 2024. 3. SUBMISSIONS AT THE HEARING SUBMISSIONS BY COUNSEL FOR ARMSAFETY SECURITY LIMITED 3.1 Counsel for Armsafety Security Limited, in making the application, relied on the affidavit which was filed in support of the application, together with the List of Authorities and Skeleton Arguments in support. R4 RESPONSE BY COUNSEL FOR CHRISTABEL BUPE MWAMBA AND HENDRIX CHILUFYA 3.2 In response, Counsel stated that they opposed the application, and they relied on the affidavit in opposition and the List of Authorities and Skeleton Arguments 1n opposition, which were filed on 25th October, 2024. In augmenting, Counsel's submission was that the gist of the opposition, was that Armsafety Security Limited wished to introduce a new cause of action, which only accrued during the pendency of this matter. 3.3 The contention was that doing so, was not allowed, and reference was made to the explanatory notes in the Rules of t he Supreme Court of England, 1965, 1999 Edition, which had been cited in paragraph 2 of the List of Authorities and Skeleton Arguments in opposition. It was submitted that the said explanatory notes state that an amendment, dates back to the date of the action. 3.4 Counsel still in submission, stated that the Court of Appeal in the case of Chimanga Changa Limited v Jospeh Chewe (5J interpreted Order 20 Rule (8) (2) of the Rules of the Supreme Court of England, and held that an amendment takes effect from the date of the original issue of the Writ. 3.5 Therefore, the new cause of action, as stated in paragraph 4 of the affidavit which was filed in support of the application, did not exist at the date of the original Writ, and it followed that the application should be dismissed with costs to Christabel Bupe Mwamba and Hendrix Chilufya. RS REPLY BY COUNSEL FOR ARMSAFETY SECURITY LIMITED 3.6 The submission 1n reply, was that if the application was granted, no prejudice would be suffered by Christabel Bupe Mwamba and Hendrix Chilufya. Counsel further stated that the amendment was necessitated by the fact that the cause of action accrued at the month end of June, 2024. Thus, it would be in the interests of justice that the application be granted. 4. DECISION OF THIS COURT 4.1 I have considered the application. It was made pursuant to Order 18 Rule 1 of the High Court Rules, Chapter 27 of the Laws of Zambia. 4.2 That Order provides as follows: "l. The Court or a Judge may, at any stage of the proceedings, order any proceedings to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass or delay the fair trial of the suit, and for the purpose of determining, in the existing suit, the real question or questions in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just." R6 4.3 In making the application, Caroline Puta, Counsel seized with conduct of the matter, on behalf of Armsafety Security Limited gave a background to how the matter was commenced with the Writ of Summons and statement of claim being exhibited as exhibit 'CPl '. She deposed that this was on 3rd November, 2023, and that since then, a cause of action had arisen. 4.4 Therefore, as shown on exhibit 'CP2', a copy of the proposed amended Writ of Summons and statement of claim, Armsafety Security Limited wished to amend the Writ of Summons and statement of claim. It was further her averment, that 30th June had passed, and Christabel Bupe Mwamba and Hendrix Chilufya had not made payment. 4.5 The law in Order 18 Rule 1 of the High Court Rules was stated in the List of Authorities and Skeleton Arguments in support. The case of Chick Masters and another v Investrust Bank Plc f4J was argued as having relied on the case of Bryne v Kanweka f1 ), which held that all questions in controversy are those specifically raised in the pleadings and no other. 4.6 Further, the case of Cobbold v London Borough of Greenwich f2J was stated as having held that ainendments in general, ought to be allowed, so that the real dispute between the parties can be adjudicated upon, provided that any prejudice that may caused by the amendment can be compensated in costs, and the public interest in the efficient administration of justice is not significantly harmed. R7 4.7 Based on the above, the prayer was that the application to amend be granted. 4.8 In opposition, Michael Chola Kanga, Counsel seized with conduct of the matter on behalf of Christabel Bupe Mwamba and Hendrix Chilufya, deposed that as shown in paragraph 4 of the affidavit which was filed in support of the application, Armsafety Security Limited commenced the action before the cause of action accrued. 4.9 It was averred that a perusal of exhibit 'CP2' to the affidavit which was filed in support of the application, revealed that Armsafety Security Limited sought to relegate the initial cause of action for cancellation or repudiation of the contract, to an alternative remedy and wished to heavy rely on the new cause of action. 4.10 Counsel contended the new cause of action arose on 1st July, 2024, while Armsafety Security Limited commenced this action on 20th March, 2024, and not 3rd November, 2023, as deposed to in paragraph 3 of the affidavit which was filed in support of the application. It was stated that this Court issued Orders for Directions on 10th June, 2024, which Christabel Bupe Mwamba and Hendrix Chilufya had complied with. 4.1 1 Further averment was made, that a defence had been filed which had responded to Armsafety Security Limited's claims, and a counterclaim had also been filed. It was also deposed that the proposed amendment would change the character of the claims, and would warrant Christabel Bupe Mwamba R8 and Hendrix Chilufya rethinking th eir entire strategy and arguments , and it would render the defence and counterclaim moot. 4.12 Counsel further deposed that the amendment would delay the trial, and would result in more costs being incu rred. 4.13 The arguments in the List of Au thorities and Skeleton Arguments in opposition, were that while this Court is empowered to grant applications to amend pleadings, the explanatory notes in Order 20/8/2 of the Rules of the Supreme Court of England, state the effect of amendment as follows: "An amendment duly made, with or without leave, takes effect, not from the date when the amendment is made, but from the date of the original document which it amends; and this rule applies to every successive amendment of whatever nature and at whatever stage the amendment is made. Thus, when an amendment is made to the writ, the amendment dates back to the date of the original issue of the writ and the action continues as though the amendment had been inserted from the beginning: "the writ as amended becomes the origin of the action, and the claim thereon indorsed is substituted for the claim originally indorsed". The rule as to the effect of an amendment is the reason why a Plaintiff may not amend his writ by R9 adding a cause of action which has accrued to him since the issue of t he writ and this rule lies at the root of the difficulties which arise when an amendment is sought which will or might prejudice the other party or deprive him of a defence which has already accrued to him (see "New case" and ''Rights accrued", paras 20/8/28 and 20/8/33)." 4.14 The explanatory notes in Order 20/8/28 of the said Rules of the Supreme Court of England were referred to, which state that: "The Court will not refuse to allow an amendment simply because it introduces a new case. But it will do so where the amendment would change the action into one of a substantially different character which would more conveniently be the subject of a fresh action or where the amendment will still leave the Plaintiff without any title to sue at date of writ; or where the cause of action sought to be introduced by the amend,nent did not exist at the date of the writ." 4.15 The argument was that the affidavit which was filed in support of the application, stated that the cause of action accrued after the action was commenced. It was contended that granting the application to amend, would have the effect of a new cause of action being sought against Christabel Bupe Mwamba and Hendrix Chilufya, which would have RlO been filed on 20th March, 2024, approximately Three (3) months before it accrued. 4.16 This it was argued, was supported by the relation back doctrine, which is defined by Black's Law Dictionary as: "An Act done at a later time that is, under certain circumstances treated as though it occurred at an earlier time." 4.17 Further argument was made, that if leave to amend the Writ of summons and statement of claim was granted, it would prejudice Christabel Bupe Mwamba and Hendrix Chilufya, as a defence had been filed in response to the claims, and the Orders for Directions had been complied with by Christabel Bupe Mwamba and Hendrix Chilufya. 4.18 It was stated that they had even filed a counterclaim to the claims. Therefore, if the amendment was granted, it would entail that the entire case would be overhauled , which would significantly delay the proceedings, and cause the incurrence of additional costs. 4. 19 Order 18 Ru le 1 of the High Court Rules, as a general rule, allows for amendments to pleadings at any stage of the proceedings, so that all the issues in controversy can be decided in one action. 4.20 In the case of Zambia Seed West Company Limited v West Co-Op Haulage Limited and Western Province Co operative Limited the Supreme Court f3J held that; "the policy on the law is that amendments to pleadings sought before hearing should be freely Rll allowed if they are made without injustice to the other side. In other words, our adjectival law leans heavily in favour of amendments, and is generally against the refusal of amendments". 4.21 However, it is trite that in allowing amendments, certain principles apply. 4.22 The learned author Patrick Matibini, in the book, Zambian Civil Procedure Commentary and Cases, Vol 1 Lexis Nexis, 2017 at page 698 states that the grounds in deciding whether or not to grant or refuse an amendment is dependent on whether- (a) The p roposed amendment is made mala fide or bona fide}· (b) The amendment will cause prejudice to the opposing party; or (c) Such prejudice may be cured by an Order for costs} or where appropriate} an adjournment. 4.23 He goes on to further state at page 699, citing Tawkin Civil Procedure with Limitation Act 1963 222} that: "The following specific principles should be borne in mind in the exercise of discretion to amend pleadings; (a)All amendments should be allowed which are necessary for determination of the real controversies in the suit; R12 (b) The proposed amendments should not alter and be a substitute for the cause of action on the basis of which the original lis was issued; (c) Inconsistent and contradictory allegations, in negation to the admitted position of facts or mutually destructive allegations of facts, should not be allowed to be incorporated by means of the 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; (J} No amendment should be allowed which amounts or results in defeating a legal right due to the opposite party on account of lapse of time; (g) No party should suffer on account of technicalities of the law and the amendment should be allowed to minimize the litigation between the parties; (h)The delay in filing applications for amendment of pleadings should be properly compensated by costs; and (i) An error or mistake, which if not fraudulent, should not be good ground for rejecting the application for amendment of pleadings." R13 4.24 In this matter, the proposed amended Writ of Summons and statement of claim, seeks to change the main claim from repudiation of the contract of sale, to payment of the balance of the purchase price in the sum of Kl , 200, 000.00 and in the alternative, cancellation of the contract of sale and a refund of the sum of K450, 000.00, as well as damages for breach of contract. 4.25 The explanatory notes in Order 20/8/2 and Order 20/8/28 of the Rules of the Supreme Court of England, which have been relied on by Christabel Bupe Mwamba and Hendrix Chilufya, indeed do state that an amendment will not be allowed where it introduces a new cause of action. The rationale for this, is that an amendment dates back to the date when the Writ was issued, and in Order for one to sue, there must be a cause of action. 4.26 However, I note that the full provisions of the explanatory notes in Order 20/8/2 of the said Rules of the Supreme Court of England have not been stated. Those e2rplanatory notes also state that: "Where, however, the amendment sought to be made relates to matters going to the remedy claimed rather than introducing a new cause of action, the Court will grant leave to amend the original pleadings in order to allege facts arising subsequent to the date of the writ or counterclaim, e.g. the acceptance of the repudiation of contract and a claim for further loss arising out of such R14 repudiation and a declaration relating to such repudiation and its acceptance." 4.27 The original claim in this matter is for repudiation of the contract of sale, on the basis that Christabel Bupe Mwamba and Hendrix Chilufya in breach of the advice, that they would only take up possession of the premises contracted to be sold upon the expiry of Three (3) months of the notice that was given to the tenants to vacate the premises had been harassing the tenants to vacate. 4.28 Thus, the claim is for repudiation of the contract and a refund of K450, 000.00 which was paid as part of the purchase price. 4.29 The defence and counterclaim allege that contrary to the assertions, it was a term of the agreement that vacant possession of the property would be given on the first instalment of K450, 000.00 being paid. However, after that amount was paid, Armsafety Security Limited opposed the taking of possession of the property, and demanded that an extra K300, 000.00 be paid before possession could be given. 4.30 Further defence is alleged that efforts to complete the transaction h ad failed, as Armsafety Security Limited needed to conclude the transaction with Investrust Bank Plc, the mortgagee in possession. Thus, Christabel Bupe M,1/amba and Hendrix Chilufya counterclaim specific performance of the agreement and damages for breach of contract. 4.31 In light of the above averments in the pleadings, it can be seen that the relief sought to be introduced by Armsafety RlS Security Limited by the amendment arose, after the matter was commenced. As a general rule, such an amendment is not allowed, as it did not exist at the time the Writ was issued. 4.32 However, in line with the explanatory notes in Order 20/8/2 of t he Rules of the Supreme Court of England, an a1nendment that alleges facts arising subsequent to the date of the writ or counterclaim, such as the acceptance of the repudiation of contract, and a claim for further loss arising out of such repudiation, and a declaration relating to such repudiation and its acceptance is allowed. 4.33 This is because such a claim arises out of the original claim and is not a new cause of action per se. In this matter, the proposed amended claim can be said to be a claim arising out of the initial claim for repudiation of the contract. That claim arises out of the initial claim, and it is not a new cause of action, which would not be allowed in line with the Rules that govern amendment of pleadings. 5 . CONCLUSION 5.1 That being th e position, the amendment as prayed is allowable, and I grant the application to amend the Writ of Summons and statement of claim as prayed. The amended Writ of Summons and statement of claim shall be filed by 29th November, 2024, failure to which the leave will be deemed not to have been granted. R16 5.2 Costs of the amendment however go to Christabel Bupe Mwamba and Hendrix Chilufya which shall be taxed in default of agreement. Leave to appeal is granted. DATED AT LUSAKA THE 15th DAY OF NOVEMBER, 2024 S. KAUNDA NEWA HIGH COURT JUDG