Ju Fred Matenda Lungu v Chilupe and Permanent Chambers (Sued in its capacity both as a law firm and and employer) (2021/HP/1491) (17 December 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2021/HP/1491 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA EUC 0 (CIVIL JURISDICTION) ,I\ l"U\Jk1 OF- ,-1/ l L""IPA L 1 7 DEr 1 BETWEEN: ., /"..',".;' -" •1• JU FRED MATENDA LUNGU Rl'GIS fR\ , ~ PLAINTIFF :-,0(;6'}, l..: AND CHILUPE AND PERMANENT CHAMBERS DEFENDANT (Sued in its capacity both as a law firm and an employer) Before the Honourable Mrs Justice Ruth Chibbabbuka on the 17th day of December, 2024 For the Plaintiff: In person For the Defe nda nt: No appearance RULING Cases referred to: 1. Christie Vs Christie 1873 LR 8 Ch App 499 2. Blake Vs Albion Assurance Society 1876 CP 663 3. Davy Vs Garret 1878 7 Ch D 473 4. Lumb Vs Beaumont (1884), 49 L. T. 772 5. Brooking Vs Maudslay (1886) 55 LT 343 6. Kelvin Hang'andu and Company (a.firm) Vs Webby Mulubisha (S.C.Z Judgment No. 39 of 2008) 7. Child Stenning (1877) 5 Ch.D 695 8. Re Morgan (188 7) 35 ChD 4 92 9. City Express Ltd Vs Southern Cross Ltd 2006/ HPC/ 26 10. Zambia Consolidated Copper Mines Ltd Vs Joseph David Chileshe SCZ Judgment No. 21 of Legislation referred to: High Court Act, Chapter 27 of the Laws ofZ ambia Rules oft he Supreme Court ofE ngland, White Book, 1999 Edition Rl Other works referred to Odgers Principles ofP leadings and Practice in Civil Action 1.0 Introduction The defendant in this r.natter issued a Notice to Raise Preliminary Issues on the 16th December, 2021 pursuant to Order 14 A of the Rules of the Supreme Court (White Book) 1999 Edition which provision was subsequently amended to Order 18 Rule 19(1) as read together with Order 13 Rule 5 of the Rules of the Supreme Court with the leave of the court on the 3rd February, 2022. The delay in rendering this Ruling is regretted and is due to the heavy work load. The issues to be determined by this Court are outlined below as follows: 1. Whether it is against the interests of justice or proper for this Honourable Court to allow paragraphs, namely paragraphs 6, 8-13, 2026, 28, 34,40-49 and 54-55 contained in the plaintiffs statement of claim which statements contain issues that are extraneous and irrelevant in nature thereby departing from the plaintiffs claim resulting in the pleading becoming scandalous. 2. Whether the court has power at any stage to strike out or order the amendment of the whole or part of any pleading or endorsement which discloses no reasonable cause of action or defence, or which is scandalous, frivolous, or vexatious, or which may prejudice, embarrass or delay the fair trial of action. 3. Whether the mode of commencement by the plaintiff in the High Court of Zambia against the defendant with regards to the alleged illegal merger of the firm was in the wrong forum pursuant to Legal Practitioners Act, Chapter 30 of the Laws ofZ ambia, thereby amounting to Court having no jurisdiction to hear that particular claim in the matter. R2 2.0 The defendant's affidavit in support The defendant on even date filed an affidavit in support of the Preliminary Issues raised deposed to by Willie Aubbie Mubanga a partner in the defendant law firm. In that affidavit the defendant avers that the plaintiff in his account of events in the statement of claim in paragraphs 6, 8-13, 20-26, 28, 34, 40-49 and 54-55 addresses scandalous affairs of the law firm which are irrelevant to his cause of action and or are unnecessary and extraneous in nature as they are meant to prejudice this court and embarrass the defendant firm. The Court lacks jurisdiction to hear the same issues contained 1n the aforementioned paragraphs as the affairs of the law firm are to be dealt with by the Legal Practitioners Committee. Further that the Court has no jurisdiction to hear such grievances unless and until directed by the Legal Practitioners Committee under the relevant provisions of the Legal Practitioners Act. That the said paragraphs be expunged from the record as the said paragraphs have the impact of misleading the court and it is absolutely necessary in the interest of justice that the said paragraphs be expunged from the record. Further that if this application is granted, it will not defeat the action or matter in its entirety as there is no bar to the plaintiff filing an amended statement of claim. 2.1 The defendant's skeleton arguments and list of authorities The defendant filed skeleton arguments and list of authorities in support of his application wherein counsel argued that Order 18 Rule 19 (1) of the Rules of the Supreme Court (White Book) 1999 Edition afford a prompt and summary method of disposing of groundless actions and excluding immaterial issues. That under this Rule the court has power at any stage to strike out or order the amendment of the whole or part of any pleading or endorsement which discloses no reasonable cause of action or defence or which is scandalous, frivolous, vexatious, or which may prejudice, embarrass or delay the fair trial of an action, or ~,hich is otherwise an abuse of court process. Counsel contended that the R3 plaintiffs main claim is to do with the payment of salaries, allowances, underpayments, emoluments and redundancy package due to him which claims are in paragraphs 1, 2 and 4 of the plaintiffs claim. That notwithstanding, the plaintiff in his statement of claim alleges embarrassing, scandalous and extraneous claims, which claims have no relation to the plaintiffs cause of action and or main relief. It was counsel's argument that the High Court has general jurisdiction under Order 18 Rule 19 (5) of the Rules of the Supreme Court to expunge scandalous matter in any record or proceeding. That in the case of Christie Vs Christie1 Selborne LC observed that the sole question is whether the matter alleged to be scandalous would be admissible in evidence to show the truth of any allegation in the pleading which is material with reference to the relief prayed. Further that it was held in the case of Blake Vs Albion Assurance Society2 that degrading charges which are irrelevant or if, though the charge is relevant, unnecessary details are given, the pleading becomes scandalous. Counsel contended that it was trite that pleadings must only contain a statement in summary form of material facts as per Order 18 Rule 7 (1) of the Rules of the Supreme Court. That statements of immaterial and unnecessary facts must be struck out as was held in the case of Davy Vs Garret3 . The court "''as also referred to Order 18 Rule 19 (5) of the Rules of the Supreme Court and the cases of Lumb Vs Beaumont4 and Brooking Vs Maudslay5 where it was held that: ". ...i f any unnecessary matter in a pleading contains any imputation on the opponent, or makes any charge of misconduct or bad faith against him or anyone else, it will be struck out, for it then becomes scandalous. .. " In relation to the argument about the alleged illegal merger of the firm and this court being the wrong forum to determine such an issue, reference was made to R4 the case of Kelvin Hang'andu and Company (a firm) Vs Wehby Mulubisha6 where it was held that: ". .. we are not in a position to uphold or to make a finding that the plaintiff was guilty of professional misconduct in terms of sections 52 (b) and 53 of the Legal Practitioners Act, Chapter 30 of the Laws of Zambia. In our view, this is however, a proper case to be referred to the Disciplinary Committee of the Law Association of Zambia for further investigations into the conduct of the plaintiff to determine whether his conduct amounted to professional misconduct. ... " In placing reliance on the Kelvin Hang'andu case, counsel was of the firm view that the affairs of a law firm are to be dealt with by the Legal Practitioners Committee and the court has no jurisdiction to hear such grievances unless and until directed by the Legal Practitioners Committee. Counsel prayed that their application be granted. 3.0 The plaintiff's affidavit in opposition The plaintiff filed an affidavit in opposition on the 26th January, 2022 where he avers that the merits that the reliefs he is seeking including the declaration of the merger as being illegal cannot be said or described to be scandalous such that they be expunged from the statement of claim without the defendant giving his defence to his allegations which he believes to be true and correct. That he has alleged that the defendant has not acted in his best interest or his expectations as a businessman of the stature, eminence and reputation of a legal counsel and employer which are facts the defendant ought to clear himself of in his defence. This court has jurisdiction to hear this matter. In September, 2016 he and three fellow redundant former employees took the defendant to the Law Association of Zambia where the defendant raised similar preliminary issues alleging that the Law Association of Zambia had no jurisdiction to hear their complaint of this RS very nature. He and his colleagues responded to the defendant's preliminary issues raised before the Law Association of Zambia to which they were advised by the Law Association of Zambia to take their case to the courts of law of which he has now done. The mode of commencement of his allegations against the defendant with regard to the illegal merger of the defendant as a law firm, before this court is within the law especially that when he previously took the same matter before the Law Association of Zambia in September, 2016, the defendant objected to his action similarly claiming that it was a wrong forum. The defendant does not deserve to be granted the reliefs he seeks m this preliminary application and should instead be ordered to provide his defence to the plaintiffs statement of claim. 3.1 The plaintiff's skeleton arguments and list of authorities The plaintiff filed skeleton arguments and list of authorities on even date wherein he cited Odgers Principles of Pleadings and Practice in Civil Action, chapter 10 on attacking your opponent's pleadings which states as follows: ". ... a master may order to strike out or amend any matter in any pleading which may be scandalous, frivolous or vexatious, or which may tend to prejudice, embarrass or delay the fair trial oft he action. In flagrant cases he sometimes awards costs on the common fund basis. But such orders are not lightly made. One party cannot dictate how the other shall plead. The primary test of relevance in this context is admissibility in evidence." The plaintiff also cited the cases of Child Stenning7 and Re Morgan8 as cited in Odgers Principles of Pleadings and Practice in Civil, where it was held that: "The mere fact that an allegation is unnecessary is no ground for striking it out; nor a pleading embarrassing merely because it contains allegations which are inconsistent or stated in the alternative." R6 In placing reliance on the foregoing authorities, the plaintiff contended that he has stated his case fully and has narrated the circumstances leading to this action. As such the plaintiff prayed that the defendant's application be refused and that instead the court order the defendant to file his full defence. 4.0 The defendant's affidavit in reply The defendant on the 1st February, 2022 filed an affidavit in reply where it is averred that because of the impugned paragraphs in the plaintiffs statement of claim this application is properly before this court. I have not reproduced the rest of the averments canvassed in the defendant's affidavit in reply as they consist of arguments, as well as conclusions and not statements of fact as required by the Rules of Court in filing affidavits under Order 5 Rules 15 and 16 of the High Court Rules, of the High Court Act. 5.0 At the hearing At the hearing on the 22nd February, 2022, counsel for the defendant placed reliance on the affidavit in support and affidavit in reply and accompanying skeleton arguments. Counsel argued that the Notice to raise preliminary issues had named certain paragraphs that are extraneous and not connected to these proceedings. That Black's Law Dictionary defines extraneous as irrelevant or unrelated to the subject being dealt with, that is immaterial and beside the point and on this basis the said paragraphs ought to be expunged. It was counsel's further argument that this court lacked the jurisdiction to entertain this matter because according to the Limitation Act 1939 the plaintiff was obliged to have taken out this action within 6 years of the accrual of the action. That the plaintiff was declared redundant on the 12th June, 2015 and 6 years lapsed on the 14th June, 2021. Further that the plaintiffs reliance on Article 189 of the Constitution in his claim for pension was not tenable as the same provision was amended on the 5th January, 2016 and could not be applied retrospectively. R7 In opposing the application, the plaintiff placed reliance on his affidavit in opposition and supporting skeleton arguments and list of authorities and argued that he will have difficulties to present his case if the impugned paragraphs are expunged. Further that the constitutional provision is applicable to him at that date. 6.0 The decision of the Court I am indebted to counsel and the plaintiff for their arguments and submissions. The Court has noted that the defendant raised a defence of the matter being statute barred at the hearing of the matter which issue was not raised as a question in the preliminary issues. Additionally, the defendant is yet to file a memorandum of appearance and defence. In resolving these two pertinent issues the case of City Express Ltd Vs Southern Cross Ltd9 a High Court decision is persuasive as, Justice Imasiku at page 265 stated as follows: "It is clear from the Zambian decided cases that the issue ofl imitation period was considered in those cases as a point of law which can be raised and considered at any stage oft he proceedings. In some oft he cases, the limitation period was not pleaded, but the courts considered the objection based on the Statute ofL imitation as a point of Law and considered it on that basis. ........... It is clear to me therefore on the authorities before me that the defence of limitation may be raised even if not pleaded, but may not be raised at the end of trial as a second defence by a person losing a case on the merits. In short, I would agree with the defendant that I have jurisdiction to hear and determine the preliminary issue based on the Statute of Limitation even though it was not pleaded. The second point I have to consider is waiver. The plaintiff submits on the point of waiver that when the defendant entered a memorandum of appearance and defence without raising issues about the expiration of the limitation period, it elected to proceed to RB defend the action on the merits and as such waived its rights to raise the issue on the Statute of Limitation. In reply to the plaintiff's submission, the defendant has cited the case of Ndhlovu, and Another v Al Shams Building Materials Company Limited where the Supreme Court said: 'There can be no estoppel against a statute. A litigant can plead the benefit of a statute at any stage.' I agree with the submission by the def end ant that a litigant can call in aid the benefit of a statute at any stage. In my view there cannot be a waiver of a benefit conferred on a party by statute. I hold therefore that the defendant did not waiver the Statute ofL imitation." I equally adopt this position as outlined in the City Express case on the issue of statue barred being a point of law that can be raised at any stage of the proceedings and particularly before the trial has ended. Additionally, I adopt the position that there can be no estoppel against a statute and a litigant can plead the benefit of a statute at any stage. Section 2 (1) (a) of the Limitation ofA ctions Act 1939 provides as follows: "{l) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:- (a) actions founded on simple contract or on tort;" Counsel for the defendant argued that the plaintiff was declared redundant on th the 12th June, 2015 and 6 years lapsed on the 14 June, 2021. The record shows that this cause of action was commenced on the 1st December, 2021 which confirms that the 6 years' time frame in which this cause of action should have been commenced indeed lapsed in June 2021. In the case of Zambia Consolidated Copper Mines Ltd Vs Joseph David Chileshe10 the Supreme Court held that claims in a cause of action must be commenced within the time prescribed for the commencement of that cause of R9 action and also stated the impropriety of the same when a cause of action was statue barred. Being guided by these authorities, in the case before this court it is apparent that the cause of action is statute barred which means that this Court has no jurisdiction to deal with the same which renders the determination of the preliminary issues otiose. As such the entire cause of action is dismissed for being statute barred. Looking at the nature of the claim and the defendant not having filed pleadings, each party shall bear their own costs. Leave to appeal is granted. Dated the ............. .\3:'.~day of .......~ ~ 2 024 REPUBLIC OF ZAt )A ~ HIGH COURT OF ZAMBIA [ . 7 Ut . ~.,----;-TI R. CHIBBABB P.o.eoxs& RlO