Access Bank Limited v Lufeyo Zulu & 13 Ors (Appeal No. 177 of 2022) [2023] ZMCA 365 (22 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT DOLA ( Civil Jurisdiction) Appeal o. 177 of 2022 BETWEEN: ACCESS BANK LIMITED AND LUFEYO ZULU & 13 OTHERS Coram: Mchenga DJP, Banda-Bobo and Sharpe-Phiri, JJA on 15th and 22nd November 2023 For the Appellant: Mr. A. Simunyola of Messrs Eric Silwamba, Jalasi & Linyama For the Respondent: No appearance JUDGMENT SHARPE-PHIRI, JA, delivered the judgment of the Court Legislation refen-ed to: 1. The Court of Appeal Rules, Statutory Instrument No. 65 o/016 2. The Court of Appeal Act No. 7 of 2016 Cases refen-ed to: 1. Susan Mwale Harman and Bank of Zambia Appeal No. 185 of 2015 2. Derrick Chitala (Secretary of Zambia Democratic Congress) v Attorney General (1995-1 997) Z. R 9 3. Trade Kings Limited v Unilever PLC Cheesebrough Ponds (Zambia) Limited, Lever Brothers (Private) Limited and Lever Brothers (Zambia) Limited (2000) Z. R. 16 J] 1. Introduction 1.1 This appeal originates from a Ruling of Bah-Matandala, J of the Lusaka High Court delivered on 12 May 2022. By that Ruling the learned trial Judge considered three applications made by the appellant, Access Bank Limited (2nd Defendant in Court below). 2. Back2round to the matter 2.1 The brief background of the matter in the lower Court is that Lufeyo Zulu and 13 Others (the respondents herein) commenced proceedings in the High Court on 7 May 20 18 against Jonathan Sinyinza and Access Bank Limited as the l st and 2nd Defendants therein. They sought the fo llowing reliefs namely: (i) An Order for specific performance of the plaintiff's contracts with the JS' defendant relating to Farm L/5656/M. (ii) An Order that the Mortgage entered on the land register and of the Lands and Deeds Registry between the 1st and 2nd defendants in respect of Farm 5656/M be cancelled and the title to the said property be registered in the names of the plaintiffs according to their respective subdivisions. J2 (iii) An order that the JS1 defendant and or his successors in title are to execute all the documents necessa,y to effect the terms of paragraph (ii) above. (iv) Damages for fraud by the 151 defendant. (v) Damages for the inconvenience suffered to be assessed by the Deputy Registrar. (vi) Punitive damages on account of the 1st defendant's conduct. (vii) Costs of and incidental to these proceedings. (viii) Any other relief the Court may deem just and fit in the circumstances. 2.2 The pt defendant in the Court below, Jonathan Sinyinza filed his defence on 24 May 2018 contending that the respondents bought the proposed subdivision of Farm L/5656/M, whereas he had mortgaged the remaining extent of Farm L/5656/M. He further contended that the respondents had been negligent by not obtaining title to their properties and were not entitled to the reliefs sought. 2.3 In reply, the respondents argued that the contracts of sale executed between them expressly stated that they had purchased subdivisions of Farm L/5656/M and not proposed subdivisions and accused the I st respondent of not honouring what he had contracted. J3 2.4 The appellant, as 2nd defendant fi led a defence on 17 June 20 19 contending that subdivisions of Farm L/5656/M were pledged to it vide facility letters dated 2 February 2009, 2 June 2009, and 21 December 2009 and that the title was free of any encumbrances and remained unencumbered to date. 2.6 It also averred that the mortgage property was duly made as the fu ll process of perfection of security was done and registered at Lands and Deeds Registry. That the subject property was registered in the name of Jonathan Sinyinza and had no caveats or encumbrances against it. 2. 7 Several applications were brought before the Cami. 3. Interlocutory applications in lower Court subject of this appeal 3.1 The appellant filed a conditional memorandum of appearance on 23 May 201 8 pending an application to set aside the Originating process for itTegularity on 11 June 20 18. The appellant also filed two other applications namely: fo r an Order to comply with provisions of the High Court Amendment Rules pursuant to Order XIX Rule 2 of the High J4 Court Rules as amended under Statutory Instrument No. 58 of 2020 and a notice of intention to raise a preliminary issue on 28 April 202 1. 4. Decision of the trial Court 4.1 The trial Judge Bah-Matandala delivered a Ruling (pages 11 to 29 of the ROA), the subject of this appeal on 12 May 2022. In the introduction of the Ruling the Judge states as follows: 'This is a ruling relating to three applications by the 2nd Defendant. The first one is for an Order to set aside Originating process for irregularity pursuant to Order VII Rule 1 of the fligh Court Rules, Cap 27 ... Th e second application is/or an order to comply with the provisions of the High Court Amendment Rules pursuant to Order XIX Rufe 2 of the High Court Rules as amended by High Court (Amendment) Rules Statutory Instrument No. 58 o/2020. The third issue relates to the 211d Defendant 's notice of intention to raise a preliniinary issue filed on 28th April, 2021 ... ' 4.2 A review of the latter part of the said Ruling reveals that at paragraph 2.4 of the Ruling, the trial Judge declined the appellant's application to set ]5 aside the w1i t of summons for itTegularity and instead directed the respondents to rectify originating process and file an amended writ of summons within 14 days. 4.3 Regarding the appellant's application for an order to comply with the provisions of the High Couti Amendment Rules pursuant to Order XIX Rule 2 of the High Court Rules as amended by High Court (Amendment) Rules Statutory Instrument No. 58 of 2020, the trial Judge ruled under paragraph 2.8 of her Ruling that the said Statutory Instrument was not applicable to the case before her. This was because the matter had been brought before the effective date of commencement of the said Statutory Instrument, hence it was not applicable to this action. 4.4 In relation to the third application brought by way of notice of intention to raise preliminary issue, under paragraphs 3.0 and 3. 1 of her Ruling, the trial Court Judge ruled as follows: '3. 0 I wish to state that this particular application is not on record and the Plaintiff was not present at the hearing to affirm this position, and as such there is no opposition filed against this application. For the foregoing reasons, this J6 application ought to be made properly and be heard in order for this Court to decide on it. 3. 1 Therefore, in summation all the applications herein failed for the reasons herein before stated. ' 4.4 Essentially, the trial court considered 2 applications namely: the application to set aside the originating process for irregularity and the second for an order to comply with the provisions of the new High Court amendment Rules under Statutory Instrument No. 58 of 2020. 5. Appellant's grounds of appeal 5.1 Being dissatisfied with the above Ruling of the learned Judge in the Court below of 12 May 2022, the appellants filed a Notice and Memorandum of Appeal on 9 June 2022 advancing 3 grounds of appeal: (i) That the learned Puisne Judge erred in law and fact when she rendered a Ruling on two (2) applications (application to set aside Originating Process for irregularity and application to comply with the provisions of the new High Court Act) which had already been determined by the late Honourable Mr. Justice M. Chitabo, S. C rendering them, res judicata. J7 (ii) That the learned Puisne Judge erred in law and fact when she did not consider the third application (Notice of intention to raise prelimina,y issues) which was the only application before her pending determination. (iii) That the learned Puisne Judge erred in law and fact when she held that a decision could not be determined on the Notice to raise preliminary issues as this particular application was not on the Court's record and the Plaintiffs (now Respondent) had not filed an opposition when in fact the Notice of intention to raise preliminary issue was filed on 28 day of April 2021 and the Plaintiffs (now Respondent) subsequently filed their list of authorities and skeleton arguments in opposition to the 2 nd Defendant's (now Appellant's) arguments in support of notice of intention to raise preliminary issues on the 13 day of September 2021. 6. Arguments of the parties 6. 1 Counsel for the appellant filed heads of argument on 28 Augu st 2023 and the respondent did not file any arguments opposing the appeal. The appellant's argument w ill not be reproduced hereunder. J8 7. Hearing of the Appeal 7.1 The appeal was heard on 15 November 2023. Mr. Simunyola who was on record for the appellant informed Court that the appeal is uncontested. Counsel also informed Court that the respondents had been duly served an affidavit of service was on record. There was no attendance on behalf of the respondents. 8. Decision of this Court 8.1 We have carefull y considered the evidence on the Record of Appeal, the Ruling sought to be impugned, and the arguments of the parties. There are three grounds of appeal for our consideration. The first ground of appeal contends that Judge Bah-Matandala eITed in rendering a Ruling on two applications which were already determined by Judge M. Chitabo. That the Judge considered two applications namely to set aside Originating process for iITegul arity and an application seeking an Order to comply with provisions of the new High Court Act. 8.2 We observe that this matter was initially allocated to o ur learned late brother Hon. Chitabo . J. as Hi gh Court Judge then before hi s elevation to J9 the Constitutional Court. This case was subsequently reallocated to the Hon. Bah-Matandala who rendered the said ruling, which is the subject of this appeal. We are of the view that to resolve the contentions raised in this appeal, we will be required to review the history of proceedings in the lower Couit as contained in the Record of Appeal before us. 8.3 A review of the transcript of proceedings in the Record of Appeal (pages 229 to 253) reveals that this matter was called for hearing before Chitabo, J on 6 May 2019. Counsel notified the trial Judge that the matter was pending hearing of the application to set aside the Originating Summons for irregularity. The Judge directed that the case be referred to Hon. Chisha to assign a Deputy Registrar to hear the application and adjourned the case for a status conference on 26 June 2019. 8.4 On 21 May 2019, the matter came before Hon. Chulu, only the respondent's counsel was present. The Court noted that the matter was being called for hearing of the appellant's application to set aside Originating process, but the appellant's Counsel was not in attendance. The Court rescheduled the matter. JI O 8.5 The case was brought up before Hon. Chulu on 27 May 2019, the appellant's and respondent's counsel were both in attendance. The Court heard both parties on the appellant's application to set aside originating process for irregularity. The Court held as follows: 'Upon hearing the application by the learned counsel for the 2nd defendant to set aside the originating process for irregularity and upon reading affidavit filed herein: and having heard submission opposing the application and the affidavit filed herein. I have noted the basis.for objection, but to writ of summons was duly endorsed with the plaintiff's physical address as well as electronic address and paragraph 4 of the affidavit in opposition states that the address on the writ relates to all the plaintiffs. I believe this is a group action and it would if the Court set aside the originating process. The application to set aside is misplaced and is hereby dismissed with costs. ' 8.6 It is clear from the foregoing that the application to set aside the Originating process for irregularity filed by the appellant herein in the lower Court on 11 June 2018 was heard and determined by Hon. Chulu on 27 May 2019. Therefore, the allegation by the appellant that the J 11 learned trial Judge Bah-Matandala erred when she proceeded to hear the same application and deliver a ruling on the issue is accurate. Although, it was the learned Deputy Registrar that dete1mined this application and not the late Judge Chitabo. The issue relating to the irregularity of the originating process raised by the appellant was heard and determined by the learned Deputy Registrar on 2 7 May 2019. The trial Judge ought not to have adjudicated upon the same issue in her Ruling of 12 May 2022. 8.7 The second part of the first ground of appeal contends that Judge Bah Matandala dealt with a second application for an Order beseeching the respondent to comply with the new High Court Amendment Rules. A review of the transcript of proceedings particularly at pages 244 to 245 of the ROA reveals that on 26 October 2020, our late brother, Judge Chitabo dealt with the issue raised by the appellant. The Judge determined that: 'I am indebted [to counsel} on the high Level of Advocate [advocacy] demonstrated by the learned Attorney for the Defendant therefore in respect of their rightful positions in assisting the Court in complying with Statutory Instrument No. 58 of 2020. This is demonstrative of deserving Advocate [advocacy] and offices [officers] of the Court. This is how it shall be. I will J1 2 grant, the sought adjournment. The matter comes for scheduling conference on I 8/1 I II Oat 08:45 hours. I will make no order as to today's costs. Learned Counsel for the 2nd Defendant to ensure that the written order is served upon in attendance in chambers is uplifted served on the Plaintiff's Attorneys and file proof of service to that effect. ' 8.8 From the aforesaid history, it is evident that the trial Court presided over by Judge Bah-Matandala erred when she determined applications that had already been determined by the learned Deputy Registrar and the learned late Judge Chitabo. For this reason, the first ground of appeal must succeed. 8.9 We will address ground two and ground three together as they are related to the same issue. The appellant's contention in the second ground of appeal is that the trial Judge erred by not considering the only application that was before her for consideration. Counsel for the appellant argued that a notice of intention to raise preliminary issues was filed on 28 April 2021 and therefore the Judge erred when she stated that the application was not before her. J1 3 8.10 A review of the record, particularly pages 206 to 223 of the Record of Appeal shows that the appellant had filed a notice of intention to raise preliminary issue with supporting affidavit on 28 April 2021. At the time that the matter came up before the trial Judge on 6 August 2021, the application to raise a preliminary had long been filed into the Court. 8.11 The issue raised in the 2 grounds of appeal can equally be determined from a review of the ruling of the lower Court. The trial court determined, as we have shown under paragraph 4.4 above that the particular application in contention was not on record before her, that the respondents were not before her Court to affirm the application and that there was equally no opposition from the respondents, hence the application had to be made properly before her for her to proceed to detennine it. 8 .12 Essentially, the Judge did not consider the preliminary issue when determining the applications in her Ruling of 12 May 2022, as she stated that the actual notice to raise preliminary issue was not before her and neither was the appellant's counsel. The Judge directed that the application ought to be made properly before her. This was despite the appellant's counsel , Ms. Yundi of Messrs Eric Silwamba Jalasi and Linyama having appeared before Judge Bah-Matandala on two previous occasions, namely 6 August 2021 and 6 December 2021 (page 249 to 252 of ROA) and who informed the Comi of the status of the matter. During those appearances, counsel for the appellant clearly highlighted to the Court the application that was pending consideration. 8.13 We are cognizant of the fact that it is not uncommon for documents to be misplaced within the Courts, due to administrative lapses and/or human error. However, we are of the view that this anomaly of the requisite application not being on the Court record, was one that could easily have been corrected by the applicant in liaison with the Clerk of Court and ensuring the requisite documents in relation to the application were placed on the record for the Court's consideration. 8.14 Also, bad the said application i.e., the Notice to raise issues (page 206-27 ROA) not been on the Court record, it was prudent for the Judge to have brought this fact to counsel's attention at an earlier time on counsel ' s 2 prior appearances, rather than wait to indicate this in her Ruling of I 2 May 2022. Jl 5 8.15 We further observe, that notwithstanding the fact that Judge Bab Matandala had directed that the Notice to raise preliminary issue be brought properly before her, in her concluding remarks of her Ruling, paragraph under 3. l thereof, the Judge ordered that ' all the applications herein have failed for reasons herein before stated'. The Judge concluded by dismissing all three applications before her despite having found that the third application was not before her and directing the parties to ensure that it is properly before her. 9. Conclusion 9.1 For the reasons given above, we are of the view that the two grounds of appeal have merit. Having determined as we have above, we set aside the decision of the learned Judge Bah-Matandala of 12 May 2022. 9.2 Given that the first two applications were already determined by the late Chitabo, J and Hon. Chulu, we direct that the appellant is at liberty to pursue its notice to raise preliminary issue as per application of 28 April 2021 before Judge Bah-Matandala. J16 9.3 Although the grounds of appeal are successful, we note that the respondent did not oppose the appeal and will thus not be condemned to the costs of this appeal. The appellant will bear its own costs. DEP A. M. Banda-Bobo COURT OF APPEAL JUDGE ~ arpe-rf i::i COURT OF APPEAL JUDGE Jl7