African Banking Corporation Zambia Limited (T/A BANCABCa) v Yangts Jiang Enterprises Limited (In Receivership) and Ors (2014/HPC/0031) [2021] ZMHC 125 (15 February 2021)

IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL COURT DIVIS i- HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 2014/HPC/003 1 AFRICAN BANKING CORPORATION ZAM LIMITED (T/A BANCABC) PLAINTIFF AND YANGTS JIANG ENTERPRISES LIMITED (IN RECEIVERSHIP) XU JIAN XUE CHANG ZHI DAN DATONG CONSTRUCTION LIMITED 1ST DEFENDANT 2ND DEFENDANT 3RD DEFENDANT INTENDING 4TH DEFENDANT CORAM: The Hon. Lady Justice Dr. W. S. Mwenda in Chambers at Lusaka on the 15th day of February, 2021. For the Plaintiff Mr. L. Mwamba of Simeza Sangwa and Associates For the 1st to 3rd Defendants: N/A For the Intending 41h Defendant: Mr. J. Zimba of Makebi Zulu Advocates RULING Cases referred to: 1. Attorney General v. Aboubacar Tall and Zambia Airways Corporation Limited (1995/1997) Z. R. 54. 2. London Ngoma and Others v. LCM Company Limited, and another (1999)Z. R. 75. 3. Miles Emmanuel Sampa and Others v. Inonge Wina (Sued in her capacity as National Chairperson for Patriotic Front) and Another, S. C. Z. Appeal No. 195 of 2014. R2 4. Stanbic Bank Zambia Limited v. Mico quip Zambia Limited, Selected Judgment No. 22 of 2018. 5. Hope Foundation v. Linyati, SCZ/8/54/2013. 6. Abel Mulenga and Others v. Mabvuto Adan Avuta Chikumbi and Others, S. C. Z. Judgment No. 8 of 2006. Legislation referred to: 1. Order 14, rule (5)1 of the High Court Rules, Chapter 27 of the Laws of Zambia (High Court Rules). 2. Order 3, rule 2 of the High Court Rules. 1. INTRODUCTION 1.1 There are two applications being considered in this ruling, namely an application for stay of execution of Charging Order and the Intending 4th Defendant's application for non-joinder. 1.2 The two applications were heard on the same day and as the outcome of the former application is dependent on the outcome of the latter application, I will proceed with addressing the latter application first and then move on to the former. 1.3 For the sake of order, I shall refer to the latter application as the First Application, and the former application as the Second Application. R3 2. THE FIRST APPLICATION The Intending Support 4th Defendant's Evidence and Arguments in 2.1 The First Application, being the Intending 4th Defendant's application for non-joinder, was made on 4th July, 2019, by way of Summons pursuant to Order 14, rule 5 (1) of the High Court Rules, Chapter 27 of the Laws of Zambia (hereinafter referred to as the "High Court Rules"). 2.2 The First Application was accompanied by an affidavit (hereinafter referred to as the "First Affidavit in Support"), of even date, and sworn by one Yu Wang Ping, the Managing Director of the Intending 4t h Defendant. It was his testimony h December, 2018, that that it came to his attention on 28 there was a Charging Order Absolute issued by this Court and that thereafter, he was informed that the Plaintiff's advocates had proceeded to evict tenants that the Intending 4th Defendant had put in its properties. 2.3 The deponent deposed that the properties set out in the schedules to the Charging Order, namely Subdivision B of Subdivision 2 of Subdivision 242 of Subdivision A of Farm 609 and Stand No. 1521 Cheistone, were in 2017 conveyed to the Intending 4th Defendant, and as such, the said 4th Defendant is the legal owner of said Intending properties. R4 2.4 It was also the deponent's testimony that the property set out in the schedule as F/2883/A is still the subject of litigation and the said matter has a scheduled date of hearing of an application to dismiss the matter for irregularity and abuse of court process. Further, that the said property was also the subject of litigation before the Court of Appeal and judgment to that end was rendered. 2.5 The deponent averred that the Intending 4th Defendant is likely to be affected by the execution now sought to be carried out by the Plaintiff and hence, desires to be joined to the proceedings herein. 2.6 To augment the First Affidavit in Support, Counsel for the Intending 4th Defendant submitted that the Intending 4th Defendant has shown sufficient interest in these proceedings and hence tenable to be joined to the proceedings herein. That, this Court has the authority to join the Intending 4th Defendant to the proceedings as it is necessary to ensure that the matters in the cause may be effectually and completely determined and adjudicated upon, to put an end to any further litigation. In support of this contention, Counsel relied on Order 14, rule 5 of the High Court Rules and the cases of Attorney General v. Aboubacar Tall and Zambia Airways Corporation Limited', London Ngoma and Others u. LCM Company Limited, and R5 Another2, and Miles Emmanuel Sampa and Others u. Inonge Wina (Sued in her capacity as National Chairperson for Patriotic Front) and Another3. 2.7 Counsel for the Intending 41h Defendant, thus, prayed that this Court exercises its discretion and grant the First Application. The Plaintiff's Evidence and Arguments in Opposition 2.8 The First Application is opposed and to this end, the Plaintiff flied into court, an affidavit (hereinafter referred to as the "First Affidavit in Opposition"), sworn by one Mutule Museba, the Country Head - Legal, for the Plaintiff Bank. 2.9 It was Mr. Museba's testimony that in 2014, judgment was entered in favour of the Plaintiff, by consent of the parties, for the payment of the sum of K6,821,329.16, less any amounts paid plus interest. That, the Defendants have to date failed to pay the judgment sum in full, which prompted the Plaintiff to apply for a Charging Order and that on 27th December, 2016, the Court granted a Charging Order Absolute in favour of the Plaintiff, charging the following properties: (i) Subdivision B of Subdivision 2 of Subdivision 242 of Subdivision A of Farm 609, Lusaka; (ii) Stand 1521 Cheistone, and R6 (iii) Subdivision A of Farm 2883. 2.10 In the Skeleton Arguments augmenting the First Affidavit in Opposition, Counsel for the Plaintiff submitted that the First Application herein is misconceived for having been brought after judgment has already been enforced. 2.11 Citing the case of Stanbic Bank Zambia Limited u. Micoquip Zambia Limited4, Counsel for the Plaintiff submitted that an application for joinder cannot be brought after judgment has already been entered and when there is no pending appeal or an application for review. That, the court, in such instances, is functus officio and cannot entertain an application for joinder, as applications for joinder under Order 14, rule 5 of the High Court Rules must be brought during the pendency of the proceedings, before judgment is entered or delivered. 2.12 Counsel for the Plaintiff, thus, contended that in casu, judgment was entered in favour of the Plaintiff in 2014, by consent of the parties and there is no contest with respect to the substantive judgment as there is no appeal or an application to assail the said judgment. That, the proceedings before this Court are merely for enforcement of the judgment following the Charging Order Absolute. Further, that there is equally no application for review and R7 the First Application herein has come too late in the day and is incompetent. 2.13 Finally, Counsel for the Plaintiff submitted that this Court became functus officio when the judgment was entered in favour of the Plaintiff by consent of the parties and after granting the Charging Order Absolute. That, the Court had performed its function and its role had come to an end at that point. 2.14 Counsel for the Plaintiff, thus, prayed that the First Application herein be dismissed with costs. The Intending Plaintiff's Response 4thi Defendant's Arguments in Reply and 2.15 At the hearing of the First Application herein, Counsel for the Intending 41h Defendant submitted, in reply, that contrary to the argument by Counsel for the Plaintiff that a party cannot be joined to a matter after final judgment, the First Affidavit in Opposition reveals that the Plaintiff readily admits that this matter was concluded by consent, and in that regard, the Intending 4th Defendant has referred to the case of Miles Emmanuel Sampa and Others v. Inonge Wina (Sued in her capacity as National Chairperson for Patriotic Front) and Another3, which Counsel argued is on all fours with the case at hand. That, in line with the dissenting R8 views in the Miles Emmanuel Sampa case, it was Counsel's submission that the Intending 4th Defendant has disclosed sufficient material revealing its interest in this matter, and, as such, it would be unjust not to join it as a party to this matter. 2.16 In response, Counsel for the Plaintiff stated that the Intending 4th Defendant had cited the Supreme Court case of Miles Emmanuel Sampa, decided in 2014, while the Plaintiff had cited the Stanbic Bank case, decided in 2018 and also a Supreme Court decision, on the subject of joinder. That, it is trite law that where there are two Supreme Court decisions on the same point, the latest decision must be followed. 2.17 Further, Counsel for the Plaintiff invited the Court to note that Certificates of Title to the properties charged were obtained in 2017, way after judgment had been entered 2.18 As their final submission at the hearing, Counsel for the Intending 4th Defendant argued that the two Supreme Court decisions can be distinguished in that the Miles Emmanuel Sampa case is on all fours with the proceedings herein and that a non-party likely to be affected by a decision of the court can only challenge such a decision if they are made a party, so that they can be heard. That, it is the Intending 4th R9 Defendant's position that they should not be condemned unheard as they have an interest in this matter. 3. THE LAW, ANALYSIS AND COURT'S FINDINGS IN THE FIRST APPLICATION 3.1 I have carefully considered the parties' affidavits on record; the authorities cited and the arguments advanced in respect of the parties' respective positions. 3.2 The First Application herein was made pursuant to Order 14, rule 5 (1) of the High Court Rules, which provides as follows: "If it shall appear to the Court or a Judge, at or before the hearing of a suit, that all the persons who may be entitled to, or claim some share or interest in, the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the Court or a Judge may adjourn the hearing of the suit to afuture day, to be fixed by the Court or a Judge, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be. In such case, the Court shall issue a notice to such persons, which shall be served in the manner provided by the rules for the service of a writ of summons, or in such other manner as the Court or a Judge thinks fit to direct; and, on proof of the due service of such notice, the person so served, whether he shall have appeared or not, shall be bound by all proceedings in the cause: Provided that a person so served, and failing to appear within the time limited by the notice for his appearance, may, at any time before judgment in the suit, apply to the Court or a Judge for leave to appear, and such leave may be RIO given upon such terms (if any) as the Court or a Judge shall think fit. The Court or a Judge upon the application of any party may give directions for service upon a new party of copies of any writ of summons or other document or process and also may give such other directions in relation to the adding of such new party as justice and the circumstances of the case may require." 3.3 It is not in dispute that judgment in this matter was entered by consent, on 6th October, 2014 and that during the subsistence of this matter, before the said judgment was entered, the Intending 4th Defendant was not a party to the proceedings. Further, the record shows that following the said judgment, a Charging Order Absolute was granted on 27th December, 2016, with the following assets being charged with the payment of the sum of K3,002,474.39: (i) Subdivision B of Subdivision 2 of Subdivision 242 of Subdivision A of Farm 609, Lusaka; (ii) Stand 1521 Chelstone, and (iii) Subdivision A of Farm 2883. 3.4 The record also shows that a Charging Order Absolute Imposing Charge on Asset charging the above assets was granted on 10th August, 2018. 3.5 The Intending 4th Defendant has, in the First Affidavit in Support, produced a copy of a Title Deed to Subdivision B of Subdivision 2 of Subdivision 242 of Subdivision A of Farm 609, Lusaka, issued to it on 13th June, 2017, in the name of Ru the Intending 41h Defendant; a copy of the Title Deed to Stand 1521, Cheistone, initially issued to one Samson Lungu, on 26th September, 2006 and later issued to the Intending 4th Defendant, also on 13th June, 2017. It is, however, not clear from the record, in whose name Subdivision A of Farm 2883 is. 3.6 The dispute, in a nutshell, is that the Intending 4th Defendant is contending that it should be joined to these proceedings as it has shown sufficient interest in these proceedings by its evidence in the First Affidavit in Support, while the Plaintiff, in opposition, is contending that the matter has already proceeded beyond judgment and thus, the application by the Intending 4th Defendant has come too late in the day, especially because there is no pending appeal against the judgment or an application for review of the judgment since rendered in this matter. Thus, this Court is functus officio in this regard. 3.7 In support of its contention, the Intending 4th Defendant has placed heavy reliance on the case of Miles Emmanuel Sampa and Others v. Inonge Wina (Sued in her capacity as National Chairperson for Patriotic Front) and Another3 while the Plaintiff has placed heavy reliance on the case of Stanbic Bank Zambia Limited v. Mico quip Zambia Limited4. Both cases are Supreme Court decisions, except that the latter was decided in 2018, while the former was decided in 2014. R12 Counsel for the Plaintiff, thus, submitted that the latter case supersedes the former and is, therefore, the binding authority of the two. In reaction to this, Counsel for the Intending 4th Defendant argued that the two Supreme Court decisions can be distinguished in that the former case is on all fours with the proceedings herein and that a non-party likely to be affected by a decision of the court can only challenge such a decision if they are made a party, so that they can be heard. 3.8 From the foregoing, the issue begging determination, in my view, is whether the Intending 4th Defendant herein has advanced cogent grounds to warrant the grant of an order for joinder. In determining so, it is imperative that there is a thorough examination of the two cases above, and establishing how they apply in casu and their effect, as well as looking at other Supreme Court decisions. 3.9 The essence of the case of Miles Emmanuel Sampa and Others v. Inonge Wina (Sued in her capacity as National Chairperson for Patriotic Front) and Another3, as relates to the issue of joinder, was stated as follows: "The first issue as we see it is whether the appellants can be joined as interveners after a consent judgment has been signed by the parties to it. In other words, can the appellants join the proceedings after a consent judgment has been concluded between the respondents? The second issue is whether the appellants should have been heard by R13 the learned trial judge after they had filed an inter partes summons to join as interveners. The issue of joinder has been the subject of considerable litigation over the years. In the case of The Attorney General v. Tall and Zambia Airways Corporation Limited we held as 7: follows at page 57.- "In "In our view, without prejudicing the outcome of the trial court's judgment, but going by the documentary and oral evidence on record, the joining of the Attorney General in these proceedings would be necessary to ensure that the matters in the cause may be effectually and completely determined and adjudicated upon to put an end to any further litigation. Both our Order 14 and the English Order 15 as well as s 13 of Cap 50 are intended to avoid a multiplicity of actions. Although the learned trial court relied on a wrong provision of the law in joining the Attorney General to these proceedings, the court had still an inherent jurisdiction to make the order in the interest ofjustice. In London Ngoma and others v. LCM Company and another, we held that in terms of rule 67 of the Supreme Court rules and the decided case of the Attorney General v. Tall and another, this Court has inherent jurisdiction to join a party to the action after judgment has been entered. In the London Ngoma judgment, we stated that the parties could be joined to a consent judgment to which they were not parties and were not aware of a hearing. The judgment delivered by Shanks, J in the case of Development Finance Corporation (DFC) v. Honorio Duran and others concurs with the approach in the London Ngoma case. In Barclays Bank Zambia Plc. v. ERZ Holdings Limited we stated as follows at page 34 of the judgment: we agree with counsel for the respondents that the only legal option which was open to the appellant bank was to have invoked the provisions of Order 67 and in line with the R14 London Ngoma and others v. LCM Limited case, to have applied to join the proceedings before Kakusa J even after the consent judgment had been entered but before the execution and registration of the consent judgment." It is clear from the foregoing authorities that a person can be joined to the proceedings notwithstanding that there is a consent judgment provided that he satisfies the conditions which we set out in the London Ngoma case, namely that; he must have locus standi, sufficient interest and must not have been aware of the proceedings. Therefore, the learned Judge in the court below was wrong to hold that the appellants' application was misconceived. On the basis of all the above mentioned, we find that the first ground of appeal has merit and we allow it." (Emphasis mine) 3 10 The kernel of the Stanbic Bank Zambia Limited u. Micoquip Zambia Limited4 case, on the other hand, was expressed as follows: "The first ground of appeal focuses on Order XIV Rule 5 (1) of the High Court Rules Cap 27 and attacks the lower courts finding that there was a need for a joinder because Order XIV Rule 5(1) only allows for a joinder "at or before the hearing of a suit" and not nine months after judgment as happened in the matter. In addition to that, there was no appeal or an application for review by any of the parties. The appellant has relied on the Tall case which seems to suggest that in a proper case a party can be joined before judgment has been delivered by invoking Order 14 Rule 5 of the High Court Rules. The appellant has also gone to great lengths to explain the London Ngoma case and has even suggested that it may have been wrongly decided. We take the view that the London Ngoma case was correctly decided given its circumstances and in terms of Rule 67 (1) of the R15 Supreme Court Rules Cap 25 which provides for joinder when an appeal is called for hearing. We are also of the view that the London Ngoma case was dealing with a matter on appeal while in the current appeal there was no appeal or review after the judgment. There is therefore considerable force in the appellant's argument that the process for joinder should really have been set in motion at or before the hearing of the suit. In other words, the respondent should have applied earlier to join the appellant so as to enable the appellant to defend itself during the proceedings. At any rate, the application should have been made before judgment was delivered as was decided in the Tall case. we have with this argument by the The difficulty respondent's argument in relation to the appellant's first ground of appeal is that an action usually terminates with the deliveru of the judgment and enforcement of the judgment unless, of course, there is an appeal or an application for review none of which happened in the present case. It cannot therefore be possibly argued that an action should be open ended as litigants are expected to be vigilant in asserting their rights. The other difficulty we have is that the reference to the ruling of a single Judge of this court is not entirely correct... We therefore agree with the appellant that there is merit in the first ground of appeal that the application for joinder was incompetent because it was made long after judgment had been delivered between the respondent and Jes and in any event there was no appeal as Jes had failed to meet the condition for the appeal nor was there any application for review..." (Emphasis mine) 3.11 It has been contended by Counsel for the Intending 4th Defendant that the First Application herein, is on all fours R16 with the Miles Emmanuel Sampa case. That, in line with the dissenting views in the said case, the Intending 4th Defendant has disclosed sufficient material revealing its interest in this matter and as such, it would be unjust not to join it as a party to this matter. I would like at this point, to dispel the contention by Counsel for the Intending 4th Defendant that the Application herein is on all fours with the Sampa case as regards the conclusion of either matter by consent order/judgment. Both consent orders in the two cases, in my view, were arrived at on the basis of the substance of the cases. In other words, the consent orders only covered issues already before court. In casu, however, the issues raised by the Intending 4th Defendant, that it is the owner of the properties charged in the Charging Order Absolute, were not part of the issues that informed the consent judgment. The issues, now advanced by the Intending 4th Defendant, only arose long after the consent judgment and at the point of execution. In this regard, therefore, it is not true that the First Application herein is on all fours with the Sampa case. 3.12 What we have in casu, therefore, is that the Intending 4th Defendant is seeking to be joined to this matter after it has been concluded and at the point of execution. 3.13 To begin with, the First Application herein was made pursuant to Order 14, rule 5 (1) of the High Court Rules, R17 which has been reproduced under paragraph 3.2 above. The said Order 14 has been the subject of interpretation in many instances by the Supreme Court, some of which, in my view, need to be reconciled so as to give a definite position. For instance, in the case of Attorney General v. Aboubacar Tall and Zambia Airways Corporation Limited', the Supreme Court had the following to say, about Order 14, rule 5 (1) of Chapter 50 of the Laws of Zambia (the old High Court Act), which reads exactly as Order 14, rule 5 (1) of the current Act: 'We have carefully considered the submissions by both learned counsel and we have examined the provisions of order 14. In our view, a true construction of the words "at or before the hearing of a suit' as contained in our order 14 of Cap. 50 mean or must be interpreted to mean before the delivery of a judgment in a suit. This, to us, appears to be the only reasonable interpretation of that phrase in the order because the delivery of judgment is a hearing of and a process of a suit. It follows, therefore, that in a proper case a court can join a party to the proceedings when both the plaintiff and the defendant have closed their cases and before judgment has been delivered, by invoking order 14, rule 5." 3.14 In the case of Hope Foundation v. Linyati5, on the other hand, the Supreme Court stated as follows, in respect of Order 14, rule 5 of the High Court Rules: "Joinder of a party to an action or cause, where it can be justified, can be done at any stage of the proceedings and may be done upon application by a party to the litigation or R18 a non-party thereto, intending to be joined. Moreover, joinder can be ordered at any time even after judgment has been passed in an action. The case of London Ngoma and Others v. LCM Company Limited remains good authority for this position." 3.15 As regards the justification for a joinder, the Supreme Court stated, in the case of Abel Mulenga and Others v. Mabvuto Adan Avuta Chikumbi and Others6, that: "In order for the appellants to be joined as parties to this action, the appellants ought to have shown that they have an interest in the subject matter of the action... the mere fact that the appellants may be affected by the decision of the court below does not clothe them with sufficient interest or locus standi entitling them to be joined to the dispute." 3.16 In addition to the cases cited above, there are the two, herein relied upon by the Intending 4th Defendant and the Plaintiff, namely: (i) the Miles Sampa case in which it was held that a person can be joined to the proceedings notwithstanding that there is a consent judgment provided he satisfies the conditions in London Ngoma case, namely; he must have locus standi, sufficient interest and must not have been aware of the proceedings; and (ii) the Stanbic Bank case in which it was held that the application for joinder was incompetent because it was R19 made long after judgment had been delivered between the parties and in any event, there was no appeal or application for review. 3.17 All the authorities cited above are Supreme Court decisions bearing equal force, despite seemingly prescribing several and somewhat contradictory positions. However, as was pointed out by Counsel for the Plaintiff, where two or more Supreme Court decisions stand in conflict to each other, it is trite that the latest in time carries the day. In this case, the latest Supreme Court decision on the issue of joinder after judgment has been rendered is the case of Stanbic Bank Zambia Limited v. Mico quip Zambia Limited4, and this Court is bound by the same. 3.18 As earlier stated, there is no dispute that the proceedings herein had been concluded by way of consent judgment sometime in 2014 and the Plaintiff was, at the point of the First Application herein, in the process of executing judgment against the Defendants. Further, I have perused the record and I am satisfied that there is no pending appeal against the judgment in this matter or any application for review of the same, or indeed any other application challenging the consent judgment that concluded the proceedings herein. I am guided, in this regard, by the Supreme Court's statement in the Stanbic Bank case that an action usually terminates with the R20 delivery of the judgment and enforcement of the judgment unless, of course, there is an appeal or an application for review, none of which happened in the present case. 3.19 I agree with Counsel for the Plaintiff that the First Application herein has come too late in the day and that matters should have finality to them. The matter herein is way beyond the point of judgment, with execution already in progress. 4. THE SECOND APPLICATION 4.1 The Second Application herein is an application for Stay of Execution of Charging Order pending the First Application herein and was made pursuant to Order 3, rule 2 of the High Court Rules. 4.2 As indicated earlier, the success or failure of the Second Application is dependent on the success or failure of the First Application, which said application has been comprehensively addressed above. Therefore, having found as above, it would be futile to get into the details of the Second Application. 5. CONCLUSION AND ORDERS 5.1 For the reasons aforesaid, therefore, the First Application herein fails and is accordingly dismissed. The First R21 Application having failed, it follows that the Second Application should also fail. 5.2 Costs of the Applications herein are granted to the Plaintiff to be agreed by the parties or taxed in default thereof. Leave to appeal is denied. Dated at Lusaka this 15" day of February, 2021. W. SITHOLE-MWENDA (DR.) HIGH COURT JUDGE