Chiseke v Seventh Day Adventist Association (HP 1174 of 2004) [2015] ZMHC 140 (8 October 2015)

Rl 2004{HP{1l74 IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY I I HOLDEN AT LUSAKA BETWEEN: (CIVIL JURIlDICTION) r '~''''''::'C'-'-:<l' J )1 /.~-• AMANDO CHISEKE AND APPLICANT SEVENTH DAY ADVENTIST ASSOCIATION IN ZAMBIA REGISTERED TRUSTEES DEFENDANT Before The Honourable Mrs. Justice P. C. M. Ngulube in Chambers. I I I I For the Applicant: For the Defendant: No Appearance Me, Ng6nga, Messrs I. C. Ng6nga and Company For the Intended 2nd Defendant: Mrs E. M. Bupe, Legal Officer, Lusaka City Council. RULING CASES REFERRED TO: I 1. Abel MJlenga and Others vs. Chikumbi and Others (2006) ZR 33 2. Gourie~ vs, Union of Post Office Workers (1982) AC 617 at 629 and 631 I This is the Defendant's application to join Lusaka City Council as a party to tAe action, pursuant to Otcter XIV Rule 5, Cap 27 of the Laws of Zambia. It is supported by an affidavit that was sworn by Felix Smit, the administrative church elder-in-charge of R2 Chunga Central Seventh Day Adventist Church, a congregation affected b~ the Plaintiffs action. The said Felix Smit averred that the prope~ty, namely Stand Number CH55/7398, Chunga is under Ho~sing (Statutory and Improvement Areas) directly administer~d by the Lusaka City Council. He further averred that imm~diately the area in dispute was surveyed and designated as an area for church plots by the Lusaka City Council, the Defendant applied and was allocated Stand Number I CH55/739 , Chunga, now in dispute. He further averred that since Lusaka City Council was and is the I principal administrator of the properties in the area it is better that it be jJined to the action. He prayed that the Lusaka City Council be accordingly joined to the proceedings as a Second Defendant. The and I Learned Advocates for the Defendant, Messrs I. C. Ng'onga Company filed a list of authorities of their application. They submitted that Order 14 sub rule 4 provides in support that - "Wherea Defendant claims contribution, indemnity or other remedy or ~elief over against any other person, he may apply to haJe such person made a party to the suit." Order 14 sub rule 5 provides that _ "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 ulho may be affected by the result have not been R3 made parties, the court or a Judge may adjourn the hearing of the suit to a further day to be fvced by the court or a Judge, aAd direct that such persons shall be made either Plaintiff hr Defendant in the suit as the case may be. In such casd, the court shall issue such notice to such persons which shall be served in the manner provided by the rules for the serce of Writ of Summons or in such manner as the court or a Judge thinks fit to direct ..." I I I The Learned Advocates for the Defendant also referred to Order IS/6(2)(b)(ij and (ii) of the Rules of the Supreme Court, 1999 I Edition, which provides that - "subject to the provisions of this Rule, at an~ stage of proceedings in any cause or matter, the court may cin such terms as it thinks just and either on its own I motion or on app lcatlOn _ I" " " (b) order anl of the following persons to be added as a party, namely (i) any person who ought to have been joined as a in party or whose presebce before the court is necessary to ensure that all matters in di~pute in the cause or matter may be effectually and completely ddtermined or adjudicated upon, or (ii) any persdn between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matt~r which in the opinion of the court it would be just and conveniedt to determine and that party as well as between I h t e parties to ause or matter. " R4 At the hearing of the matter, the Learned Counsel for the Defendan~ Mr. Ng'onga submitted that the Plaintiff was duly served with process and the affidavit of service was filed on the 25th of A~gust, 2015. Following the service, the Defendant's Advocates received a notice of appoin tmen t meaning that the Plaintiffs Advocates were fully aware of the date of hearing. The Court graJted the Defendant's Counsel leave to proceed with the applicationl. Mr. Ng'ongl then submitted that the Defendant's application is to join the LJsaka City Council as a party to these proceedings. This is supborted by an affidavit that was filed on the 9th of July, I 2015 as well as a number of authorities that were cited in a list that was filed on the 13th of August, 2015. Mr. Ng'ongl submitted that he seeks the court's determination whether thd Lusaka City Council has an interest in the matter and whether the outcome of the matter will affect the Council. Mr. Ng'Ong~ submitted that according to the authorities, the Lusaka Cit~ Council will be affected by any decision that the court may make as it is the authority which gave the plot in dispute to the Applicant. He prayed that the application be granted. Mrb Bupe, the Legal Officer at the Lusaka City Council opposed th1 application and submitted that an affidavit in opposition was filed on the 14th of August, 2015. She submitted that she would rely on the said affidavit in opposition and further submitted tJat the Applicant is at liberty to invite the Lusaka City Council as a witness in the matter rather than joining the Council as a party to the suit. The affidavit in opposition was I I I I I I RS sworn by one Gabriel Phiri, a legal assistant at the Council. He averred th1atthe Defendant had not show any cause of action of against th~ intended party entitling him to join it the matter. The intended Jarty has no interest in the subject matter of this suit I and may incur unnecessary costs by being joined as a party when it hls no interest and is not likely to be affected by the I result. Mr. Ng'onga responded by stating that showing the interest or cause of action can only be revealed if the party is joined. He further submitted that that the party might have the option of calling someone as a witness. That option has disadvanta~es. The witness called can put in conditionalities which might hamper the outcome of the case. Mr. Ng'ongd therefore prayed that the order be granted. I have considered the affidavit evidence, the skeleton arguments and the ,J.guments by counsel. The issue that requires determinatiJn by this court is whether the Lusaka City Council ought to bd joined to the proceedings as an interested party which is lik11Yto be affected by the decision of the court. I have considered <Drder14 of the High Court Act. It makes provision for joining a person to the proceedings where it appears to the court that the person is likely to be affected by the outcome of the proceedings. The said order serves to ensure that all persons who are interested in ldispute or may be affected by it are heard. It gives them an opp+tunity to be heard and bring finality to proceedings once and for all to avoid a multiplicity of actions. Order 15 Rule 6, Sub Rule 4 of the White Book states that _ R6 "subject to the provisions of this rule, at any stage of the procee mgs m any cause or ma er, tt th e cou may on suc rt h d. I . terms as it thinks fit and either of its own motion or on application - I (b) Order any of the following persons to be added as a party namely- (i) any person who ought to have been joined as a party or whose presence b Ifore the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon or (ii) any perlon between whom any party to the cause or matter there may exist a question or issue arising out of or relating to or connected \~ith any relief or remedy deemed in the cause or matter which in the opinion of the court it would be just and convenient tb determine as between him and that party as well as between the ~arties to the cause or matter. In the case of Abel Mulenga and Others vs. Chikumbi and Others' (2006) ZR 33, the court held that _ "in order fJr a party to be joined in an action, the party ought to show that they have an interest in the subject matter of thb action." In order for this court to be satisfied that there is sufficient reason to warrant the joining of the Lusaka City Council to these proceedings, the Defendant must show the Lusaka City Council's b . hi e mterest m t e matter an . state t e questIOn or Issue to h d . . I I I I R7 determined between him and any party to the cause or matter. I None of these conditions has been adequately satisfied by the Defendant! In the caJ of Gouriet vs. Union of Post Office Workers2 (1982) A. C. 617 ~t 629 and 631, it was stated that the question of sufficient considerin I the subject matter at hand. ibterest is one that has to be objectively determined I find that the reliefs sought have no direct effect or material bearing on the Lusaka City council. Having found that the Defendant has not demonstrated reason to warrant I to the joining of the Lusaka City Council to these proceedings, I hereby decline to grant the application for joinder to these proceedings. I I dismiss the lapplication as being misconceived and lacking merit. I will howevL make no order for costs. Leave to ap)eal is granted. I Dated this 8th day of October, 2015. P. C. M. NGULUBE HIGH COURTJUDGE