Antonio Ventriglia and Anor v Eastern and Southern African Trade and Development Bank and Anor [2020] ZMCA 187 (24 December 2020)

IN THE COURT OF APPEAL FOR ZAMBIA CAZ Appeal No. 109/2019 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ANTONIO VENTRIGLIA MANUELA VENTRIGLIA AND -TflAI.. C)f 24 DEC 2020 f) ef 1ST APPELLANT 2ND APPELLANT EASTERN AND SOUTHERN AFRICAN TRADE 1ST RESPONDENT AND DEVELOPMENT BANK ROBERT MBONANI SIMEZA (In his capacity as Receiver of Zambezi Portland Cement Limited (In Receivership)) 2ND RESPONDENT CORAM (cid:9) : Kondolo (S. C), Chishimba and Mulongoti, JJA 19th June, 2020 and 24th December, 2020 For the Appellants (cid:9) : Mr. S. Sikota (SC), Mr. Kanda, C. Mwambazi of Messrs Central Chambers and Mr. S. Mambwe, A. Siwila of Messrs. Mambwe Siwila Advocates. (cid:9) Mr. C. M. Sianondo of Messrs Malambo & Co. For the Respondents : Mr. L. Mwamba of Messrs Simeza Sangwa Advocates JUDGMENT CHISHIMBA, JA, delivered the Judgment of the Court -J2- CASES REFERRED TO: 1. Zambia Seed Company Limited v Charter International (Pvt) Limited (1999) Z. R 151 2. Barclays Bank Limited v ERZ and Others SCZ Appeal 71/2007 3. Robinson v Robinson (Disclosure) 4. Kalyoto Muhalyo Paluku v Granny's bakery Limited, Ishaq Musa, Attorney General and Lusaka City Council (2006) Z. L. R 119 5. Bank of Zambia v Aaron Chungu, Access Financial Services limited & Access Leasing Limited (2008) ZR 81 6. Limpic Vs Mawere and Others (2014) ZR 7. London Ngoma and Others v. LCM Company Limited and Another (1999) ZR 75 8. Ituna Partners v. Zambia Open University SCZ Appeal No. 117 of 2008 9. Sanat Limited v. Shaileshkumar Surgankant Amin CAZ Appeal No. 146 of 10. Wilson Masauso Zulu v Avondale Housing Projects Limited [1982] ZR 172 11. Development Finance Corporation vs. Honorio Buran & Others (no citation) 12. Crossland Mutula & Bashir Seedat vs. Donovan Chipanda SCZ 53/2018 13. ZRA v. Ikisando and 3525 Others 14. Balkanbank v. Taher and Others (1995) 1 WLR 15. Cornhill Insurance PLC v. Barclays (1992) CA Transcript 948 16. Emeries v. Woodward (1990) 43 Ch. D. 185 17. Fred M'membe and The Post Newspaper Limited (In Liquidation) v. Abel Mboozi & Others Appeal 175/2019 LEGISLATION AND OTHER WORKS REFERRED TO: 1. (cid:9) The Rules of the Supreme Court of England (White Book) 1999 Edition. -J3- 2. (cid:9) Black's Dictionary, 811, Edition by Bryan A. Garner. 1.0 INTRODUCTION 1. 1 This is an appeal arising from a ruling of the High Court delivered by Justice Charles Zulu, on the preliminary issues raised by the 2n6 respondent in respect of the application by the appellants to set aside a consent judgment. 1.2 The appeal addresses the issue of whether a consent order can be properly set aside within the same action and the procedure to be employed when chalenging a consent order. 2.0 FACTUAL BACKGROUND 2.1 The facts preceding the appeal are as follows; the appellants and Zambezi Portland Cement Limited (3id1 Plaintiff) commenced an action against the respondents on 6111 September, 2008 seeking, inter alia, a declaration that there was a dispute relating to a loan agreement entered into between the parties and that the same be referred to arbitration for determination. Before the matter was determined, Zambezi Portland Cement Limited and the respondents executed a consent order on 160h -J4- April, 2014. The appellants were not party to the executed consent order. They were out of jurisdiction at the material time. 2.2 On 29th January, 2019, the appellants by way of summons applied to set aside the consent order. The application was made pursuant to Order 3 Rule 2 of the High Court Rules as read with Order 42 Rule 5A (3) of the Rules of the Supreme Court (White Book). The application was made within the same cause. The appellants sought to set aside the consent order on the basis that; (i) they did not sign the consent order as they were forcibly removed from the country at the time it was executed and (ii) that as the only shareholders in the 2nd Respondent, they disagreed with the contents of the consent order. 2.3 According to the appellants, they returned to Zambia sometime in 2015 and only had sight of the consent order at a status conference on 19th November, 2018. 2.4 Before the application to set aside the consent order was heard, the 2nd respondent raised the following preliminary -J5- issues, which culminated in the ruling subject of the appeal, namely; (i) That the court below has no jurisdiction to hear and determine the Plaintiffs application to set aside the consent order as it is functus officio; and (ii) That a consent order cannot be set aside within the same action. 3.0 ARGUMENTS ADVANCED IN THE COURT BELOW: 3.1 The 2nd respondent, in support of the issues raised, argued in a nutshell that a consent order once executed has the nature and force of a judgment. The court becomes functus officio after the consent order is endorsed. Therefore, the court has no authority or jurisdiction to determine any subsequent applications. 3.2 In relation to the mode of challenging the consent order, the 2nd respondent argued that the only way to challenge a consent order is to commence a fresh action. The court was referred to the cases of Zambia Seed Company Limited v Charter International -J 6- (Pvt) Limited (1) and Barclays Bank Limited v ERZ and Others (2) in support of the proposition. 3.3 In opposition, the appellants contended, in the lower court, that the consent order in question could not be equated to a regular consent order as it was not signed by all the parties to the action. They argued that the Supreme Court in the case of Zambia Seed Company Limited v Charter International (Pvt) Limited (1) envisaged a properly executed consent order. According to the appellants, since the consent order in question affronted the provisions of Order 42 Rule 5 of the Rules of the Supreme Court of England (White Book) 1999 Edition and it could be challenged or set aside without commencing a fresh action. 3.4 Further, that the court was not furictus officio as the consent order in question can be likened to a default judgment. In addition, the court is only rendered functus officio after trial and pronouncement of judgment. 3.5 Regarding the court's jurisdiction to hear the application to set aside the consent order, the appellants relied on the case of Robinson v Robinson (Disclosure) (3) in which it was stated that it is more convenient to make an application to the judge who made J7,. -J7- the original order who after determining the application can the make a new order, should the circumstances warrant. 3.6 The appellants placed heavy emphasis on the cited case of Kalyoto Muhalyo Paluku v Granny's bakery Limited, Ishaq Musa, Attorney General and Lusaka City Council (4)• 3.7 The 2' Respondent contended that the comments made in the Paluku case (supra), relating to the application to set aside the consent order were obiter dicta and therefore not binding on courts. Further, that recent decisions of the Supreme Court have stated that consent orders may only be challenged and subsequently set aside by commencing a fresh action. 4.0 DECISION OF THE LOWER COURT: 4.1 In his ruling, the learned Judge started by dealing with the arguments relating to the Paluku Case and making a distinction between ratio decidendi and obiter dicta, namely that the latter is not binding because it is not the law. He relied on the cases of Bank of Zambia v Aaron Chungu, Access Financial Services Limited & Access Leasing Limited (5) and Limpic v Ma were and Others (6)• The learned Judge concluded that the comments made by the Supreme Court in the Paluku Case were merely -J 8- obiter. He found no reason to depart from the established principle that a consent order can only be challenged through commencement of a fresh action. Consequently, the court upheld the preliminary issues raised by the 2' respondent. 5.0 THE APPEAL: 5.1 The appellants raised four grounds of appeal couched in the following terms: (i) The Court below misapprehended the law when it dismissed the Plaintiff's application holding that a 'consent order' such as the one under discussion could not be set aside within the same action but by commencing afresh action (ii) The Court below misapprehended the law when it held that the comments and observations made on the setting aside of a 'consent order' by the Supreme Court in the Kalyoto Muhalyo Paluku v Granny's Bakery Limited & Others case were obiter dicta and therefore not binding on it (iii) The Court below misdirected itself in law and in fact when it held that, as regards the 'consent order', it was functus officio and could therefore not entertain an application to set aside the same. _J9- (iv) The learned trial Judge erred in law when he failed to deal with all matters in controversy. 6.0 ARGUMENTS ON APPEAL: 6.1 In ground one, the appellants submitted that the Consent Order in issue is one that was subject to being set aside in the same cause as it was executed contrary to the provisions of Order 42 Rule 5A of the Rules of the Supreme Court of England (White Book) 1999 Edition. The appellants argue, in a nutshell, that the consent order was not signed by all the parties. We were referred to the provisions of Order 42 Rule 5A of the White Book which provides for the manner and purpose for which consent orders are executed. 6.2 The appellants specifically argued that the consent order in question clearly flouted the provisions of Order 42 Rule 5A (1) and (3) of the White Book which requires all parties to an action to endorse the said order to validate it. Further, that even though the consent order was for the payment of money, the endorsement in the statement of claim suggests that the action is not one covered under Order 42 Rule 5A(2) of the -J 10- White Book for which a consent order can be settled. According to the appellants, the Supreme Court in the Paluku case dealt with an issue where not all the parties to the action were party to the executed consent order. The Supreme Court, according to the appellants held that a consent order crafted in such a fashion can be challenged and set aside in the same cause. 6.3 The appellants contend that though the lower court relied on the case of Zambia Seed Company Limited v Charter International (Pvt) Limited(') to support the position that a consent order may only be set aside by commencing a fresh action, the said case is distinguishable in that it dealt with a situation where all parties to the action were party to the consent judgment. The law set out in the case of Zambia Seed Company Limited v Charter International (Pvt) Limited(') is not disputed but that the circumstances therein are distinguishable as in this instance not all parties to the action were party to the consent order. 6.4 The appellants maintained that the basis for setting aside the consent order is that it violates the provisions of Order 42 Rule 5A of the White Book which gives the power to parties to an -J12- possible for one case to have more than one ratio decidendi as is the case with the Paluku case. 6.7 The appellants submit that should we be of the opinion that the observations made by the Supreme Court in the Paluku case were merely obiter, then the court should find that the said comments and observations are in fact persuasive and should not have been ignored by the lower court. 6.8 Under ground 3, the appellants contended that the court below was not functus officio following the execution of the consent order. A court being functus officio entails that there has been regular proceedings in which all substantive issues have been determined by the court. We were referred to the definition of the term functus officio in Black's Dictionary, 8` Edition at page 696. 6.9 The appellants submits that the term functus officio cannot be used to cover orders that had been obtained irregularly. Further, that the substantive issues raised in the statement of claim have not been determined. The appellants maintained that despite appearing in the heading of the consent order, they did not endorse the consent order. In addition, that the issues -J13- remain unresolved in the face of the consent order which brought with it more questions than answers. 6.10 With regard to when a court becomes functus officio, we were referred to the case of Ituna Partners v. Zambia Open University (8) where the court held that a court becomes functus officio when all substantive issues in the cause are determined by it. The appellants contend that the court below could not have become functus officio when it had not determined the issues in the pleadings, further it did not address the fact that Appellants were not party to the executed consent order. We were referred to the case of Sanat Limited v. Shaileshkumar Surgankant Amin (9) where we stated that a matter must have been heard on its merits for a court to become functus officio. Therefore, the lower court ought to have proceeded to hear and determine the application to set aside the consent order that was executed contrary to the provisions of Order 42 Rule 5A of the Supreme Court Rules. 6.11 In ground 4, the appellants argued that the executed consent order did not address the reliefs sought in the statement of claim. We were referred to the case of Wilson Masauso Zulu v -J14- Avondale Housing Projects Limited (10) in which the Supreme Court urged trial courts to adjudicate upon all aspects of an action so that every matter in controversy is determined. The appellants contend that the consent order was merely executed to ensure that the matter does not proceed to trial after they had been forcefully removed from Zambia. 6.12 Learned State Counsel at the hearing of the appeal drew our attention to a judgment of the Supreme Court of Belize in the case of Development Finance Corporation vs Honorio Buran & Others (11)• The case stated that the appropriate procedure where a party has not executed a consent order is to intervene in the same action and not to commence a fresh action. 6.13 As regards the provisions of Order 42 Rule 5A subrule 3, it was submited that the same is a condition precedent. That before a judgment by consent is sealed, it must be endorsed by the Advocates acting for each of the parties. The case of Crossland Mutinta, Bashir Seedat and Donovan Chipanda (12) was cited on the definition of a condition precedent. We were urged to allow the appeal with costs and order the lower court -J15- to hear and determine the application by the appellants to set • aside the consent order. 6.14 The 2nd respondent, in the heads of arguments dated 19th July 2019, submits that a consent order upon endorsement and sealing by a court becomes an order of the court. We were referred to the case of ZRA v. Ikisando and Others (13) where the Supreme Court cited with approval the case of Balkanbank v. Taher and Others (14)• Particularly, the quotes by the Learned Judge in Cornhill Insurance PLC v. Barclays (15) that "when a Judge approves a consent order, it takes effect as if made by him". According to the 2nd respondent the consent order made by the court therefore has all the consequences of a Court Judgment or Order. 6.15 It was submitted that a consent order becomes an order by or in the name of the Judge. That a consent order though signed by the parties has no life and is only effective once endorsed by a Judge. The 2nd respondent further submits that a consent order cannot be said to be invalid on the mere premise that one of the parties has not signed it. That once approved by the -J16- court, by endorsing it, it becomes valid regardless of whether or not it was executed and signed by all the parties to the action. 6.16 It was contended that the appellants have ignored the role of the court in validating a consent order. That the appellants cannot argue that the signatures by the parties is what validates the Consent order. Further, that Order 42 Rule 5A of the White Book referred to by the appellants does not stipulate that a consent order is invalid if not signed by all the parties. That the appellants are reading words into the said Order. In addition, that the arguments by the appellants are based on a misconception of the provisions of Order 42 Rule 5A of the White Book. 6.17 The 2nd Respondent reiterated that the consent order in question was executed by the advocates of all the parties, therefore, it is a valid order of the court which can only be set aside by commencing a fresh action. Further, that there is no law that prohibits parties to enter into a Consent Order to the exclusion of any other party to the action. Therefore, Zambezi Portland Cement Limited was at liberty to enter into a Consent Order with the Respondents to the exclusion of the appellants. -J 17- In addition, that the consent order in question only settled the action between Zambezi Portland Limited and the respondents. Nothing prevents the appellants from pursuing the claims against the respondents should they wish to do so. That the consent order had nothing to do with the appellants therefore, there was no need for them to have signed the consent order in question. 6.18 The 2nd respondent argued that even assuming that the appellants ought to have executed the said consent order, the lack of signature by them cannot be impugned in the same action. In support of this argument, the respondents referred to the cited cases of Zambia Seed Company Limited v Charter International (Pvt) Limited (1), Barclays Bank Limited v ERZ and Others (2) and Emeries v. Woodward (16) where the court stated, inter alia, that a consent order/judgment may only be set aside by commencing a fresh action. 6.19 The 2nd respondent contends that the appellants adopted the wrong procedure when they sought to set aside a consent order by way of interlocutory summons in the same action as opposed to commencing a fresh action. The fact that the -J18- appellants did not sign the said consent order does not entitle them to flout the procedure to be followed when setting aside a consent order/judgment. 6.20 The 2nd respondent further contended that the appellants had failed to distinguish the cited case of Zambia Seed Company Limited v Charter International (Pvt) Limited (1) from the case in casu. The Supreme Court did not state, that the procedure for setting aside a consent order by way of commencing a fresh action only applies to instances where all parties to the action have signed the consent order. The test as laid down in Zambia Seed Company applies by the more existence of a consent order, and is not dependent on whether or not it has been signed by all the parties to the action. 6.21 The 2nd respondent proceeded to address the appellants reliance on the Paluku case and the contention that orders not in conformity with the provisions of Order 42 Rule 5A of the White Book can be set aside in the same action. It was argued that the Paluku case is distinguishable from the case in hand because in the Paluku case, the consent order was such that the appellant could not proceed with the action and could no longer -J 19- be heard. Whereas in this case, the appellants are at liberty to prosecute their case against the respondents as the consent order did not determine their claims. The consent order before us only affected Zambezi Portland Limited and the respondents. Therefore, it does not fall within the ambit of Order 42 Rule 5A and (3) of the White Book. 6.22 Further, that the reliance by the appellants on the Patuku case and London Ngoma is misconceived as the court in the above cited cases did not hold that a consent order can be set aside in the same cause. That the London Ngoma case dealt with the issue of whether or not a party may be joined to proceedings after a consent judgment has been entered. In addition, that the Court in the London Ngoma case held that a non-party with interest in a matter can be joined to proceedings after a consent judgment has been entered and that party can then proceed to make an application to have the consent order set aside. Therefore, the appellants having already been party to the proceedings cannot rely on the London Ngoma case. 6.23 The 2nd respondent went on to state that the London Ngoma -J20- case and the Paluku case were decided before the case of Zambia Seed Company Limited v. Charter International (Pvt) Limited (1) That in Zambia Seed Company Limited v. Charter International (Pvt) Limited (1)the Supreme Court held that a consent order may only be set aside by commencing a fresh action. Therefore, the Zambia Seed Company case having been the latest decision, is the one which ought to be followed. 6.24 In response to ground 2, on the issue of obiter dicta, it is contended that a statement made in passing by a court is obiter and is not binding. We were referred to the definition of the term obiter dictum as defined in Black's Law Dictionary. That the statement the appellants seek to rely on in the case of Paluku case was obiter as the Supreme Court did not give any legal reasoning for it. We were referred to page 130 of the Paluku judgment of Supreme Court were the court stated that the question it sought to determine was whether the Respondent had successfully prosecuted its preliminary -J21- objections and if so whether or not the issues went to the root of the matter. According to the Respondent the issue of setting aside a consent order/judgment did not form part of the ratio decidendi of the Supreme Court's decision. That the statement regarding setting aside consent orders /judgments within the same action was made before the Supreme Court set out its ratio decidendi therefore it cannot form part of the rationale. It was submitted that, that was why the lower court was not persuaded by the comments made in passing in light of the holding of the Supreme Court in Zambia Seed Company Limited v Charter International (Pvt) Limited (1) 6.25 In response to ground 3, on the issue of functus officio, the 2nd Respondent submitted that in line with the holding of the Supreme Court in Ituna Partners v. Zambia Open University (6) a court becomes functus officio when it deals with all substantive issues before it. That the consent order effectively determined all the issues between Zambezi Portland Cement Limited and the Respondents. Therefore, the court became functus officio, as regards the issues between the Respondents and Zambezi Portland Cement Limited, when it endorsed the consent order. -J22- That the court cannot be expected to re-determine the issues settled by the consent order. 6.26 In response to ground 4, the 2nd respondent submits that the court below did not fail to deal with all matters in controversy, what the lower Court was determining subject of appeal was the application to raise preliminary issues. The respondents' application raised two issues namely that; the lower court had no jurisdiction to determine and hear the plaintiff's application to set aside the consent order as it was functus officio and that the said order could not be set aside in the same action. 6.27 It was therefore submitted by the 2nd respondent, that the lower court had comprehensively dealt with the two issues raised in the application before it. The court upheld the 2nd respondent's objections and dismissed the appellants' application to set aside the consent order. It is a misdirection for the appellants to argue that the lower court did not determine the issues they raised in their application to set aside the consent order. 6.28 In respect to the Belize Supreme Court decision of Development Finance Corporation v. Honorio Duran & Others, Counsel for the 2nd respondent submits that the -J23- authority does not aid the appellant as it dealt with the issue of whether a none party to the proceedings could set aside a consent order within the same cause. Reference was made to the case of Barclays PLC vs ERZ Holdings Limited. It was contended that regardless of whether you are a party to the action, a fresh action must be commenced to set aside a consent order. 6.29 In respect of the provisions of Order 42 Rule 5(a) (3) the same was inapplicable and we were urged to dismiss the appeal for lack of merit. 7.0 ARGUMENTS IN REPLY: 7.1 The appellants filed arguments in reply dated 26th July, 2019. They maintained that a Consent Order ought to conform with the provisions of Order 42 Rule 5A of the White Book. Where a consent order has been drawn contrary to the said provisions it can be set aside in the same action. The contentions by the 2nd respondent regarding when a Consent Order becomes effective are irrelevant with respect to this appeal as Order 42 Rule 5A of the White Book is clear with regard to the manner -J24- in which a consent order ought to be drawn. A valid consent ought to meet the threshold set out under Order 42 of the White Book in order for it to be valid. 7.2 It was submitted that the holding of the Supreme Court in the Paluku case is that a consent order can be challenged by an omitted party in the same cause. Hence, the Appellants' reliance and contention that non-compliance with Order 42 Rule 5A of the White Book invalidates a consent order. Contrary to the contentions by the respondent, the appellants have not read any words into the above provision of the White Book, neither have they misapprehended the provision. 7.3 The Learned Counsel submitted that the consent order in issue sought to have ended the entire proceedings but omitted to include the appellants. Further, that the 2nd respondent's argument that there is no law that proscribes parties to enter into Consent Orders to the exclusion of any other parties is a misapprehension of the law as it does not take into account the need for all parties to be included on the consent order as per Order 42 of the White Book. Order 42 Rule 5A of the White -J25- Book is explicit on the requirement that all parties to an action ought to be made party to a consent order/judgment. Further, that because not all parties to the action herein were party to the consent order it therefore, remains incomplete and invalid. A party is not at liberty, under Order 42 Rule 5A of the White Book to settle a consent order/judgment to the exclusion of other parties in the same action. Had the parties sought to exclude the appellants, they ought to have drafted the consent order pursuant to a provision other than Order 42 Rule 5A of the White Book. 7.4 (cid:9) As regards the issue of functus officio, the appellants reiterated that the court did not become functus officio after approving the Consent Order as the matter was never determined on the merits and that the issues raised in the statement of claim remain unresolved. The holding that the court had become ftt nctus of (cid:9) following the approval of the consent order amounted to determining all the issues in controversy when in fact other issues remained unresolved. The lower court did not address the fact that the appellants were not made party to the consent order or the fact that they did not sign it. It was -J26- cardinal that the High Court addressed and pronounced itself on the issue because the provisions of Order 42 Rule 5A (3) of the White Book are couched in mandatory terms. We were urged to uphold the appeal. 8.0 DECISION OF THE COURT: 8.1 We have considered the appeal, the authorities cited and the arguments advanced by Learned State Counsel and all the Learned Advocates on record. 8.2 The appellant has raised four grounds of appeal, the main issue for determination in our view is whether a consent judgment /order can be set aside in the same cause or proceedings. It raises the vexed question of whether in the circumstances of this matter, a consent judgment can be set aside within the same cause. 8.3 The undisputed facts in this matter are that in 2008, the appellants commenced an action against the Eastern and Southern African Trade and Development Bank and Robert Simeza in his capacity as receiver of Zambezi Portland Cement Limited (Respondents). They sought a declaration in respect of the loan agreement between the parties to declare a dispute and -J27- refer the dispute to arbitration. Damages were also sought for undue loss of the appellant's credibility and loss of business etc. 8.4 On 16th April, 2014, the 3rd plaintiff, Zambezi Portland Cement Limited and the respondents through their advocates on record entered into a consent order whose key terms are as follows: (i) That Zambezi Portland Cement Limited shall pay the 1st respondent the sum of USD 1,000,000.00 in full and final settlement of the money advanced by the bank to it. (ii)The said sum was to be paid within seven (7) days and in return securities held would be discharged. The other pertinent term was settled as follows: "except for the purpose of enforcing the terms of this order upon the satisfaction of the terms stipulated in clauses (b) and (c) above this action shall stand discontinued and settled as between the 3rd plaintiff and the defendants (respondents) and the parties shall have no further claims as against each other now or in the future in respect of any matter whatsoever arising out of the various lending agreements executed between the 3rd plaintiff and the 1st defendant (Bank)." 8.5 It is not in issue that the appellants were parties to the -J28- proceedings, but they were not party to the consent order executed pursuant to the provisions of Order 42 Rule 5A of the Rules of the Supreme Court 1999 Edition. Thereafter the appellants applied to set aside the said consent order on the basis of disputed want of authority on the part of the law firm that endorsed the consent order and that the consent order was not signed by them or their lawyers despite being party to the action. In a nutshell, that they were not party to it and it effectively determined their claim altogether. 8.6 The respondents raised a preliminary issue regarding the proper manner in which a consent order may be challenged i.e by commencing a fresh action. The court below upheld the issues and dismissed the application to set aside the consent order made within the same cause. 8.7 (cid:9) Before determination the key issue of whether the consent order could be set aside within the same proceedings / cause, we will deal with the arguments raised in respect of the cited case of Paluku, whether the comments made by the Supreme Court were obiter and not binding. (cid:9) 8.8 The Kalyoto Muhalao Paluku case arose from judicial review -J29- proceedings and dealt with two issues, the main issue of whether a non-Zambian can acquire interest in land and the procedure in respect of consent judgment, that before it is entered or sealed, it must be endorsed by lawyers for each party. At the time when the consent order between the parties was drawn and signed, the appellant in the Paluku case was not present neither, was he represented, though he took part in the negotiations leading to the settlement. 8.9 The appellant then applied to set aside the consent judgment on the basis that it was irregularly done and contravened the provisions of Order 42 of the Rules of the Supreme Court and intended to bar him from being heard as an interested party. 8.10 The Supreme Court stated that the drawing up of the consent order in the absence of the appellant was a breach of Order 42 Rule 5A (1)(3) (9) and that the appellant was therefore, correct to have challenged the consent order and that the lower Court correctly set it aside. -J31- therefore correct to have challenged the consent order. These views were made obiter dicta. Even assuming the contrary, the later decision in the Zambia Seed Company Limited held that the only means open to a party to set aside a consent judgment or order is by commencing a fresh action for that purpose. 8.13 The main contention by the appellants is that because the consent order on the record was not signed by them. i.e all the parties to the action , it can be challenged or set aside in the same cause without commencing a fresh action. The law relating to impeachment or setting aside a consent order was stated in the latter Supreme Court decision in the case of Zambia Seed Company v. Chartered International PVT Limited that the only means open to the party to set aside consent judgment or order is by commencing a fresh action for that purpose. We shall revert to this issue at a later stage. 8.14 The appellant referred us by notice of authority to our decision in the case of Fred M'membe and The Post Newspaper Limited (In Liquidation) v. Abel Mbozi & Others (13)• 8.15 The said case dealt with the issue of the manner in which to challenge a consent order and whether a non party to a consent -J32- judgment can commence a fresh action to set aside the consent order. A consent judgment was executed between the respondents and The Post Newspaper Limited (In Liquidation) declaring the Post insolvent and that it be wound up. The 1st appellant who was not a party to the proceedings applied to set aside the consent order by commencing a fresh action. 8.16 We considered the issue of whether a person or entity that was not party to the consent judgment can commence a fresh action to set it aside. Having found that the 1st appellant was not a party to the proceedings or a party to the consent judgment, we held that the 1st appellant as non-party to the proceedings cannot commence a fresh action for the purpose of setting aside the consent judgment . We went on to state that the first option open to the 1s1 appellant was to apply to be joined to the proceedings, for purposes of commencing a fresh action setting aside the consent judgment. 8.17 In the appeal before us, the appellants were not party to the executed consent order between the company, Zambezi Portland Cement (In receivership) and the respondents for the payment of the money is issue. Though the appellants were not party to the -J33- consent order they were parties to the proceedings unlike in the M'membe case. We are of the view that the appellants having been parties to the proceedings, the proper procedure to impeach the consent order was to apply by way of commencement of a fresh action to challenge the consent order being impugned. 8.18 The contentions by the appellants that the consent order was recorded in its absence without its knowledge and consent could only be advanced by way of commencement of fresh action on the basis that would invalidate the contract. A court has no jurisdiction to set aside a consent order made previously in that same proceedings or cause within the same cause. Therefore, the only means open to a party to set aside a consent order /judgment on the basis of fraud, mistake, misrepresentation or any other reasons that would invalidate a contract is by instituting a fresh action for that purpose. 8.19 The procedural law is clear, that the application must be by commencement of a new action and not by summons or interlocutory applications. Notwithstanding the arguments relating to the provisions of Order 42 Rule 5A of the White -J34- Book, on consent orders being required to be signed by all parties to a cause, any challenge must be by way of commencement of a fresh action. Contentions by the appellants that their advocate lacked authority can only be impugned by instituting a fresh action. They allude to allegations of fraud. 8.20 The appellants further argued that the consent order entered into by Zambezi Portland Limited and the respondents had the effect of terminating the entire action under cause No. 2013/HP/0021 without affording them an opportunity to be heard on their claims against the respondents. 8.21 We are of the view that the consent order did not effectively determine or end the entire proceedings to the exclusion of the appellants. The consent order was between Zambezi Portland (in Liquidation) and the respondents It clearly stipulated that "except for the purpose of enforcing the terms of this order.. . . this action shall stand discontinued and settled as between the 3rd plaintiff (the respondents herein) and the parties shall have no further claims against each other now or in the near future whatsoever arising out of the various lending agreements between the 3rd plaintiff and the 1s defendant (Bank)." -J36- We reiterate that as a party to the proceedings under cause No, 2013/ HPC/ 0021, the appellants could only challenge the consent judgment by way of commencement of a fresh action. For the foregoing reasons, we find no merit in the appeal and accordingly dismiss it with costs to the respondents to be taxed in default of agreement. M. M. Kondolo, SC COURT OF APPEAL JUDGE F. M. Chishimba COURT OF APPEAL JUDGE J. Z. Mulongoti COURT OF APPEAL JUDGE (cid:9) (cid:9)