Chick Masters Ltd and Anor v Investrust Bank PLC (Appeal 198 of 2014) [2017] ZMSC 232 (13 June 2017)

JI IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA APPEAL No 198/2014 SCZ/8/271/2014 (Commercial Jurisdiction) BETWEEN: CHICK MASTERS LIMITED DR. MWILOLA IMAKANDO AND 1st appellant 2nd appellant INVESTRUST BANK PLC RESPONDENT Coram: Malila, Kajimanga and Musonda, JJS on 6th June, 2017 and 13th June, 2017 For the Appellants: Mr. B. Gondtue of Messrs Buta Gondwe & Co. For the Respondent: Mr. C. C. Chonta of Messrs Chonta, Musaila & Pindani Advocates JUDGMENT Malila, JS, delivered the Judgment of the Court Cases referred to: 1. Hip Foog Hong v. Neotia [1918] AC 888 at 893-4, PC. 2. Jonesco v. Beard [1930] AC 298 at 300-1. 3. Stem v. Friedman [1953] 1 WLR 963; [1953] 2 ALL ER 565. 4. Robinson v. Robinson [1982] 2 ALLER 699, CA). 5. Development Bank of Zambia v. Sunvest Ltd. and Another (1995/1997) ZR 185. 6. Kelvin Hang’andu & Co. v. Mulubisha (2008) ZR 82. 7. Mobil Oil (Z) Ltd. v. Malawi Petroleum Control Commission (2004) ZR 227. 8. Bank of Zambia v. Jonas Tembo and Others (SCZ Judgment No. 24 of 2002). 9. Doyle v. Olby (Ironmongers) Limited [1969] 2 QB 158, CA). J2 10. John Wallingford v. The Directors of Mutual Society and the Official Liquidator (1880) 5 App. Cas. 685. 11. Muyawa Liuwa v. Attorney-General (Selected Judgment No. 38 of 2014. 12. English Ampthill Peerage Case (1976) 2 ALLER 411 at 417-418. 13. BP Zambia Pic v. Interiand Motors Limited (2001) ZR 3. 14. Mpongwe Farms Limited v. Dar Farms and Transport Limited Selected Judgment No. 38 of 2016. Legislation and Other Works referred to: 1. Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia. 2. Rules of the Supreme Court (White Book 1999 ed). 3. Halsbury’s Laws of England, vol. 16, 4th Ed. 4. Osborn’s Concise Law Dictionary. 5. Conveyancing and Law of Property Act. 6. Bullen and Leak and Jacob’s Precedents of Pleadings, 12th Ed. Sweet & Maxwell (1975) at page 452 and 453. 7. Legal Practitioners’ Practice Rules, 2002 Rule 35 (5)(b). 8. Black’s Law Dictionary (8th ed.) by Bryan A. Gardner. 9. Halsbury’s Laws of England, 5th ed. vol. 11. This appeal arises from a ruling of the High Court given on the 30th October, 2014. That ruling was on an application by the respondent to dismiss the appellants’ action for being an abuse of court process. The background facts were that the appellants had entered into a mortgage arrangement with the respondent wherein certain moneys were advanced by the respondent to the appellants against the security of a mortgage over Subdivision 78 of Farm 396A and Subdivision A of S/D 180 of J3 Farm 44/a, Lusaka. Following the appellants’ default, the respondent, in cause No. 2010/HPC/0013 (hereafter referred to as the ‘first action’) successfully obtained an order of foreclosure, executable if the appellants failed, within 60 days, to pay to the respondent the sums of K2,499,999,999.00 and K629,517,573.50. Pursuant to that Order, a writ of possession was issued on the 3rd October, 2011 and execution levied on 11th October, 2011. The appellants then applied for leave to appeal out of time, and meanwhile applied for a stay of execution of the writ of possession pending the hearing of their application for leave to appeal out of time. The High Court dismissed both applications on the 25th October, 2011. About four months later, in February, 2013, the appellants were back in court. This time, under a newly commenced action caused number 2013/HPC/0081 (hereafter called the second action). Under that action they sought damages for what they considered was an illegal execution of the writ of possession in the first action. Their argument was that the execution of the writ of possession was null and void because that writ was not registered in accordance with the provisions of the Lands and Deeds Registry Act chapter 185 of J4 the laws of Zambia. On 9th April, 2013 the respondent applied to dismiss the second action as being an abuse of court process on grounds that commencement of that action constituted a multiplicity of actions in respect of the same subject matter. The appellants resisted that application, arguing that commencing a fresh action was for purposes of seeking compensation for the illegal manner in which the respondent had exercised its right of sale under a writ of possession which had not been registered as required by law, resulting in disruption of the first appellant’s business operations. It was also contended that the judgment was registered out of time without leave; and that the seizure of the appellant’s movable assets, using a writ of possession in the absence of the requisite process for seizure of such assets, was incompetent. The learned High Court judge, upon review of the circumstances surrounding the application, found the action to be baseless, hopeless, scandalous, frivolous and vexatious, and a conspicuous abuse of court process. He dismissed the action accordingly. J5 Undeterred by all these developments the appellants, with remarkable resilience, appealed against that ruling to the Supreme Court alleging that the lower court judge erred by holding that the second action was an abuse of court process. The Supreme Court heard the appeal as Appeal No. 74 of 2014. We held in that case that a writ of possession is not in the same category as a writ of elegit and does not grant or create or transfer an interest in land. As such, it does not require registration under the Lands and Deeds Registry Act, chapter 185 of the laws of Zambia. We thus dismissed the appellants’ arguments premised on the non registration of the writ of possession. We also held that at the time the writ of possession was executed, the appellants had lost their redemption rights and thus had no interest in the two properties which had been mortgaged. We concluded that the learned judge was on firm ground when he dismissed the second action as the appellant had no cause of action. Notwithstanding the foregoing state of affairs, the appellants were unrelenting. Talk about tenacity. They commenced fresh proceedings in cause No. 2014/HPC/0338 J6 (hereafter referred to as the ‘third action’) on the 12th August, 2014 by way of a writ of summons and a statement of claim. They sought the court’s orders that the judgment obtained in the first action be set aside on account of its having been obtained by misrepresentation and/or fraud; and that all proceedings including execution of the judgment under that action be set aside. Furthermore, they sought the court to order and direct that the loan account be deemed to have stood, as it was at 30th April, 2010, rebased at K3,334,350.22. They also asked the court to order that they be credited with the value of the mortgaged properties which, as at January, 2011, stood at KI 1,000,000 rebased with interest thereon. Furthermore, they sought the replacement value of movable assets seized during the foreclosure, which included day old chicks, broilers and quail breeders. To this fresh action, the respondents entered conditional appearance and subsequently took out summons pursuant to Order 18 rule 19(l)d of the Rules of the Supreme Court (White Book, 1999 ed.) to dismiss the appellant’s action for being an abuse of court process. It was on this application that the ruling now being assailed in this appeal was based. J7 In his ruling, the learned High Court judge dismissed the appellants’ action as being an abuse of the process of the court and accordingly struck out the writ of summons and statement of claim. The appellants were unhappy with that ruling, and not unexpectedly, they launched the present appeal raising four grounds of appeal structured as follows: GROUND ONE That the court below misdirected itself by in one breath finding that the claim of misrepresentation and fraud by the appellants was not strictly res judicata but still in another breath refusing to let the matter go for trial GROUND TWO The court below misdirected itself by finding that action under cause No. 2014/HPC/0338 was res judicata as this matter was not determined on merit and neither was cause No. 2013/HPC/0081 determined on merit but on interlocutory basis only. GROUNDTHREE The court below misdirected itself in fact and in law by finding that there was multiplicity of actions, as the action under cause No. 2014/HPC/0338 was premised on misrepresentation and fraud based on explicit representations by the respondent which were clearly prejudicial and injurious to the appellants as evident in ground 4 below and which representations came to light in 2014. J8 GROUND FOUR The court below erred in law and in fact by failing to take into account that due to the respondent’s misrepresentations the appellants failed to exercise its equity of redemption leading to a judgment that was obtained by misrepresentation and/or fraud and that this is an appropriate matter to proceed to trial for determination. Heads of argument in support of the appeal were filed on 11th December, 2014 and those opposing the appeal on 16th March, 2015. There were also heads of argument in reply filed on the 30th May, 2017. Mr. Gondwe, learned counsel for the appellant, intimated at the hearing that he was placing reliance on the heads of argument in support and in reply. Mr. Chonta, learned counsel for the respondent, equally relied on the heads of argument in support of the respondent’s case. Both learned counsel supplemented their heads of argument with brief oral submissions. Ground one of the appeal attacks the lower court’s finding that the claim of misrepresentation and fraud by the appellant was not strictly res judicata and yet the same court refused to allow the matter to proceed to trial. The learned counsel for the J9 appellant focused his criticism of the lower court’s reasoning in the portion of the ruling which reads as follows: I must emphasise and add that, although the issue of misrepresentation and fraud are not strictly res judicata, it would be improper for the court to allow these issues to go to trial. According to Mr. Gondwe, this passage in the ruling clearly acknowledged that the issue of misrepresentation and fraud had not been determined by any court and hence were not res judicata and yet, the court took the view that the matter should not proceed to trial on account of there having been an earlier action in cause No. 2013/HPC/0081 - the second action - which, as we have already pointed out, was dismissed for being frivolous and an abuse of court process. The learned counsel argued that there was a misdirection on the part of the lower court because an application premised on fraud could not have been brought under the first cause in view of Oder 59 rule 11 sub-rule 17 of the White Book which directs that a fresh action ought to be commenced in those circumstances. The learned counsel quoted Order 59 rule 11 (17) which reads as follows: J10 Judgment obtained by fraud - there is jurisdiction to set aside a judgment for fraud on a motion for a new trial, but as a rule an action must be brought for the purpose, and if for special reasons a motion is permitted, the charge of fraud must be made with the same particularity as in an action and as strictly proved and the same rules apply as to burden of proof and admissibility of evidence (Hip Foog Hong v. Neotia1; Jbnesco v. Beard2; Stem v. Friedman3) where it is alleged that a judgment was obtained by fraud, the appropriate course would normally be to bring a fresh action to set aside that judgment, because in such cases, there will usually be serious and difficult issues of fact to be determined, and therefore a first instance court is the most appropriate forum (Robinson v. Robinson4). Counsel maintained that the judgment in the first action was obtained by misrepresentation and/or fraud and therefore to hold that an appropriate application should have been made within that action was misplaced. Furthermore, the misrepresentation and/or fraud which rendered the matter actionable was only revealed by the respondent via a letter of 11th July, 2014 and the attached documentation which confirmed what was thus far only suspicion held by the appellant as regards the respondent’s misrepresentation and/or fraud. It was for this reason that the appellant claimed that it was not able to bring forth a claim Jll against the respondent premised on fraud and/or misrepresentation earlier. Regarding the issue of multiplicity of actions, it was contended on behalf of the appellant that such a holding was misdirected principally because the appeal that was pending at the time of hearing the application before the court related only to the question whether a cause of action had been disclosed or not and secondly, that the decision to be rendered by the Supreme Court on appeal would only be on the said ground. This effectively meant that if the appellant succeeded then the matter would be referred to a court of first instance for determination. In response to ground one of the appeal, Mr. Chonta began by recapping the litigation history of this matter concluding that the matter, involving the same parties and issues has been litigated in different courts in five different circumstances including the present. He submitted that under ground one of the appeal the appellants had failed to make a distinction between having a matter being a subject of multiplicity of action and one being res judicata. He submitted J12 that abuse of court process is a general term which could encompass multiplicity of actions or pursuing a matter that is res judicata. He cited the case of Development Bank of Zambia v. Sunvest Ltd. and Another5 where we indicated that multiplicity of actions is to be deprecated. Quoting from the White Book (1999 ed.), Order 18/19/19 counsel submitted that it is an abuse of the process of the court and contrary to public policy for a party to relitigate an issue that has been tried and decided by a court of law. Mr. Chonta dispelled as misleading, the submission on behalf of the appellants that the cause of action in the third action arose only after the respondent’s letter to the appellants of 11th July, 2014 and therefore could not have been raised earlier. He submitted that, as was shown in the court below, as at the date of commencement of the dismissal proceedings, the appellant had raised issue about what the appellants now claim to be misrepresentation and/or fraud. He referred us to the letter dated 4th February, 2013 from the appellants, to the respondent authored more than a year before the commencement of the proceedings whose dismissal was the J13 subject of the present appeal. He urged us to dismiss ground one of the appeal. In his reply to the arguments made in respect of ground one, the appellants’ learned counsel reiterated that the appellants had no opportunity to raise misrepresentation and/or fraud which, as the lower court observed, were not res judicata. He argued that misrepresentation and/or fraud are not allegations to be taken lightly as stated in the case of John Wallingford v. The Directors of Mutual Society and the Official Liquidator10 by the House of Lords. He also adverted to Bullen and Leak and Jacob’s Precedents of Pleadings, 12th Ed. Sweet & Maxwell to buttress the point. Mr. Gondwe also submitted that the lower court should not have made much of the fact that the appellants, in their personal and unrepresented capacity, did in February, 2013 write a letter indicating concern on what they termed as statutory misrepresentations. Such an allegation without more, was not sufficient to enable the appellants commence an action premised on the perception of misrepresentation and fraud J14 alone. He quoted the Legal Practitioners’ Practice Rules, 2002 Rule 35 (5)(b) which states that: A practitioner shall not devise facts which will assist in advancing the client’s case and shall not draft any originating process, pleading, affidavit, witness statement or not of appeal containing (b) Any allegation of fraud unless the practitioner has clear instructions to make such allegations and has before him or her reasonably credible material which as it stands establishes a prima facie case of fraud. He argued that for counsel to act on a mere allegation of fraud would have amounted to misconduct. We have considered the submissions of counsel relative to ground one. The question as we see it under this ground is whether or not the issue of fraud and misrepresentation could have been raised earlier in either the first or second action. In truth ground one raises the issue whether the allegations of fraud and/or misrepresentation were truly res judicata. Res judicata is defined on page 1336 of Black’s Law Dictionary (8th ed.) by Bryan A. Gardner as follows: J15 (Latin ‘a thing adjudicated’) 1. An issue that has been definitively settled by judicial decision. 2. An affirmative defence barring the same parties from litigating a second law suit on the same claim, or any other claim arising from the same transaction ora series of transactions and that could have - but was not - raised in the first suit. Giving our reflection on this passage in the case of Mpongwe Farms Limited v. Dar Farms and Transport Limited14, we stated as follows: Our understanding of this authoritative definition is that res judicata puts to rest and entombs in eternal quiescence every justiciable issue and question actually adjudicated upon or which should have been raised in the initial suit. What is clear to us is that res judicata is intended, in the first place, to prevent parties from having to relitigate issues that have already been determined by a court of law. Paragraph 1166 in Halsbury’s Laws of England, 5th ed. vol. 11 perhaps eloquently explains the reasons for this when it states: .... the law discourages relitigation of the same issues except by means of an appeal. It is not in the interest of justice that there should be a retrial of a case which has already been decided by another court, leading to the possibilities of conflicting judicial decision or that there should be collateral challenge to judicial decisions .... J16 As we acknowledged in Bank of Zambia v. Jonas Tembo and Others8, however, in order that a defence of res judicata may succeed, it is necessary to show that the cause of action was the same and that the same point has been actually decided between the same parties. An important point to note with respect to this first limb of res judicata is that a matter ought to have been litigated upon before it can be regarded to be res judicata. However, Halsbury’s Laws of England 4th ed. (reissue) vol. 16(2) states as follows: If, however, there is a matter subsequent which could not be brought before the court at the time, the party is not stopped from raising it. This then brings us to the second aspect of the doctrine of res judicata as defined in Black’s Law Dictionary as we have earlier on quoted it, namely that a matter is res judicata if it “could have but was not - raised in the first suit.” The perceptible difficulty is how to marry this definition and the statement from Halsbury’s Laws of England, which seems to exclude the applicability of res judicata to an issue not raised in an earlier action if it could not be brought in that action. J17 On proper reflection, we find no contradiction between the two statements. A matter that could - but was not raised in the first suit is res judicata in terms of our understanding of res judicata within Black’s Law Dictionary. If such matter could not be raised then it is not res judicata within the explanation given in Halsbury’s Laws of England. What emerges is that where it is possible to show that a matter could have been raised earlier but was not raised - it is res judicata. Conversely if a matter could not be raised earlier, and was for that reason not in fact raised, it is not res judicata. Relating this analysis to the issue of misrepresentation and/or fraud in the present case and the first and second actions, can it be said that misrepresentation and/or fraud could have been raised in the earlier actions - especially the first action and the second action? Mr. Gondwe was at pains to explain to us at the hearing that misrepresentation and/or fraud could not be raised in the first action because it was only in the letter of 11th July, 2014 from the respondent that the appellants’ earlier suspicion was confirmed. According to Mr. Gondwe, given the stringent J18 pleading requirements for misrepresentation and fraud, whatever suspicion the appellants may have had regarding the respondent’s conduct, could not be a subject of concrete action by the appellants before the confirmation in the letter of 11th July, 2014. Mr. Chonta, on the other hand, pointed to the letter dated 4th February, 2013 from the appellants in which they alleged misrepresentation, professional misconduct, perjury, willful neglect and illegality on the part of the respondent, as sufficient indication that before the second action which was commenced on 19th February, 2013 - some two weeks after their letter to the respondent, the appellants were fully alive to issues of misrepresentation and fraud and could therefore have raised them in the second action rather than wait until after the July, 2014 letter from the respondent to raise those issues. What we make of all this is that indeed there is absolute need for any person alleging misrepresentation or fraud to properly particularise the details as much as possible. To raise such issues, however, does not require one to have absolute proof. In the present case, it has been demonstrated that before the second action, the appellants were already of the suspicion that the respondent had engaged in acts of dishonesty and J19 misconduct in regard to their account. They could have raised the issue of misrepresentation and fraud in the second action, no matter how unconvincing it may have been at face value and seek an explanation from the respondent. They did not have to wait for evidence to be delivered to them by the respondent in the way they claim it did in the letter of 11th July, 2014. In our view therefore the issues of misrepresentation and fraud could have been raised in the second cause, but were not in fact raised. They are therefore res judicata in the second sense in which the expression res judicata is given in Black’s Law Dictionary as we have quoted it above. Those issues could therefore not be raised in a subsequent action. Ground one of the appeal therefore fails. Ground two of the appeal alleges misdirection on the part of the lower court in holding that the third action was res judicata. According to the appellant’s learned counsel the issues raised in the third action were not determined on the merit nor were those issues raised in the second action and determined on the merits. The learned counsel impugns the lower court’s finding that the appellants were aware of the fraud and misrepresentation at least a month before the ruling J20 in the second action but chose not to use that opportunity. Counsel further argued that the appellants’ claim that they were not aware of the misrepresentation is not false. The learned counsel submitted that the appellant’s letter of 4th February, 2013 was never responded to by the respondent and that its contents remained a mere allegation - until the 11th July, 2014 when proof of misrepresentation and fraud was furnished by way of response to that letter. In view of the need for misrepresentation and fraud to be pleaded with due particularity and strictness under Order 59/11/17 of the White Book it follows that such allegations could not be raised in any meaningful way before the letter of 11th July, 2014. Counsel contended that a mere allegation where no trial has taken place or the matter determined on the merit, cannot properly ground a defence of res judicata as the court below did. Mr. Gondwe also referred us to paragraph 1529 of Halsbury’s Laws of England, vol. 16, 4th ed. on the operation of the doctrine of res judicata. The learned counsel went on to make additional argument and quote various authorities on how the court assists parties J21 who founded their cases on immoral or illegal acts. More pertinently, he invoked public policy, arguing that public policy demands that the matter should be allowed to proceed to trial to ensure that justice is done. We were urged to uphold ground two of the appeal In response to the arguments on ground two, the respondent’s learned counsel supported the lower court judgment. He referred us to Order 18 rule 19(1) of the Rules of the Supreme Court (White Book) on the power of the court to dispose of a matter that offends that provision. He also quoted what was stated by this court in Development Bank of Zambia and Another v. Sunvest Ltd. and Another5 that: The court disapproves of the commencement of a multiplicity of actions over the same matter, as well as the pursuit of other steps during the action. The objection to the bank’s action applies equally to the respondent’s commencement of action while one is pending To the same intent Mr. Chonta also drew our attention to our statement in Kelvin Hang’andu & Co. v. Mulubisha6 where we abhorred forum shopping and abuse of court process. Counsel also quoted from Mobil Oil (Z) Ltd. V. Malawi Petroleum Control J22 Commission7, from the learned authors of Osborns Concise Law Dictionary and from Bank of Zambia v. Jonas Tembo and Others8 on res judicata. In regard to ground two, Mr. Gondwe, in response submitted that the issues raised by the appellant in the second and third actions had not been determined on merit as the appellants had no opportunity to litigate the same. He essentially reiterated arguments already made. We have considered the arguments of the parties around this ground of appeal. Ground two in our view raises an issue that is not materially different from that raised in ground one. The lower court is faulted for finding that issues raised in the third action were res judicata given that those matters were not determined on the merits in that cause nor were they so determined in the second action. We have already explained, in regard to ground one, that an issue that could have been raised in an earlier action but was in fact not raised could be regarded as res judicata. That position is settled. The argument here, as we understand it, is however slightly different. The point that was made by the J23 appellants’ learned counsel was that the second action itself was determined, not on its merits, but on an interlocutory basis, and therefore that as no trial on the merits took place in that cause, there can never be a justifiable defence of res judicata. Our understanding of the concept of res judicata as it applies to the second action is that it is the second limb of res judicata as we have earlier on explained it, rather than the first, that is relevant. The first limb of the concept of res judicata related to a matter actually heard and determined. Such a matter cannot be a subject of a subsequent action or determination by the same or another court of similar jurisdiction. The second limb, and this is the one which is relevant for purposes of this ground, is that a matter that could have been raised, but was never in fact raised, is also res judicata. Throughout these proceedings, the argument of the respondent has been that the appellants should have raised the issue of fraud and/or misrepresentation in the second action. We have already found under ground one that indeed the appellants could have raised those issues but did not. J 24 The significant point here is not whether those issues could have been considered on the merits in that action. It is that they were not raised in the action. If that action, as turned out to be the case, was determined and concluded only on an interlocutory basis, that could only make the appellants’ claim that the issues of misrepresentation and/or fraud were not determined on the merits and therefore were not res judicata, even stronger. In that instance, those issues would have been raised and would have been a part of the issues presented for determination by the court in the second action. The position is however different here given that the issues were not an integral part of the matters presented for determination in the second cause. In our considered view, the point is that misrepresentation and fraud were not raised in the second action. They should have been raised. They are therefore res judicata. It is inconsequential how the second action was determined. Ground two of the appeal is therefore without merit and it is dismissed. J25 In support of ground three of the appeal, it was submitted by Mr. Gondwe that he would repeat the arguments made in respect of ground one. He submitted further that the court below failed to take note of the claims that owing to the misrepresentations and/or fraud, not only was the judgment obtained fraudulently but the respondent actively by misrepresentation thwarted the appellants from exercising their equity of redemption contrary to section 15(1) of the Conveyancing and Law of Property Act, 1881 in relation to the mortgaged properties sought to be enforced after they had sourced funds, which were more than adequate to clear the debt owed to the respondent. The respondent in reaction to the arguments under ground three merely reiterated the arguments made in respect of grounds one and two. Our understanding of the appellants’ complaint under this ground is that the lower court should not have found that there was a multiplicity of actions given that the third action was premised on misrepresentation and fraud. Our view is that this ground raises nothing materially different from what has been J26 considered under earlier grounds. We have already stated that all the circumstances point to the fact that an opportunity existed for the appellants to bring up the issues of misrepresentation and fraud in the second cause. That opportunity was allowed to go begging. There is hardly anything new that this ground introduced. We can now comment generally on the appellants’ grievance. The appellants’ case in fact parallels most closely that of Muyawa Liuwa v. Attorney-General11, in that case we had rendered a judgment in which we dismissed the applicants’ case on the merits. He later emerged with a series of motions seeking to reopen the case. Those motions were all dismissed. He came back to us on a fourth motion claiming that the High Court judgment was obtained by fraud. His motion before us was dismissed for, among other things, being an abuse of court process. We quoted in that case the English Ampthill Peerage Case12 where the court held that: English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed on the rights of citizens to open or to reopen disputes.... Any determination of disputable facts may, the law recognizes, be imperfect: the law aims at J27 providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book .... For a policy of closure to be compatible with justice, it must be attended with safeguards; so the law exceptionally, allows appeals out of time; so the law still more exceptionally allows judgments to be attacked on grounds of fraud .... But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved. We expressed similar sentiments in BP Zambia Pic v. Interiand Motors Limited13 where we Stated as follows: For our part, we are satisfied that, as a general rule, it will be regarded as an abuse of process if the same parties relitigate the same subject matter from one action to another or from judge to judge. This will be so especially when the issues would have become res judicata or when they are issues which should have been resolved once and for all by the first court ... in conformity with the court’s inherent power to prevent abuses of its processes. A party in dispute with another over a particular subject should not be allowed to deploy his grievances piecemeal, in scattered litigation and keep hauling the same opponent over the same matter before various courts. The administration of justice would be brought into disrepute if a party managed to get conflicting decisions or decisions which undermine each other from two or more different judges over the same subject matter. Our view is that the grievance of the appellants against the respondent has effectively been the same and could have, J28 with due diligence, been properly laid out in earlier actions. We think, with respect to counsel for the appellant, that ground three of the appeal is bereft of merit. Ground four faulted the lower court for not taking into account the fact that due to the respondent’s misrepresentation, the appellant failed to exercise its equity of redemption leading to a judgment obtained by misrepresentation and fraud. The learned counsel repeated the arguments made under ground three. Additionally, he quoted from Bullen and Leake and Jacob’s Precedent of Pleadings at page 453 where the learned authors state that: Damages. The measure of damages for fraud extends to compensate the plaintiff for all the loss he has suffered, i.e. the defendant is bound to make reparation for all the actual damages flowing from the fraudulent representation (Doyle v. Olby (Ironmongers) Limited9) The learned counsel prayed that we uphold this ground of appeal. The respondent’s reaction to ground four of the appeal was merely to repeat the arguments made in respect of ground one and two. J29 Granted what we have stated under ground three of the appeal, it follows that ground four cannot have any better fate. It is doomed to fail and we dismiss it. The result is that the appeal is dismissed. The respondent shall have its costs. Dr. M. MALILA, SC SUPREME COURT JUDGE C. KAJIMANGA SUPREME COURT JUDGE M. C. MUSONDA, SC SUPREME COURT JUDGE