Desai v First Alliance Bank Zambia Ltd (SCZ Appeal 110 of 1999) [1999] ZMSC 95 (3 December 1999)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL No. 110 OF 1999 HOLDEN AT KABWE AND LUSAKA (CIVIL JURISDICTION) BETWEEN: DIPAKKUMAR AMRATLAL DESAI APPELLANT AND FIRST ALLIANCE BANK ZAMBIA LIMITED RESPONDENT Coram: Chirwa, Muzyamba and Lewanika, JJS 2nd November and 3rd December 1999 For the Appellant: M. F. Sikatana, Veritas Chambers For the Respondent: C. Hakasenke, Hakasenke and Company JUDGMENT Muzyamba, J. S. delivered the judgment of the court This is an appeal against a refusal to join Claydon Hakasenke, Counsel for the respondent and Fred Gabriel, a certificated bailiff as parties to cause No.l996/HP/4388 between First Alliance Bank Zambia Limited and Dipakkumar Amratlal Desai. The history of this matter is that the appellant obtained a loan of KI 90 million from the respondent and as a security for repayment of the loan he mortgaged his property S/D H of S/D 33 of FarmNo.488a Twin palm Lusaka. The mortgage deed is dated 2nd August 1995. Pursuant to the mortgage deed and due to crystallisation of the mortgage the appellant executed a deed of assignment conveying the property to the respondent. The deed of assignment was registered on 6th December 1995. The appellant remained in occupation of the house and on 25th October 1996 the respondent issued originating summons for possession of the property. On 27 February 1997 the J2 respondent's advocate prepared and signed a warrant of distress pursuant to the Law of Distress Amendment Act 1888 directed to Fred Gabriel a certificated bailiff to execute. It would appear that the warrant was executed and this prompted the appellant to commence an action under cause No.l997/HP/524 against the respondent, the respondent's advocate and the bailiff for damages arising out of execution of the warrant. For some reason the action was discontinued. Following the discontinuance of that suit the appellant applied to join the respondent's advocate and the bailiff as parties to the cause now appealed against for the purposes of counter-claiming for damages arising out of execution of the warrant of distress. The application was refused hence this appeal. Mr. Sikatana had originally filed two grounds of appeal but since ground 2 contained narratives and legal arguments contrary to rule 58 (2) of the Supreme Court Rules, Cap 25 he abandoned it and argued ground 1 only. Rule 58 (2) provides: (2) The memorandum of appeal shall be substantially in Form CIV/3 of the Third Schedule and shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the judgment appealed against, and shall specify the points of law or fact which are alleged to have been wrongly decided, such grounds to be numbered consecutively. The ground argued reads: 'The learned trial Judge misdirected herself by refusing to grant an order to join Claydon Hakasenke and Fred Gabriel to the action when the appellant's defence includes a counter-claim against the respondent and the named persons who are agents of the respondent.' He argued that the appellant discontinued the other cause to avoid a multiplicity of causes and to save costs. Further that the joinder would not in any way prejudice the respondent. In response Mr. Hakasenke argued that an action commenced by originating summons requires no pleadings whereas an action for damages requires pleadings. That since the alleged counter-claim is for damages this would involve pleadings and therefore that if J3 there was a joinder of parties this would prejudice the respondent as the action for possession of the mortgaged property would be prolonged. We have considered the pleadings and the ruling of the learned trial Judge and the submissions by both learned Counsel. In refusing the application this is what the learned trial Judge had to say at pages 12 to 13 of the record.: "I have given serious consideration to this application and to the submissions of Counsel for the Applicant and Counsel for the respondent on behalf of their clients and it is my considered view that it would be undesirable and would not be in the interest of justice to join the parties sought to be joined to this action for the following reasons: i. This being an action for possession of property commenced by an originating summons supported by an affidavit, ordering joinder of the parties sought to be joined so that the defendant can persue his counter-claim against them and the plaintiff in this cause may entail exchange of pleadings and a trial since the applicant's counter-claim is for damages. This would cause unnecessary delay in the disposal of the plaintiffs action for possession in this cause - order 15/5/1 of the Rules of the Supreme Court refers. ii The counter-claim for damages would better be dealt with in the discontinued action which the applicant can have restored and proceed there-from." We entirely agree with the learned Judge's reasoning and whether or not a discontinued action can be resurrected and proceeded upon is not an issue. What is important is that the appellant is not estopped from commencing a fresh action. In addition, to join an : J4 : advocate to his client as a party would certainly prejudice a client, in this case the respondent. The appeal must therefore fail. It is dismissed with costs to be agreed upon failing which to be taxed. D. K. CHIRWA SUPREME COURT JUDGE ’ WM MUZYAMBA ’ SUPREME COURT JUDGE D. M. LEW ANIKA SUPREME COURT JUDGE