Elvis Mtonga v Bank of Zambia (Appeal No 93/2009; SCZ/8/85/2009) [2013] ZMSC 70 (6 December 2013)

IN THE SUPREME COURT FOR ZAMBIA J1 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: SCZ/8/85/2009 Appeal No 93/2009 ELVIS MTONGA AND APPELLANT BANK OF ZAMBIA RESPONDENT e CORAM: Chibesakunda, Ag CJ, Mwanamwambwa and Phiri, JJS On 24 th April, 2012, and 6 th December, 2013 FOR THE APPELLANT Mr. A. Mwansa of Messrs AMC Legal Practitioners FOR THE RESPONDENT Dr. L. Kalin de, In-house Legal Counsel JUDGMENT Chibesakunda, Ag. C. J, delivered the Judgment of the Court. Cases referred to: 1. Beddall v Maitland [1881] 17 Ch D 181 2. Development Bank of Zambia and KPMG Peat Marwick v Sun vest Limited and Sun Pharmaceuticals Limited (1995-1997) ZR 187 3. Fleming v Loe [1901] 2 Ch 594; [1902] 2 Ch 359 4. BP Zambia Plc v Interland Motors (2001) ZR 37 5. Mukumbuta Mukumbuta and others v Nkwilimba Choobana and others SCZ Judgment No. 8 of 2003 I ,' l J2 Legislatio:R. referred to: 1. High Court Act Chapter 27 of the Laws of Zambia, Order 30 rule 14 and Order 27 rule 3 2. The English Law (Extent of Application) Act Chapter 11 of the Laws of Zambia Works referred to: 1. Order 88, 15/2/2 andlS/2/6 RSC, White Book 1999 Edition This is an appeal against an Order of the High Court dated 2 nd March, 2009 dismissing the Appellant's action for duplicity and multiplicity of actions. The Appellant (Applicant in the Court below) commenced proceedings by Originating Summons on 15 th September, 2008 claiming the following: i. That the Applicant (Appellant) having paid the Respondent (Respondent in this Court) all amounts secured from the Respondent under mortgage deed dated 1 ()th January, 1996 and a Further Charge dated 17th - November 1998 and registered the same date, is entitled to the discharge, redemption or re lease from the security of the said Mortgage and Further Charge registered by the Respondent on Subdivision 409 of subdivision A of Farm No. 378A Avondale, Lusaka, the property of the Applicant. ii. Damages and interest thereon iii. Costs , , ' I J3 iv. Any other relief the Court may deemjzt. The undisputed facts are that the Appellant was an employee of the ls__espongent Bank {rom 16 th August, 1993 to l_s~ October_, 2007 when he separated from the Bank through resignation. During his period of service, the Appellant secured a loan in the sum of K30,000 ,000.00 by way of a mortgage dated 10th January, 1996 over Subdivision 409 of subdivision A of Farm No. 378A Avondale , Lusaka. He obtained another loan of K7,460,000.00 through a Further Charge dated 17th November, 1998 secured by the same property. The Appellant deposed, in his Affidavit in Support of Originating Summons, that upon separation, he instructed Kwacha Pension Trust Fund, through his Advocates, to remit sum of K32,575,027.40 to the Respondent Bank to redeem the loans. That after the Kwacha Pension Trust Fund confirmed having remitted that amount to the Respondent Bank, the Appellant's Advocates - wrote to the Respondent to discharge the mortgage. This was not done prompting the Appellant to commence action against the Respondent. In response, the Respondent Bank deposed in an Affidavit 1n Opposition sworn by Peter Mbewe, an Assistant Director, Human Resources Administration, that the Appellant was granted paid study leave to pursue a four-year Doctorate Degree programme ,' I j J4 frorn June 2002 to June 2006. Thro ughout that period, the Appellant continued to receive his monthly salary in addition to maintenance allowance, tuition, air tickets and book allowance. Further, the Appellall_t signed a Bondiqg Agreement which__bound him to remain in service with the Respondent Bank upon completion of his studies, for an equal duration. That in the event that he failed to return or remain in service , all amounts paid out would immediately become recoverable from him. The Respondent deposed that on return, the Appellant only worked for 10 months , from January 2007 to 1st October, 2007 , before he resigned. Being in default, the Appellant became indebted to the Respondent Bank 1n sum of Kl,452,988 ,353.29 , notwithstanding that he had repaid K32,575,027.40 for the mortgage. Mr Mbewe deposed that Respondent Bank commenced proceedings against the Appellant on 27 th February, 2008 under Cause No 2008/HP/0197 to recover the Kl,452,988 ,353.29. Further, the Respondent Bank was granted, in the same cause, an - Interim Order of Preservation of Subdivision 409 of subdivision A of Farm No 378A Avondale, Lusaka, the same property which is the subject of the present proceedings, until final determination of the substantive matter. From the record, when the matter in Cause No. 2008/HP/0361 came up for hearing before the learned Commissioner on 13 th October, 2008, Counsel for the Appellant was not in attendance. \ ' JS Hearing was adjourned to 16 th February, 2009 and again Counsel for the Appellant was not before the Court. The learned Commissioner then proceeded to hear the matter on the merits pursuant to Order 30 rule 4 of the High Court_ Eules Cb.apter 27. This Order relates to procedure when parties fail to attend hearing. During hearing, Counsel for the Respondent prayed that the Court dismisses, for duplicity and multiplicity of actions, the Appellant's application to discharge the mortgage. The Respondent argued that the same matter and the same parties were before another Court, and that the same property was a subject of a Preservation Order before the other Court. Subsequently, the learned Commissioner made the following order: "Upon hearing Counsel for the Respondent and upon reading the affidavits ft led herein by both parties it is hereby adjudged and ordered that this matter is dismissed for duplicity and for multiplicity of actions." e Afterwards, Counsel for the Appellant made an application for an Order to Review the Order to Dismiss Action but this was also dismissed by the learned Commissioner. The Appellant is now before this Court challenging the Order to dismiss his action for duplicity and multiplicity of actions. He raised the following ground of appeal: • ' , I J6 i. That the learned trial Judge misdirected himself tn both law and fact when he held that the Appellant's case amounted to duplicity of actions as the same matter with tl_:!e same facts was being considered under another cause before another Judge of the High Court. During hearing of the appeal, both Counsel applied for leave to file written Heads of Argument. This Court granted the application and the two parties filed their Heads of Argument on 7 th and 10th May, 2012 respectively on which they relied. The gist of the submissions by Mr Mwansa, Counsel for the Appellant, was that there was no duplicity as the two causes of action namely Cause No. 2008/HPC/0361 and Cause No 2008/HP/0197 were distinct actions commenced by the parties in their own rights. He submitted that Cause No. 2008/HPC/0361 was a mortgage action commenced in the Commercial Registry pursuant to Order 88 of the Rules of the Supreme Court (RSC) - Whitebook 1999 Edition while Cause No. 2008/HP/0197 was an action commenced in the Principal Registry to recover debt. Counsel submitted that the learned trial Judge could not order joinder of these causes of action and neither could the Appellant counter claim under Cause No 2008/HP /0197 because of the distinctive nature of the two causes of action. \ , J7 In response, Dr Kalinde, Counsel fo r the Respondent submitted that the Appellant ought to have counter-claimed instead of commencing a separate action in the commercial registry, especially that he 4ad f~ ll knowledge that !_he mortg.§:ged prop~rty was already subject of a Preservation Order by another court. He cited Beddall v Maitland 1 to buttress the proposition that a counter-claim ought not to be "an action of the same nature as the original action." Counsel also referred us to Order 15 rule 2 , RSC (Whitebook) 1999 Edition. He urged this Court to dismiss the Appellant's claim as it was without merit. Both Counsel cited some of the leading authorities on multiplicity of actions and in particular, Development Bank of Zambia and KPMG Peat Marwick v Sunvest Limited and Sun Pharmaceuticals Limited2 . But Counsel for the Appellant sought to distinguish it from the present case on grounds that the subject matter was different. - We have anxiously considered the evidence on record and the submissions. It was common ground that the Appellant was in the employment of the Respondent Bank from 1993 to 2007 when he separated through resignation. It was also common ground that during the subsistence of his employment, the Appellant obtained two loans in sum of K37,460,000.00 which were secured by a Mortgage and Further Charge over his property Sub-division 409 of Subdivision A of Farm No 378A, Avondale Lusaka. It was also J8 common ground that the Appellant was bound by agreenrent to serve the Respondent for the same duration upon completion of his study programme as he remained on the payroll and continued to e~joy all conditions he was entitled to including sponsorship. It wa~ common ground that the Appellant resigned from the Respondent Bank before completing the bonding period, entitling the employer to recover all such sums expended on him over the four-year period. We take judicial notice that this matter is before another Court (page 23). This Court, therefore, is constrained and shall refrain from determining any substantive issues in that action suffice to say that the Respondent Bank obtained a Preservation Order (page 28) in respect of Subdivision 409 of subdivision A of Farm No 378A, Avondale, Lusaka until the case was finally disposed of. It is also common ground that the Appellant had commenced fresh proceedings before another Court to have the mortgage on the same property discharged, an action which was dismissed and is to be determined before this Court. Mr Mwansa argued with great force that the latter action, Cause No. 2008/HPC/0361 could only be commenced in accordance with Order 88 RSC (Whitebook) 1999 Edition as a mortgage action and as such was distinct from and could not be heard as one cause with an action for debt recovery. From the outset, under our laws mortgage actions are governed by Order 30 rule 14 of the High Court Rules. Also by extension, "in default thereof' and "in - J9 substantial conforrnity" rules in the RSC \Vhitebook 1999 Edition apply, by virtue of Section 10 (1) of the High Court Act Chapter 27 as amended by Act No 7 of 2011 and Section 2(2) of the English ~ aw (Extent of Ap2lication) Act Chapter 11 as amended by Act No 6 of 2011. In the case before us, the action was commenced pursuant to Order 88/ 1 RSC 1999 Edition. We have perused through Order 88 / 1 and state that this Order does apply to this mortgage action. The Order states in the relevant part, "This Order applies to any action (whether begun by writ or originating summons) by a mortgagee or mortgagor or by any person having the right to foreclose or redeem any mortgage, being an action in which there is a claim for any of the following reliefs, namely ... " However, on further reading, we observe that mortgage actions are not exclusively confined to Order 88. Order 88 / 1 / 1 states, "The wide definition of "mortgage action" in r.1(1) gives the misleading impression that the Order will deal generally with mortgage actions so defined. The Order does not do so. The main provisions of the Order apply only to actions by mortgagees of land for possession or payment. (The overwhelming majority of mortgage actions however fall within this class). Even for actions of this limited class the Order is not intended to provide a J10 complete procedural code. Its purpose is to provide additional protection for defendants in actions of this class ... The general provisions of the R . S. C. apply to all mortgage actions. In particular the provisions of 0.28, Originating Summons Procedure, apply to mortgage actions brought by way of originating summons as the great majority are." (Emphasis ours) Therefore , our understanding of the above provisions 1s that while Order 88 RSC 1999 Edition provides for mortgage actions , the authors of the White book have stated that mortgage actions do not necessarily have to be and are not exclusively confined to Order 88. There are other provisions in the Whitebook which may apply depending on the facts of the case and the circumstances. We therefore do not agree with Mr Mwansa's submission that the latter cause , Cause No. 2008/HPC/0361 could not be joined or consolidated with the earlier cause, Cause No. 2008/HP/0197, nor that the Appellant could not have counterclaimed in the earlier - cause , because his claim was a mortgage action which ought to have been and was properly brought under Order 88 RSC . The provisions of the RSC state clearly that other general provisions are still applicable to all mortgage actions. Furthermore , Dr Kalinde argues that the Appellant ought to have counterclaimed since "a counter-claim ought not to be, an action of the same nature as the original action". We find that , . ' J11 there is force in this argurne11t. Order 27 (3) under our High Cou1t Rules Chapter 27 provides for any form of counterclaim. "A defendant in an action may set off, or set up by way of counter-claim ag_ainst th'!_ claim of the plaintiff, any right or claim, whether such set-off or counter-c laim sound in damages or not, and such set-off or counter-claim shall have the same effect as a statement of claim in a cross action so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross-claim." Order 15 / 2 of the RSC puts it more aptly, "A Defendant in any action who alleges that he has any claim or is entitled to any relief or remedy against a Plaintiff in the action in respect of any matter, (whenever or however arising} may instead of bringing a separate action make a counterclaim in respect of that matter, and where he does so he must add the counterclaim to his defence." - (Emphasis ours) Furthermore, there is no bar to hearing causes of action from the general and commercial list if the overall effect is to avoid multiplicity of actions. Order 15/2/2 of the RSC states that an equitable counterclaim could be raised in action at law and a legal counter claim in an action in the Chancery Division. In an English case of Fleming v Loe3 , it was decided that the Chancery Division J12 had jurisdiction to deal Vlith a simple demand of costs on a counterclaim . That decision, however, was reversed on a different foot ing. Th e only time causes of action may be heard separately is if it can be shown that the matters are such as they cannot be conveniently tried together or are glaringly improper or are likely to ca use embarras s m en t t o t h e Defend ant or d elay, in which case the onus is on the Defend ant to so prove. - "In short, if the Defendant has a va lid cause of action 'of any description ' against the Plaintiff, there is no necessity for him to b ring a cross-a ction u nles s his cau se of action is of such a nature that it cannot be conve niently tried b y the same tribunal or at the same time as the Plaintiffs claim." (Order 15/ 1/6 RSC) In light of the afore-stated , we find no basis for the Appellant to have commenced new proceedings before another Court for a e subject matter which was essentially the same , w h e re the p a rtie s were the same and especially that it involved the s a me property , which the Defendant was fully a w are was a subject of a Preservation Order. Arguments that one relates to a mortgage action and the other d ebt recovery do not hold because a Defenda n t can put up a counterclaim on any kind , "whenever and however arising", instead of bringing a separate action. J13 In our view, this is a typical case of multiplicity of actions. As was pronounced in De velopment of Zambia and KPMG Peat Marwic k v Sunvest Limited and Sun Pharmaceutical Limited2 , a nd we m ake no apology in repeating it here, this Court frowns on duplicity and multiplicity of actions . Litigants are strongly discouraged from duplicity and multiplicity of actions of any kind as it is an abuse of the court process . As a way of emphasis, we re s tate the gen eral rule a gainst parties re-litigating the same subj ect m atter from Court to C ourt, and from Judge to Judge, or simply, forum shoppin g a s propounded by Ngulube CJ (as he was th en) 1n BP Zambia Plc v l n t erland Motors4 at page 42, "In conformity with the c ourt's inherent p owe r to p revent 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 on hauling the same opponent over the same matter before various courts, " - The consequence of such deliber a t e and conscious forum shopping has been to condemn advocate s in costs. (Mukumbuta Mukumbuta and Others v Nkwilimba Choobana and others5 ) This rule was established so as not to bring the administration of justice into disrepute by a party obta ining conflicting decisions or d ecisions which undermined each other from two or more diffe rent Judge s over the same subject matter. We find t h a t t h e learned I I .. J14 Connnissioner was on firm ground when he d1sm1ssed the Appellant's action on account of duplicity and multiplicity. We accordil"!gly dis!I}iss this _c!_ppeal for want of merit and o_rder costs in favour of the Respondent to be taxed in default of agreement. L. P. Chibesakunda ACTING CHIEF JUSTICE _R;::.:.:-1/'~~ .. ~u..""a-o..:. SUPREME COURT JUDGE ......... wambwa ii ............. t..... G. S. Phiri "- }\_ . .............. . SUPREME COURT JUDGE