Ethel Brome and Ors v Fredrick Chituta (2022/HP/1213) [2024] ZMHC 124 (11 June 2024)

IN THE HIGH COURT OF ZAMBIA ~T THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ETHEL BROME CHARMAINE BROME TIONENJI BROME AND FREDRICK CHITUTA DEFENDANT BEFORE HON. MRS. JUSTICE G. C. CHAWATAMA ON lQTH J UNE, 2 024 - IN CHAMBERS For the Plaintiff For the Defendant Mrs. W. S. Kakondo - Stasion Oliver & Kennedy Legal Practitioners, Mesdames Sil & Kay Advocates Mr. T. Chali - Tresfo rd Chali Legal Practitioners (- CASES REFERRED TO : 1. 2 . 3. 4. 5. Mukubika Mukubilca + Four Others V Nkwilimba Choobana Lubinda+ 5 Others 2003 Z. R. 55 Development Bank of Zambia and Another V Sun vest Limited and Another 1995-1997 Z. R. 187 BP Zambia PLC Vinterland Motors Limited 2001 Z. R. 37 Valetine Webster Chansa Kayope v The Attorney General S. C. Z Judgment No . 18 of 2 011 Kelvin Hang'andu and Company (A firm) V Web by Mulubisha 2008 Z. R. 82 Vol. 2 S. C. AUTHORITIES & OTHER WORKS REFERRED TO: 1. The Limitation Act of 1939 2. The Rules of the Supreme Court (White Book) 1999 Edition 3. The High Court Act Chapter 27 of the Laws of Zambia 4. Zambian Civil Procedu re: Co mmentu ry and Cases l This action was commenced by way of writ of summons accompanied by a statement of claim. The plaintiff's claim is for- 1. A declaration that by reason of the breach by the defendant the plaintiffs are no longer bound to perform the contract; 2. A declaration that the deposit of K40,000.00 paid under the said agreement has become forfeited to the plaintiff; 3. An order that the defendant's do deliver up possession of the said property to the plaintiff forthwith; 4. A declaration that the plaintiff is entitled to resell the said property and recover any loss on such resale from the defendant; 5. Damages for breach of contract; 6. Interest on all sums found due; 7. Any other relief the court deems fit and 8. Costs. The memorandum of appearance of defence and counter claim IA • were filed on the 2 nd September, 2022. On the 12th October, 2 0 2 2 summons for consolidation of action pursuant to section 13 of the High Court Act Chapter 27 of the Laws of Zambia was filed. This was for the consolidation of cause number 2022/HP/ 1213 and cause 2022/HP/ 1211. The reasons for this position are as contained in the affidavit in support deposed to by the defendant Fredrick Chituta. On the 11 t h May, R2 2023 a notice of motion to raise a preliminary issue and to dismiss counter claim on a point of law pursuant to Order 14A Rule 1 (a)(b) as read together with Order 33 Rule 3 and 7 of the Supreme Court Rules of England 1965 (Whi t Book 1999) Edition was filed. The reason for doing so is for the court to determine whether the defendant's counter claim is statute barred in light of the provisions of the Limitation Act of 1939. The plaintiff among others relied on the affidavit in support of notice of motion to raise a preliminary issue and to dismiss counter claim on a point of law deposed to by Ethel Brome. It is a fact that the defendant among the claims in the counter claim included an order for payment of K40,000.00 being the value of the cattle, goats , sheep, fowls and pigs slaughtered by the plaintiff's dogs. In paragraph 22 the defendant stated that according to his IA w computation he had finished paying what he owed the plaintiff and had over paid the plaintiffs by K16,000.00. Upon the defendant's own admission in paragraph six (6) of his affidavit in opposition to notice of motion to raise a preliminary issue and to dismiss counter claim on a point of law deposed that he has been advised by his lawyer and verily believe it to be true that his claim for twenty four thousand kwacha K24,000.00) 1s R3 statute barred. Further in paragraph seven (07) that he has been advised by his lawyer and verily believe it to be true that his claim for Kl6,000.00 is not statute barred. The evidence before me which evidence was not disputed was that the incident for which the defendant was claiming K24,000.00 occurred some time in 2012. Meaning the incident occurred nine years after the date when the claim has been raised. The plaintiff was on firm ground when she relied on section 2 of the Limitation Act of 1939 which provides that: "2(1) The following actions shall not be brought after the expiration for six years from the date on which the cause of action occurred; that is to say- (a) Actions founded on simple contract or tort. " The respondent's counter claim as far as the plaintiff is concerned is statute barred as it has been brought outside the six (6) year period prescribed by the Limitation Act of 1939. However, despite - conceding that the refund of the twenty four thousand kwacha for the slaughter of his animals by the plaintiff's dogs the defendant has stood his ground that his claim for sixteen thousand kwacha being an over payment he claimed be paid on the purchase price for the sale of a five (5) acre plot the same is not statute barred. I have observed that although the defendant's claim in part was for an order for payment of K40,000.00 being the value of the R4 cattle, goats, sheep, fowl and pigs slaughtered by the plaintiffs dogs. In his affidavit to notice of motion to raise a preliminary issue and to dismiss counter claim on a point of law he separated the amount into two. That is K24,000.00 for the slaughter of his animals and K 16,000.00 being a claim for a refund he alleges is owed to him for an over payment. I note that in paragraph 21 and 22 of his defence h e split the figures stating that the value of the animals slaughtered is K24 ,000.00 whilst the over payment was K16 ,000.00. For this reason, although t he claim for K24 ,000.00 the value of the animals slaughtered is statute barred the same cannot be said for the claim of K16,000.00. The court is of the view that on this amount the court ough t to hear the parties and a decision rendered on merit. On the application for consolidation of actions that is cause 2022/HP/1213 and cause 2022/HP/1211. According to the defendant in both of land F / 196a/ F / 4. That he is down as an unkn own pers on. That he seeks to be granted F / 196a/ F / 4 which the plaintiffs want to repossess in the action whose cause No. is 2022/HP/ 1211. That the defendant in cause 2022 /HP/ 1211 is the seller to him of part of F / 196a/ F / 4 after the land was given back to h im in compliance with a judgment. Produced was copies of the contract of sale agreement to return the land and the High Court ruling dated 3 rd January, 1995 and marked FC 1. That in both cases, the plaintiffs seek the possession RS ~ - - - -- - -- - - - of the land known as F / 196a/ F / 4 . In his skeleton arguments the defendant referred the court to section 13 of t he High Court Act states in part that: "In every civil cause or matter which shall come in dependence in the court, law and equity shall be administered concurrently and the court, in the exercise of the jurisdiction vested in it, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies or reliefs whatsoever, interlocutonJ or final, to which any of the equitable claim or defence properly brought forward by them respectively or which shall appear in su ch caus e or matter, so that, as far as possible, all matters in controversy between the said parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of such matters avoided and in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail. " I was ref erred to the case of Mukubika Mukubika + Four Others V Nkwilimba Choobana + 5 Others1 in which the court stated as follows: "Both parties app ear to us t o be agreed on the principle governing consolidation namely; common question of law or facts and rights to re lief arising out of the same transaction. The rationale for consolidation, namely s a ving of cos ts, is also agreed. What is in issue here is whether t he facts raise the question of multiplicity or duplicity of actions. On behalf of the appellants the argument is that there were here two para llel, d uplicat e actions and therefore nothing to consolidate ." R6 I was also referred to the case of Development Bank of Zambia and Another V Sunvest Limited and Another2 where it was stated that: "We also disapprove of parties commencing a multiplicity of procedures and proceedings and indeed a multiplicity of actions over the same subject matter. The objection raised by the borrowers in this action to the Bank pursuing the remedy of self-redress in this action, that an action was pending, applies with equal force to the whole idea of the borrowers comm e n cing a fresh action when there is already another one pending in the Court with the result that the various Courts may end up making various conflicting and contradictory decisions because the parties have started another action in the Courts." Other cases I was referred to included BP Zambia PLC v interland Motors Limited3 in which it was held that: "A party in dispute with anot her 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." In Valetine Webster Chansa Kayope v The Attorney General4 where it was held that: "To achieve fi nality and avoid multiplicity of proceedings on these set of facts, the learned trial Judge should have determined the appellant's counter-claim. He erred in law by refusing to determine it and advising the appellant to commence fresh proceedings on the general list. Commencing fresh proceedings would have amounted to multiplicity of actions and would be against section 13 of the High Court Rules and R7 Development Bank of Zambia and Another V Sunvest Limited and Another." Lastly, I was referred to the case of Kelvin Hang'andu and Company (A firm) v Webby Mulubisha 5 where the Supreme Court held as follows: "Once a matter is before court in whatever place, if that process is properly before it, the court should be the sole court to adjudicate all issues involved, all interested parties have an obligation to bring all issues in that matter before that particular court. Forum shopping is abuse of process which is unacceptable." In an affidavit in opposition to summons for consolidation of actions Ethel Brome the 1st plaintiff deposed as follows: 1. That in response to the contents of paragraph 3 to 8 of the affidavit in support she wishes to state that Cause No. 2022/HP/ 121 3 was commenced against the defendant as a result of a breach of agreement by the defendant for the sale of a proposed subdivision on stand No. 196a/F/4/2 measuring in extent of 10 acres. There is now produced and shown to me marked EB/1 true copy of the writ of summons and statement of claim. 2. That further to paragraph 4 above, she wishes to state that Cause No. 2022/HP/ 121 1 on the other hand is a separate and district issue of squatters who encroached on a portion of Stand No. 196a/ Fl 4/legally owned by herself, the 2 nd and 3 rd plaintiff There is now produced and show to me marked R8 EWB/2 and EB/3 true copy of the certificate of title and Originating Process for Summary Possession against the respondent, Timothy Mulenga alleged squatter. 3. That she wishes to s tate that that under cause no. 2022/HP/ 1211 the defendant and respondent are different and the causes of action are clearly distinct and not arising from the same transaction or series of transactions. 4. That she further wishes to state that the respondent, Timothy Mulenga under cause No. 2022/ HP/ 1211 through his lawyers filed a notice of motion to raise preliminary issue and the said motion was argued and currently pending delivery of ruling before Hon. Justice G. Salasini. There is now produced and shown to me marked EB/4 true copy of the said application filed by the respondent's lawyers in cause No. 2022/HP/ 1211. 5. That as regards paragraph 7 of the affidavit in opposition she wishes to state that the issues raised in the said paragraph are distinct from this cause currently pending ruling before Justice G. Salasini fallowing hearing on a notice to raise preliminary issue filed by the respondent, Timothy Mulenga in the said matter as stated in paragraph 7 above. 6. That she was reliably informed by Counsel and verily believe the same to be true that the defendant's application for consolidation of actions is premised on a wrong legal proviswn. R9 • 7. That she deposes to this her affidavit verily believing that the same to be true and correct to the bes t of her knowledge. In the skeleton arguments filed by the p laintiffs the court was referred to Order 4 Rule 9(1) of the Rules of the Supreme Court (White Book) 1 999 Edition which states that: "Where two or more causes or m atters are pending in the same division and it appears to the court- 1. That some common question of law or fact arises in both or all of them, or (b)That the right to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or (c) That for some reason it is desirable to make an order under this paragrap h The Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after determination of any other of them. " I was further ref erred to the Zambian Ci vil Procedu re: Commentary and Cases by Dr. Patrick Matibini with respect to consolidation of matters where at page 323 he explains that: "The primary purpose of consolid ation is to have issues that are substantially similar, tried in a single hearing, in order to save time and costs that ensue from RlO That it has been demonstrated that the actions do not have common questions of law and facts or the rights to relief being claimed. On whether or not the same rights or relief are likely to arise out of the two actions, that under this action the plaintiff seeks damages for breach of con tract and recovery of a proposed subdivision on stand No. F / l 96a/F / 4. That the plaintiffs under cause No. 2022/HP / 1211 seek an order for eviction of the respondents and other persons unknown occupying a portion of stand No. F / l 96a/ F / 4 and Order for possession of the said property. On the irregularity of the defendant's application to consolidate actions the court was referred to Order 4 Rule 9(1) of the Rules of the Supreme Court. That the defendant has cited section 13 of the High Court. It was submitted that the heading of the summons is highly misleading. That in terms of our rules and practice applications for consolidation of action are brought pursuant to Order 4 Rule 9(1) of the Rules of the Supreme Court. It was further submitted that it is always necessary, on the making of applications for the summons or notice of application to contain a reference to the order or rule number or other authority under such relief is sought. R12 I have taken into consideration the contents of the affidavit in support of summons for consolidation of action, the exhibits, filed as well as the def end ant's skeleton arguments. I have also taken into consideration the affidavit in opposition to summons for consolidation of actions, the exhibits filed as well as the plaintiff's skeleton arguments in opposition. THE LAW The basis for this application is as provided for under Order 4 Rule 9(1) of the Rules of the Supreme Court (White Book) 1999 Edition in which it is stated that: "Where two or more causes or matters are pending in the same division and it appears to the court- 2. That some common question of law or fact arises in both or all of them, or (d)That the right to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or (e) That for some reason it is desirable to make an order under this paragrap h The Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after determination of any other of them." R13 It is a fact that there are two matters before the High Court General list cause 2022/HP/ 1211 before Judge Salasini and 2022 /HP/ 1213 before this court. According to the def end ant the plain tiffs commenced this action on the 9 th August, 2 02 2 against the defendant's claiming among other issues, possession of stand No. F / 196a/F / 4. That on the same day the plaintiff commenced an action under cause 2022/HP / 1211 against Timothy Mulenga claiming possession of the same stand No. F/196a/F/4). Exhibit is a sale agreement between Ethel Brome Mbaya the seller and Fredrick Chi tu ta the buyer. The seller agreed to sale farm number 196a sub 4 and the buyer agreed to buy the said property on the 11 th September, 2011. The terms and conditions were specified in the agreement. According to the plaintiff cause No . 2022/HP / 1213 was commenced against the def end ant as a result of a breach of agreement by the d efenda nt fo r the sale of a proposed subdivision on stand No. 196a/ F /4/ 2 mea suring in extent of 10 acres. That cause No. 2022/HP/ 1211 is a separate and distinct issue of squatters who encroached on a portion of stand No. 196a/ F / 4 legally owned by the 1s t , 2 nd and 3 r d plaintiff. That under cause 2022/HP/ 1211 the defendant and r espondent are different and the causes of action are clearly distinct and lot arising from the R14 same transaction or series of transactions. That what is pending before Judge Salasini under cause 2022/HP/ 1211 1s an application to rais e a p reliminary issue by the respondent Timothy Mulenga. Further that there is a ruling that is pending. From the evidence before me it is my considered view that the two actions, actions do not have common questions of law and facts. In the matter before me the plaintiffs claim is clear the declaration sought is for a breach of contra ct which may or may not result in the forfeiture of the amount p a id, possible delivery of possession for the said property the possible entitlement to resell the property and the possible entitlement to resell the property and the possible damages for breach of con tract . Exhibit EB13 the affidavit in support of originating summons where the applicants are the same as the same plaintiffs before me but where the r espondents in EB13 are Timothy Mulenga and Other persons unknown whilst in the matter before me the defendant is Fredrick Chituta. Mr. Chituta wants the court to term him as one of the unknown persons. If this is so then he should join the proceedings before Judge Salasini as a known person. RlS e It is clear that caus e No. 202 2/HP / 1211 was occasioned as a result of an alleged encroachment. It follows that reliefs sought out of the two actions are not the same. It is my considered view that it will not be just for me to order the consolidation of these two matters. The primary purpose of consolidation is to have issues that are substantially similar; tried at a single hearing. I can und erstand the logic behind this as it is done to save time and costs and ensure that we avoid multiplicity of actions. However, as stated the right to relief and the causes of action do not arise from the same act or transaction nor is there is a common question of law or fact bearing sufficient importance in proportion to the rest of the subject matter of actions to render it desira ble that the whole should be disposed at the same time. The application is dismissed with costs to the plaintiff to be assessed if not in agreement. Leave to appeal to the Court of Appeal is hereby granted. DELIVERED AT LUSAKA THIS lQTH DAY OF JUNE, 2024. ~~ HIGH COURT JUDGE R16