Eureka Construction Limited v The Attorney General and Anor (SCZ Judgment 37 of 2008) [2008] ZMSC 169 (23 September 2008)

IN THE SUPREME COURT OF ZAMBIA SCZ Judgment No. 37 of 2008 (8 02) HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: APPEAL NO. 133/2003 EUREKA CONSTRUCTION LIMITED APPELLANT AND THE ATTORNEY GENERAL RESPONDENT CONSOLIDATED LIGHTING ZAMBIA LIMITED PROPOSED INTERVENING PARTY CORAM: Sakala, CJ., Chirwa and Mushabati, JJS. On 21st May and 23rd September 2008 For t he Appellant No Appearance For t he Attorney General Mr. J. Jala si, Principal State Advocate For the Proposed Intervening Party : Mr. B. Mu tale, SC, of Ellis and Company RULING Sakala, CJ., delivered th e Ruling of the Court . Cases Referred to 1 . Attorney-General Vs Aboubacar Tall and Zambia Airways Corporation Limited {1995-1997] ZR54 2. Bank of Zambia Vs Jonas Tembo and others [2002] ZR 103 ER 353 R2 (803) 3. Trinity Engineering (PVT) Limited Vs Zambia Commercial Bank Limited[1995 -1997} Z. R. 166 This is an application by the Proposed Intervening Party, by way of two motions, fused into one, made pursuant to Order 59 Rule 1(151), Rules of the Supreme Court, 1999 Edition, White Book and pursuant to Rule 67 of the Supreme Court Rules, Cap 25 of the Laws of Zambia. The Proposed Intervening Party is seeking to be joined to these proceedings and is also seeking for the appeal to be reheard and or to alter the terms of the Judgment delivered by this Court on the 29th of March, 2006 1 dismissing the Appellant's appeal and allowing the cross appeal. The application is supported by an affidavit sworn by one Humphrey Mulenga> the Managing Director of the Proposed Intervening Party. Mr. Mulenga deposed that on 29th March 2006, this Court ordered, inter alia, that Stand No. 3718, Kitwe, be surrendered to the State; that the said order had been overtaken by events in that the City Council of Kitwe was initially the registered proprietor of the said property for a term of 99 years; that by way of an under lease dated 7 th February 1972, the said property was leased by the City Council of Kitwe to Atlantic Holdings Limited. Mr. Mulenga further deposed that the said property was on 5 th April, 1972 leased by Atlantic Holdings Limited to the Intending Intervening Party for a term of five years with an option to renew; R3 (804) that thereafter the Proposed Intervening Party took possession of the property and substantially developed it; that by letter of 4 th March 1976, Messrs A. E. Clarke and Company, Advocates of the Directors of the Appellants, who also had proprietary interests in Atlantic Holdings Limited, offered the said property to be surrendered to the State in lieu of payment of fines imposed under the Exchange Control Regulations; that on 6 th December, 1984, the Commissioner of Lands re-entered the said property and issued a Certificate of Termination of the Under Lease between the City Council of Kitwe and Atlantic Holdings Ltd; that subsequent to the re-entry, Stand No. 3718, Kitwe, was on 19th November, 1986 leased to the Proposed Intervening Party for a period of 10 years; that after the expiration of the said lease of 19th November, 1986, the Proposed Intervening Party and then the sitting tenant of the said property were offered another lease over the same property on 15th October 1996 for a term of 99 years. Mr. Mulenga also deposed that the Proposed Intervening Party is now the registered proprietor with a Certificate of Title No. L5726 relating to Stand No. 3718; that the Judgment of this Honourable Court, dated 29th March 2006, was registered at the Lands and Deeds Registry on 11th May, 2006; and that neither the Proposed Intervening Party nor the deponent were aware of the proceedings in relation to that Judgment until on or about 4 th September 2007, when the deponent conducted a routine search at the Lands and R4 (805) Deeds Registry to ascertain the ground rent due and payable in respect of the said property. The affidavit exhibited numerous documents in support of the claim to the said property by the Proposed Intervening Party. There was no affidavit in opposition. The facts leading to this application are that the Appellant had appealed to this Court against the High Court Judgment that ordered that the five properties, among them Stand No.3718, Kitwe, be vested to the State. The appeal was dismissed on 29th March, 2006. In that Judgment, we held that the said properties, including Stand No. 3718, were properly vested to the State. According to the affidavit in support of the Motion, this Court's Judgment was registered at the Lands and Deeds Registry on 11 th May, 2006. At this juncture, we must point out that in the proceedings before the High Court, as well as before this Court, the Proposed Intervening Party was not a party. The Proposed Intervening Party has now in one fused application applied to be joined to the proceedings that were before the Supreme Court and also to rehear the appeal that was before the Supreme Court and or alter the terms of the Judgment of the Supreme Court dated 29th March 2006 on the ground that Stand No.3718, Kitwe, was on 6 th RS (806) December 1984 re-entered upon by the Commissioner of Lands on the ground, inter alia; that the Appellant's interest in the under lease was taken over by the Government as part payment of the fines imposed under the Exchange Control Regulations. Mr. Mutale, the learned State Counsel, for the Proposed Intervening Party, filed detailed written heads of argument in support of the fused application. The arguments were divided into two parts. Firstly; those relating to joinder of the Intervening Party; and secondly; those relating to the rehearing of the appeal and or altering of the terms of the judgment. The written heads of argument were augmented by brief oral submissions. On behalf of the Attorney- General, Mr. Jalasi, the Principal State Advocate, also filed detailed written heads of argument. Both learned counsel cited numerous authorities in their written heads of argument. Since the ultimate outcome of the fused Motion will depend on the view we take on the arguments and submissions relating to the Joinder of the Intervening Party; we propose first to deal with the issue of Joinder of the Intervening Party. In the written heads of argument on behalf of the Proposed Intervening Party, it was contended, in relation to Joinder, that the Proposed Intervening Party was first and foremost seeking to be R6 (807) joined to these proceedings on the ground that it is sufficiently interested in and is the registered proprietor of Stand No. 3718, Kitwe. It was submitted that the Proposed Intervening Party be joined to these proceedings to ensure that all matters in dispute are effectively and completely determined. Order 15 Rule 6 (8) of the Rules of the Supreme Court 1999 Edition, White Book was cited in support of the submission in relation to interventions of persons not parties to the proceedings. It was finally submitted on Joinder that the Proposed Intervening Party has sufficient interest as it is the current registered proprietor of Stand No. 3718, Kitwe. In his oral arguments and submissions, Mr. Mutale, State Counsel, first pointed out that the Intervening Party was applying for leave to be joined to the proceedings notwithstanding that the Judgment was delivered more than a year ago. He pointed out that Order 14 of the High Court Rules states that a party to be joined must show Locus Standi. He submitted that in the instant Motion, the Proposed Intervening Party has interest as the exhibited documents will show that it is the registered owner and a sitting tenant as far back as 1972; that the documents will also show that the Proposed Intervening Party constructed the property in issue. It was contended that the Proposed Intervening Party only became aware of the proceedings when it carried out a search. R7 (808) The written response to the heads of argument of the Proposed Intervening Party first make an observation, by way of an introduction, that the Proposed Intervening Party had filed before Court a "sandwich" of two Motions, namely; an application to intervene and an application to rehear the appeal or alter the terms of the Judgment. It was pointed out that the second application assumes that this Court will automatically grant the application to join the Intervening Party to these Proceedings after a final Judgment of this Court. It was pointed out that these are two separate Motions which cannot be rolled up into one application. It was submitted that this Court has first to determine the propriety of the Motion to intervene and only upon that determination can it then proceed to determine the Motion to rehear the appeal. It was further submitted that the application to intervene is grossly misconceived. Turning to the propriety of the application to intervene in the proceedings after final Judgment of the Supreme Court, it was pointed out that the first question posed to the Court is whether an application to intervene can be made after final Judgment of this Court. It was pointed out that the starting point was Section 25, of the Supreme Court Act, Chapter 25 of the Laws of Zambia, which sets out the powers of the Supreme Court during the hearing R8 (809) of a Civil appeal. With respect to joinder of the interested party during the appeal, Rule 67 of the Supreme Court Rules was cited as making provision for that. It was submitted that the correct interpretation of Rule 67 is that the Supreme Court can only allow an interested party to join the proceeding before it delivers its decision; that after the Supreme Court, as the final Court of appeal, has delivered its Judgment it becomes funtus officio with respect to the application for intervener. The case of Attorney-General Vs Aboubacar Tall and Zambia Airways Corporation Limited11) was cited in support of the submission. It was submitted that Rule 67 of the Supreme Court Rules should be interpreted in similar lines as Order 14 Rule 5, namely; that parties can only intervene in proceedings in the Supreme Court before Judgment is delivered. It was pointed out that in the appeal that was before us, Judgment was delivered over two years; and prior to that the matter had been with the Courts for eleven years, while the facts giving rise to the appeal date back to 1976. It was submitted that Rule 67 is based on the principle of finality to litigation, which this Court has upheld on several times. The case of Bank of Zambia Vs Jonas Tembo and othersf2l was cited in support of the submission. The case of Trinity Engineering (PVT) Limited Vs Zambia Commercial Bank Limited13) was cited in support of the proposition that Judgments of R9 the Supreme Court are final and there can be no stay of execution (810) of a final Judgment. It was finally submitted that the application under Rule 67 was misconceived and offends the principle of finality of litigation and as such should be dismissed with costs. In his oral response, Mr. Jalasi repeated his written response. We have very carefully considered the arguments and the submissions in support and against the Motion in relation to J oinder of the Proposed Intervening Party to these proceedings. The fact that the Proposed Intervening Party were not a party to the appeal that was before us was not in dispute. However, Stand No. 3718, Kitwe, was one of the properties, among others, which this Court ordered, on the evidence, to be surrendered to the State. Rule 67 (1) of the Supreme Court Rules, Cap.25, one of the Rules on which part of the Motion was anchored reads as follows: "When an appeal is called for hearing or at any previ.ous time the Court or a judge thereof may, either on the application of any party interested or of its or his own motion, direct that the record of appeal, or any respondent's notice, be served on any party to the cause or matter who has not been served therewith, or any RlO (811) other person not already a party to the cause or matter, and may, for the purpose of such service, adjourn the hearing upon such terms as may appear to the Court or a judge thereof to be just, and may give such judgment and make such order as might have been given or made if the parties served with such record or notice had been originally parties." Quite clearly, this Rule envisages joinder of an interested party "When an appeal is called for hearing ... '' and not many months after the Judgment has been delivered as was the case here. One of the grounds of appeal during the hearing of the appeal that was before us was: "that the Court below was not entitled in law and fact and without evidence before it to hold that the accused before it were shareholders in the Appellant Company and were capable of passing property in the subject properties to the State; .... " But in that case, we accepted that Messrs A. E. Clarke and Company, a law firm, was acting for the three accused Directors and the subsidiary company. In paragraph four of the letter dated 14th March, 1976, addressed to the then Minister of Finance and National Planning as cited in our Judgment of 29t h March, 2006, the advocates wrote as follows: Rll (812) "In addition to the cash our clients will transfer to whom the Minister may direct the following leasehold properties owned by our clients or by the company (meaning the plaintif.fl in which they have an interest. All the said properties will be transferred free from mortgage and rental arrears thereof will accrue to the flats from the 1 st April, 1976 notwithstanding that final transfer of title may not have taken place (insertion in brackets mine). Plot subject Plot 2132, Kitwe Plot 3718, Kitwe Plot 4080, Kitwe Plot 4268, Kitwe Plot 1756, Kitwe Gross annual rental value K 3,600 28,000 21,000 3,600 3,600" It is quite clear to us that the Appellant in that appeal had an interest in Stand No. 3718, Kitwe. Then in the letter dated 11 th June, 1976, cited in our Judgment of 29th March, 2006, the Advocates wrote as follows: "11th June 1976 Lands Department, P. O. Box 69, LUSAKA R12 (813) Dear Sirs, Surrender of Stands Nos 2132, 3718, 4080, 4268 and 1756, Kitwe Thank you for your letter of the 3 rd June and we are pleased to hear from you. What you state is in fact correct and we will prepare the necessary deeds of surrender to the State as soon as all the certificates of title are in our possession. Yours faithfully A. E. Clarke & Co" In that Judgment, we concluded on ground four as follows: "We are satisfied that the Court below was on firm ground in holding that the accused before were shareholders in the Appellant/Plaintiff Company and were capable of passing property in the subject properties to the State. And they did pass title in the subject properties to the Respondent. Ground four also falls away." The first Motion before us is that the Proposed Intervening Party be joined to the appeal on ground that they have an interest in Stand No. 3718, Kitwe. R13 (814) Our Judgment ,vas delivered on 29th March, 2006. By way of Motion, filed on 29th October, 2007, the Proposed Intervening Party is, among others, requesting to be joined to the appeal on the ground that it has an interest in Stand No. 3718. In the case of the Attorney-General V. Tall and Zambia Airways !11, we considered the provisions of Order 14 Rule 5 of the High Court Rules, Cap 27, and when a Court can order Joinder. Order 14, Rule 5 ( 1) in part reads as fallows: "If it shall appear to the court or judge, at or before the hearing of a suit, that all the persons who may be entitled to, or claim some share or interest in, the subject matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court or judge may adjourn the hearing of the suit to a future day, to be jtXed by the court or judge, and direct that such person shall be made either plaintiffs or defendants in the suit, as the case may be ..... " In the Tall case (1), we interpreted these provisions as follows: "It follows therefore that in a proper case a court can join a party to the proceedings when both the plaintiff and defendant have closed their cases and before judgment has been delivered by invoking order 14 rule 5." R14 ( 815) This is still good law. The Proposed Intervening Party in the instant case has come too late in the day. Above all, we see no interest or locus standi in the appeal. The Motion for joinder is, therefore, dismissed as being misconceived. The Motion to rehear the appeal and or alter the terms of our Judgment of 29 th March, 2006, was dependent on the outcome of the Motion for joinder. The Motion for joinder having b een unsuccessful, the whole fused Motion is dismissed with costs to be taxed in default of agreement . . . . . . . . . . ---~\!~ .............. . E. L. Sakala CHIEF JUSTICE c.-·< . /iii: / i . . . . .. ·:_ ..... . ~--:-:-.~ -~ ....... . C. S. Mushabati SUPREME COURT JUDGE t, - • • • • • • • • • • • • • • :i ••••••.•••••••••••• . ••. D. K. Chirwa SUPREME COURT JUDGE /rs R14 (81 5 ) This is still good law. The Proposed Intervening Party in the instant case has come too late in the day. Above all, we see no interest or locus standi in the appeal. The Motion for joinder is, therefore, dismissed as being misconceived. The Motion to rehear the appeal and or a lter the terms of our Judgment of 29th March, 2006, was dependent on the outcome of the Motion for j oinder. The Mot ion for joinder having been unsuccessful, the whole fused Motion is dismissed with costs to be taxed in default of agreement . . #A\. C) .... ........ ~ ....... \,, ...... ........ . E. L. Sakala CHIEF JUSTICE --------. l, _._ -----------------... D. K. Chirwa SUPREME COURT JUDGE -'f . c::~ .. ( ............ t~~~~:.:· ......... ' C. S. Mushabati SUPREME COURT JUDGE . /rs