Kabwiri v Stanbic Bank Zambia Ltd and Anor (Appeal 193 of 2011) [2017] ZMSC 280 (14 July 2017)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 193/2011 J 1 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: SCZ/8/194/2011 JOHN FIDELIS KABWIRI APPELLANT AND STANBIC BANK (ZAMBIA) LIMITED lstRESPONDENT MBUCHI WITOLA 2nd RESPONDENT Coram: Chibomba, Hamaundu and Kaoma, JJS on 9th September, 2014 and the 14th July, 2017 For the Appellant : No Appearance For the Respondent: Mr. D. Chakoleka, Messrs Mulenga Mundashi and Company JUDGMENT HAMAUNDU, JS, delivered the Judgment of the Court Cases referred to: 1. Attorney General v Tall and Zambia Airways Corporation Limited [1995/1997] ZR 54 2. Eureka Construction Limited v Attorney General and Another [2008] 2 ZR 64 3. Ngoma and Others v LCM Company and Another [1999] ZR 75 4. Zulu v Avondale Housing Property Limited [1982] ZR 172 J 2 Rules referred to: 1. Order 14 of the High Court Rules, Chapter 27 of the Laws of Zambia 2. Order 14 rule 5(1) of the High Court Rules Chapter 27 of the Laws of Zambia This appeal is against a decision of the High Court, dismissing the appellant’s application for joinder. The back ground to this appeal is as follows: The 2nd respondent was at the material time the owner of Stand No. 38 Chudleigh in Lusaka by virtue of title deeds which she held. On 8th June, 2009 the 2nd respondent, as legal owner, created a first mortgage on the said Stand in favour of the 1st respondent in order to secure a sum of KI60 million which she had borrowed from the 1st respondent. The 2nd respondent having defaulted on her repayments, the 1st respondent commenced a mortgage action to recover the money which had now risen to K181,139,988.92. Alternatively, the 1st respondent sought an order of sale of the mortgaged property or foreclosure thereon. The 1st respondent could not serve the process on the 2nd respondent because she was no longer at her last known address. J 3 This prompted the 1st respondent to apply for substituted service by way of publication of the court process in a newspaper. This was granted. The respondent proceeded to publish the Originating Summons as well as notice of next scheduled date of hearing in the Times of Zambia newspaper of the 21st February, 2011. The 2nd respondent did not enter appearance even after the publication. The court proceeded to hear the 1st respondent and entered judgment for the sum claimed. The court ordered the sum to be paid within sixty days, failing which the 1st respondent was at liberty to take possession of the mortgaged property and exercise its right of sale. The 2nd respondent did not pay the money within the stipulated time, whereupon the 1st respondent issued a Writ of Possession and moved to take possession of the mortgaged property. It is then that the appellant applied under Order 14 of the High Court Rules to be joined to the action. In that application the appellant revealed the following: He was the occupant that had now been evicted by the 1st respondent. The house had belonged to Premium Oils Limited who had been his employers; he had occupied the house by virtue of his employment; in 1992, he had sued Premium Oils Limited J 4 for his terminal benefits and repatriation; in that action, he had obtained a High Court Order in 2004 which entitled him to live in the house until his benefits were paid; the Order also stated that he could be given ownership of the house in lieu of terminal benefits and it restrained his now former employers from selling the house unless his benefits were paid; in 2007, however, the 2nd respondent had sued him for vacant possession of the house; the 2nd respondent had failed to prosecute the action; and, he had, therefore, continued to live in the house until the 1st respondent came to evict him. The trial court interpreted Order 14 rule 5(1) of the High Court Rules, Chapter 27 of the Laws of Zambia in the light of our decisions in the cases of Attorney General v Tall and Zambia Airways Corporation Limited*1) and Eureka Construction Limited v Attorney Geheral and Another*2). In both cases, we essentially held that joinder can only validly occur before judgment has been delivered in a suit. The court then held that the appellant could not apply to be joined to the proceedings after judgment. The trial court, therefore, dismissed the appellant’s application. Hence this appeal. The appellant filed two grounds of appeal. J 5 • The first ground is that the learned trial judge erred in law and fact when he ruled that the proposed intervening party could not apply to be joined to the proceedings after judgment. The second ground is that the learned judge erred in law and fact when he dismissed the application to intervene as being misconceived without taking into account all the facts surrounding the application. At the hearing, counsel for the appellant was not present. Since the appellant had filed heads of argument, we decided to proceed and reserve the matter for judgment. We granted the respondents leave to file their heads of argument within fourteen days. At the time of writing this judgment, we had not received the written arguments from the respondents. We therefore, considered the appellant’s arguments only. In the first ground, the upshot of the appellant’s argument was that on the authority of the case of Ngoma and Others v LCM Company and Another!3), the court has jurisdiction to join a party to the action after judgment has been entered. It was submitted that by dismissing the appellant’s application, the trial court ignored our holding in cases such as Attorney General v Tall and Zambia Airways!1), and Zulu v Avondale J 6 Housing Property Limited!4), among others, that all matters in controversy between the parties should be adjudicated and determined with finality. In the second ground, the appellant’s submission was that he had, in his affidavit in support of the application, established that he had a prior High Court judgment which decreed that he be granted ownership of the house in dispute in lieu of his terminal benefits. On those facts, the appellant argued that he had a specified equitable interest in the disputed house which, on the authority of the London Ngoma and Others v LCM and Another!1) case, entitled him to be joined even after judgment had been entered. Those were the arguments. In London Ngoma and Others v LCM Company Limited and United Bus Company of Zambia Limited (Liquidator)!1), we allowed interested parties to join the action even after judgment. However, it must be appreciated that in that case what weighed heavily in favour of the applicants was the interest which they had shown to have in the subject matter of the action. In their case, the subject matter were the flats which they were in occupation of. The applicants demonstrated J 7 that they had in fact paid deposits towards their purchase. Hence we held in that case as follows: “In equity a person who has paid a deposit creates a specific interest and as such the appellants should have been notified of any action taking place concerning the properties on which they had paid a deposit and which were subject to the contract.” In this case, the appellant was in the house merely because he had a dispute with his former employer over his terminal benefits, a dispute which he could have pursued even without living in the house. The appellant argues that he obtained a High Court order in 2004 which allowed him to live in the house until his benefits were paid. Our view is that if his former employer disobeyed that order by selling the house to the 2nd respondent, it is his former employer whom he should have pursued for disobedience of that order. Otherwise, as we have stated, the appellant’s dispute with his former employer does not require him to be in possession of the house. Consequently, even if we were to accept that the appellant was not notified of this action he, nevertheless, did not demonstrate sufficient interest in the house to warrant his joinder to the action at all. J 8 Accordingly, this appeal is without merit. We dismiss it. We award costs to the 1st respondent, to be taxed in default of agreement. H. Chibomba SUPREME COURT JUDGE E. M. Hamaundu SUPREME COURT JUDGE R. M. C. Kaoma SUPREME COURT JUDGE